Smt. Kanta Devi, Haldwani V. ITO, Haldwani

ITA 284/DEL/2009

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3502 (ITAT-DELHI)
• Duration Of Justice: 8 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 18-04-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 27-01-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: UMESH CHAND DUBEY
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Principle of natural justice

Judgement Text

1 ITA NO. 284/DEL/2009 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI R. S. SYAL, VICE PR ESIDENT AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A .NO. 284/DEL/2009 (ASSESSM ENT YEAR-2005-06) SMT. KANTA DEVI SADAR BAZAR HALDWANI (APPELLANT) VS INCOME TAX OFFICER - 2 HALDWANI (RESPONDENT) APPELLANT BY SH. RAKESH GUPTA, ADV RESPONDENT BY SH. UMESH CHAND DUBEY, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED AGAINST THE ORDER DATED 19/11/ 2008 PASSED BY THE CIT(A)S II, DEHRADUN. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS SHOWN PURCHASE OF SHARES OF M/S ROHAN FINANCE COMPANY AND M/S SUBHASH CAPITAL LTD. THESE SHARES WERE CLAIMED TO BE SOLD AS SET OUT IN THE AS SESSMENT ORDER BY THE ASSESSING OFFICER. THE ASSESSING OFFICER CONDUCTED ENQUIRIES WHICH WERE FURTHER CONFRONTED TO THE ASSESSEE. SUBSEQUENTLY, T HE A.O HAS CONDUCTED MORE ENQUIRIES AND THE INFORMATION COLLECTED FROM CIC, C ALCUTTA, DDIT (INVESTIGATION) AND REGISTRAR SHARE TRANSFER AGENT WHICH REVEALED THAT BOOKING OF LONG TERM CAPITAL ACCOUNT BY THE ASSESSEE IS NOT HING BUT MANIPULATION DATE OF HEARING 18.04.2017 DATE OF PRONOUNCEMENT 19.04.2017 2 ITA NO. 284/DEL/2009 CARRIED OUT WITH ACTIVE CONVEYANCE OF THE TENDER BR OKER AS PER THE ASSESSING OFFICER. THE ASSESSING OFFICER MADE AN ADDITION OF RS.60,38,146/- AS UNEXPLAINED MONEY U/S 69A ON ACCOUNT OF SHARES SOLD BY THE ASSESSEE. 3. AGGRIEVED BY THIS THE ASSESSEE FILED APPEAL BEFO RE THE CIT(A). THE MAIN CONTENTION OF THE ASSESSEE BEFORE THE CIT(A) WAS TH AT VARIOUS EVIDENCE SUCH AS COMMUNICATION OF THE BROKER WITH THE DDIT (INV.) KO LKATA WAS NOT FURNISHED TO THE ASSESSEE OR CONFRONTED OF ANY MATERIAL IN A.OS POSSESSION TO THE ASSESSEE AT ANY POINT OF TIME DURING ASSESSMENT PROCEEDINGS. THE ASSESSEES FURTHER GROUND BEFORE THE CIT(A) WAS THAT THE ASSESSEE WAS GIVEN COPIES OF SOME DOCUMENTS RECEIVED FROM CALCUTTA STOCK EXCHANGE AND DDIT (INV.) KOLKATA ON 27/12/2007 WHILE SHOW CAUSE NOTICE WAS ISSUED ONE D AY PRIOR I.E. 26/12/2007. THUS, ASSESSEE WAS GIVEN ONLY A DAYS TIME FOR REPLY AND COMPLIANCE TO COMPLETE THE FORMALITY OF CONFRONTATI ON OF EVIDENCE TO BE USED IN ASSESSMENT PROCEEDINGS WHICH WAS AGAINST THE PRINCI PLES OF NATURAL JUSTICE. THE ASSESSEE ALSO SUBMITTED BEFORE THE CIT(A) THAT THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY AS SUCH ABOUT THE MATERIAL WHICH WA S SUBMITTED BEFORE THE ASSESSING OFFICER BY THE DDIT (INV.) CALCUTTA. THE CIT(A) VIDE DISMISSING THE APPEAL OF THE ASSESSEE HAS ALSO NOT GIVEN ANY DETAI LED REASONING IN RESPECT OF THE SAID DOCUMENTS. 4. THE LD. AR SUBMITTED THAT SINCE THE EVIDENCE WHI CH WAS BEFORE THE ASSESSING OFFICER WAS NOT CONFRONTED TO THE ASSESSE E AND NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE FOR PLEADING HIS CASE BEFORE THE ASSESSING OFFICER, IT WILL BE APPROPRIATE TO REMAND THE MATTER BEFORE THE ASSE SSING OFFICER AND THE ASSESSING OFFICER BE DIRECTED TO TAKE COGNIZANCE O F ALL THE MATERIALS PLACED BEFORE THE DDIT ((INV.) CALCUTTA AND THE CALCUTTA S TOCK EXCHANGE DOCUMENTS BY GIVING PROPER HEARING TO THE ASSESSEE BEFORE THE ASSESSING OFFICER . THE LD. DR AGREED THE SUBMISSIONS MADE BY THE LD. AR. 3 ITA NO. 284/DEL/2009 5. WE HAVE HEARD BOTH THE SIDES. IT IS PERTINENT TO NOTE THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAS NOT GIVEN ANY FIN DINGS IN RESPECT OF THE DOCUMENTS RECEIVED BY THE ASSESSING OFFICER FROM D DIT (INV.) CALCUTTA AND CALCUTTA STOCK EXCHANGE. NO AMPLE OPPORTUNITY WAS GRANTED TO THE ASSESSEE BEFORE THE ASSESSING OFFICER. HENCE, IN THE INTERE ST OF JUSTICE IT IS APPROPRIATE TO REMAND THIS MATTER BEFORE THE ASSESSING OFFICER BY TAKING COGNIZANCE OF ALL THE DOCUMENTS AND GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONFRONTING THE SAID DOCUMENTS AND PLEADING HER CAS E BEFORE THE ASSESSING OFFICER. 6. IN RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH APRIL, 2017 . SD/- SD/- (R. S. SYAL) (SUCHITRA KAMBLE) VICE PRESIDENT JUDICIAL MEMBER DATED: 19/04/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. 284/DEL/2009 DATE 1. DRAFT DICTATED ON 18/04/2017 PS 2. DRAFT PLACED BEFORE AUTHOR 18/04/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 19.04.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 1 9 .04.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 5 ITA NO. 284/DEL/2009