Raju Singh Nagar, V. ACIT, Ward-1(4),

ITA 2905/DEL/2004

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8630 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 15-07-2009
• Assessment Year: 1997-1998
• Appeal Filed On: 16-06-2004
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B K GUTPA
• Assessee Lawyers: O P SAPRA
• Keywords: Gift
• Section: 142(1); 143(2); 148; 144

Judgement Text

I.T.A. NO.2905/DEL/2004 1 IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH D NEW DELHI, BENCH D NEW DELHI, BENCH D NEW DELHI, BENCH D BEFORE SHRI K. G. BANSAL, ACCOUTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO. 2905 /DEL/2004 (ASSESSMENT YEAR 1997-98) DR. RAJU SINGH NAGAR, VS. ACIT, WARD 1(4), RDC-128, RAJU NAGAR, GHAZIABAD GHAZIABAD (APPELLANTS) (RESPONDENTS) APPELLANT BY: SHRI O P SAPRA, ADV. RESPONDENT BY: SHRI B K GUTPA, SR. DR ORDER PER GEORGE MATHAN, JM: 1. THIS APPEAL BY THE ASSESSEE PREFERRED AGAINST TH E ORDER OF LD. CIT(A) GHAZIABAD IN APPEAL NO.208/2001- 02.GZB DATED 3.2.2004 FOR THE ASSESSMENT YEAR 1997- 98. SHRI O P SAPRA, ADVOCATE APPEARED ON BEHALF OF THE ASSESSEE AND SHRI B K GUPTA, SR. DR REPRESENTED FOR THE REVENUE. 2. AT THE TIME OF HEARING THE LD. A.R. SUBMITTED TH AT HE HAD FILED AN APPLICATION FOR PERMISSION TO FILE ADD ITIONAL GROUNDS OF APPEAL ON 05.05.2009 WHEREIN HE HAS CHALLENGED THE SERVICE OF NOTICE U/S 148 AS ALSO TH E SERVICE OF NOTICE U/S 143(2) AND 142(1) OF THE ACT. AT I.T.A. NO.2905/DEL/2004 2 THE TIME OF HEARING, IT WAS THE SUBMISSION THAT HE DID NOT WISH TO PRESS THE SAID ADDITIONAL GROUND AND CONSEQUENTLY, THE ADMISSION OF THE SAME ITSELF IS REJECTED. 3. IT WAS HIS FURTHER SUBMISSION THAT IN THE COURSE OF ASSESSMENT, THE ASSESSEE HAD REQUESTED FOR A SHORT TIME FOR PRODUCING THE CONCERNED CREDITORS FROM WHOM THE CASH CREDIT WAS RECEIVED BY THE ASSESSEE AND INTROD UCED AS ITS CAPITAL. IT WAS THE SUBMISSION THAT THOUGH ADEQUATE TIME WAS AVAILABLE FOR COMPLETION OF THE ASSESSMENT, THE ASSESSING AUTHORITY HAD DENIED THE ASSESSEE THE ADEQUATE TIME AND HAD COMPLETED THE ASSESSMENT ON 15.1.2002 U/S 144 OF THE ACT. IT WAS HIS FURTHER SUBMISSION THAT THE REMAND REPORT HAD ALSO BEEN CALLED FOR BY THE CIT(A) IN THE APPELLATE PROCEEDIN GS. IN THE COURSE OF REMAND PROCEEDINGS, THE ASSESSEE H AD PRODUCED ONE OF THE PERSONS AND HE HAD ALSO CONFIRM ED THE TRANSACTION AND THE LD. CIT(A) HAD DELETED THE ADDITION MADE ON ACCOUNT OF THE SAID PERSON. IT WA S THE SUBMISSION THAT EVEN THOUGH IT HAS BEEN RECORDED IN THE ORDER OF LD. CIT(A) THAT THE NOTICE OF HEARING AND THE COPY OF THE REMAND REPORT HAD BEEN SENT TO THE ASSE SSEE AND COPY OF REMAND REPORT HAD NOT BEEN GRANTED TO T HE ASSESSEE. IT WAS THE SUBMISSION THAT HE HAD NO OBJ ECTION IF THE ISSUE IN THE APPEAL IS RESTORED TO THE FILE OF THE ASSESSING AUTHORITY FOR RE-EXAMINATION AND HE HAS I.T.A. NO.2905/DEL/2004 3 SPECIFICALLY GIVE AN UNDERTAKING THAT HE WOULD PROD UCE THE CREDITORS AND THE DONORS BEFORE THE ASSESSING AUTHORITY FOR EXAMINATION WHEN CALLED FOR. IT WAS THE SUBMISSION THAT THE AFFIDAVIT FROM THE DONORS AND T HE CREDITORS HAD BEEN PRODUCED ALONG WITH CONFIRMATION LETTERS FROM THE VARIOUS FINANCIAL INSTITUTIONS. I N REPLY, THE LD. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING AUTHORITY AND THE CIT(A). IT WAS THE SUBMISSION THAT THE SECOND OPPORTUNITY SHOULD NOT B E GRANTED TO THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOTICED THAT IN THE ORDER, THE LD. CIT(A) HAS ACCEPTED THAT AFFIDAVITS HAVE BEEN FILED FROM THE DONORS AND CONFIRMATION LETTER FROM THE FINANCIAL INSTITUTIONS AND FROM SOME OF THE CREDITORS HAD BEEN PRODUCED. OBVIOUSLY WHEN AFFIDAVITS ARE FILED THE WITNESS BECOMES THAT OF THE ASSESSEE AND IT IS OPEN TO THE ASSESSING AUTHORITY TO CROSS-EXAMINE SUCH WITNESSES TO DISPROVE THE AFFIDAVITS. IT IS NOTICED THAT THIS H AS NEITHER BEEN DONE BY THE ASSESSING AUTHORITY NOR BY THE LD. CIT(A). IT IS FURTHER NOTICED THAT ONE OF THE PERS ONS HAD APPEARED AND HAD CONFIRMED THE TRANSACTION WITH THE ASSESSEE AND THE ADDITION MADE ON ACCOUNT OF SUCH PERSON HAS ALSO BEEN DELETED. THE ASSESSEE HAS BRO UGHT ON RECORD THE COPIES OF THE AFFIDAVITS AS FILED BEF ORE THE LD. CIT(A). IT IS NOTICED FROM THE AFFIDAVITS THAT ALL THE I.T.A. NO.2905/DEL/2004 4 DEPONENTS HAVE CONFIRMED THAT THEY ARE WILLING TO APPEAR FOR EXAMINATION. IT IS ALSO NOTICED THAT LD . A.R. HAS SPECIFICALLY SUBMITTED THAT HE WOULD BE WILLING TO PRODUCE THE PERSONS FOR EXAMINATION WHEN CALLED FOR . IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ISSUE IN THIS APPEAL SHOULD BE RESTORED TO THE FILE OF TH E ASSESSING AUTHORITY FOR RE-EXAMINATION AND RE- ADJUDICATION AFTER EXAMINING THE WITNESSES AS MAY B E PRODUCED BY THE ASSESSEE TO SUBSTANTIATE HIS CLAIM OF GIFTS AND LOANS. IN THESE CIRCUMSTANCES, THIS ISSU E IS RESTORED TO THE FILE OF THE ASSESSING AUTHORITY FOR RE- ADJUDICATION IN ACCORDANCE WITH LAW AFTER GRANTING OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CAS E. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. 6. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 17 TH JULY 2009. (K.G.BANSAL (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:17 TH JULY, 2009 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI