Shalender Kumar Gupta, Delhi V. ITO, New Delhi

ITA 2895/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58535 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 25-01-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SRUJANI MOHANTY
• Assessee Lawyers: SANCHIT JAIN
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Reasonable cause
• Section: 143(3)

Judgement Text

ITA NOS. 2895 & 2936/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2895/DEL/2010 A.Y. : 2007-08 SHALENDER KUMAR GUPTA, (PROP. HITKARI AGENCIES), 10227-A, LIBRARY ROAD, AZAD MARKET, DELHI (PAN : AANPK 1262B) VS. ITO, WARD 39(1), NEW DELHI AND ITA NO. 2936 /DEL/2010 A.Y. 2007-08 ITO, WARD 39(1), VS. SH. SHALENDER KUMAR, NEW DELHI PROP. HITKARI AGENCIES, ROOM NO. 237, CR BUILDING, 10227-A, LIBRARY ROAD , NEW DELHI AZAD MARKET, DELHI (PAN: AANPK 1262B) (APPELLANTS ) (APPELLANTS ) (APPELLANTS ) (APPELLANTS ) (RESPONDENTS ) (RESPONDENTS ) (RESPONDENTS ) (RESPONDENTS ) ASSESSEE BY : SH. SANCHIT JAIN, CA DEPARTMENT BY : MRS. SRUJANI MOHANTY, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM THESE CROSS APPEALS BY THE ASSESSEE AND THE REVEN UE EMANATE OUT OF ORDER OF THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) DATED 01.3.2010 AND PERTAIN TO ASSESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED IN THE ASSESSEES APPEAL REA D AS UNDER:- ITA NOS. 2895 & 2936/DEL/2010 2 (1) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) ERRED ON FACTS AND IN LAW IN NOT ALLOWING THE ADMISS ION OF ADDITIONAL EVIDENCE. (2) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED ON FACTS AND IN LAW CONFIRMING THE ADDITION OF ` 60,000/- ON ACCOUNT OF LOW PERSONAL WITHDRAWALS ON ADHOC BASIS. (3) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED ON FACTS AND IN LAW IN HYPOTHETICALLY MAKING ADDITION OF ` 10,00,000/- TOWARDS THE TRADING RESUL TS. (3.1) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) ERRED ON FACTS AND IN LAW IN NOT REDUCING ` 1,28,1 48/-, BEING THE NET PROFIT ALREADY DECLARED BY THE APPELL ANT. (4). THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITI ON OF ` 1,00,000/- ON ACCOUNT OF NEW UNSECURED LOANS RECEIVED BY THE APPELLANT. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND O R VARY FROM THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 3. THE GROUNDS RAISED IN THE REVENUES APPEAL READ AS UNDER:- (I) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETED THE ADDITION OF ` 32,60,170/- WHICH MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED ITA NOS. 2895 & 2936/DEL/2010 3 SUNDRY CREDITORS AND IN PLACE OF THAT ESTIMATING TH E PROFIT OF THE ASSESSEE AT ` 10 LACS THEREBY ALLOWIN G A RELIEF OF ` 22,60,170/-. (II) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETED THE ADDITION OF ` 1,03,085/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NON PRODUCTION OF PROOF FOR CST, ON THE GROUND THAT SEPARATE ADDITIO N HAS BEEN MADE TO ESTIMATING THE PROFIT OF THE ASSESSEE. (III) THE APPELLANT CRAVES TO ADD, AMEND OR MODIFY TH E GROUNDS OF APPEAL AT ANY TIME. 4. IN THIS CASE THE ASSESSMENT WAS FRAMED U/S 143(3) OF THE IT ACT. IN THE ASSESSMENT THE ASSESSING OFFICER MADE THE F OLLOWING ADDITIONS ON ACCOUNT OF LOW WITHDRAWALS ` 50,000/-; ADDITION ON ACCOUNT OF SUNDRY CREDITORS ` 32,60,170; ADDITION ON ACCOUNT O F UNSECURED LOANS 1,00,000; TRADING ADDITION ` 1,00,000/- AND ADDI TION ON ACCOUNT OF ADDITIONAL CST ` 1,03,085/-. 5. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) GRANTED PARTIAL RELIEF. 6. AGAINST THIS BOTH ASSESSEE AND REVENUE ARE IN AP PEAL BEFORE US. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. AT THE OUTSET, IT HAS BEEN THE CONTENTION OF THE LD. C OUNSEL OF THE ASSESSEE THAT LD. COMMISSIONER OF INCOME TAX (APPEA LS) HAS DONE INJUSTICE BY NOT ADMITTING THE ADDITIONAL EVIDENCES. WE FIND ON THIS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS HE LD THAT ITA NOS. 2895 & 2936/DEL/2010 4 ADEQUATE OPPORTUNITY HAS BEEN GIVEN TO THE ASSESSEE DURING ASSESSMENT PROCEEDINGS, BUT THE ASSESSEE HAS WITHO UT ANY REASONABLE CAUSE, FAILED TO AVAIL THE OPPORTUNITIE S GRANTED. HENCE, THE REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE IS REJECTED. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSSE ES CASE WAS NOT PROPERLY EXAMINED BY THE ASSESSING OFFICER AND ADD ITIONAL EVIDENCES HAVE NOT BEEN ACCEPTED BY THE LD. COMMISSIONER OF IN COME TAX (APPEALS), WHICH RESULTED IN ADDITION IN THIS CASE. HE PLEADED THAT ONE OPPORTUNITY MAY BE GRANTED BEFORE THE ASSESSIN G OFFICER TO CANVASS THE CASE PROPERLY. WE HAVE CAREFULLY CO NSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT NATURAL JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF TH E ASSESSING OFFICER TO CONSIDER THE ISSUE AFRESH, IN LIGHT OF THE ADDIT IONAL EVIDENCES BEING SUBMITTED BY THE ASSESSEE. NEEDLESS TO ADD THAT TH E ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE AND REVENUE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/1/201 2. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [ [[ [SHAMIM YAHYA] SHAMIM YAHYA] SHAMIM YAHYA] SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 25/1/2012 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. DR,IT AT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES