Amit Kumar Gupta, New Delhi V. ITO, New Delhi

ITA 2908/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0718 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-12-2010
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS PRATIMA KAUSHIK
• Keywords: Additional evidence; Reasonable cause; Set aside
• Section: 144

Judgement Text

I.T.A. NO.2908 /DEL/10 1/6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 2908/DEL/2010 ASSESSMENT YEAR : 200708 SHRI AMIT KR. GUPTA, ITO, 11225, LIBRARY ROAD, WARD-39 (1), NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AAJPG AAJPG AAJPG AAJPG- -- -0632 0632 0632 0632- -- -P PP P APPELLANT BY : NONE RESPONDENT BY : MRS. PRATIMA KAUSHIK, SR. DR. ORDER PER A.K. GARODIA, AM: THIS IS AN ASSESSEE'S APPEAL FILED AGAINST THE ORDER OF LD CIT(A)- XXVIII, NEW DELHI DATED 15.3.2010 FOR ASSESSMENT YEAR 2 007-08. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, NEITHER THE ASSESSING OFFICER OR THE LD CIT(A) HAS GIVEN REASONABLE OPPORTUNITY TO THE APPELLANT TO PROVE ITS CASE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH4E CASE AND IN LAW, THE CIT(A) HAS ERRED IN HOLDING ALL THE EVIDEN CE LED BEFORE HIM BY THE ASSESSEE AS ADDITIONAL EVIDENCE AND REJECTED THE SAME ON THE FRIVOLOUS GROUND OF THE SAME FALLING UNDER RULE 46A OF THE INCOME TAX ACT, 1961. IT IS SUBMITTED THAT CIT (A) IN AN . I.T.A. NO.2908/DEL/10 2/6 APPEAL BEFORE HIM IS EMPOWERED TO MAKE FURTHER INQUI RIES EITHER BY HIMSELF OR BY DIRECTING THE ASSESSING OFFICER TO DO S O AND RECEIVE THE RESULT OF THE OF THE SAME. NO INQUIRIES WE RE MADE BY THE CIT(A) FROM THE ASSESSEE. IT IS SUBMITTED THAT THE EV IDENCE PRODUCED BEFORE THE CIT(A) IS FRESH EVIDENCE SUBMITTED FIRST TIME IN THE HEARING BEFORE THE LD CIT(A) AND NOT ADDITIO NAL EVIDENCE AS STATED BY THE CIT(A) IN THE IMPUGNED ORDER. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS NOT GIVEN REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE. THE ORDER HAS BEEN PASSED HURRIEDLY WITHOUT GIVING ANY JUSTIFICATION AND REASON ABILITY. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE CIT(A) WITHOUT APPLICATION OF JUDICIAL MIND HAS DENI ED TO TAKE INTO CONSIDERATION THE DOCUMENTS/EVIDENCE FILED BY THE ASSE SSEE UNDER RULE 46A. IT IS SUBMITTED THAT THE APPELLATE AU THORITY IS REQUIRED TO EXAMINE THE CIRCUMSTANCES DE NOVO ON WHAT EVER EVIDENCE THAT MAY BE PUT BEFORE THE APPELLATE COURT . 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN NOT TAKING INTO CONSIDERATIO N THAT THE CERAMIC INDUSTRY IS UNDER HEAVY SLOW DOWN. DURING THE PARTICULAR TIME I.E. 2007 TO 2009 INDIGENOUS INDUSTRY WAS ON THE VERGE SHUT DOWN. IT TOOK TIME FOR THE ASSESSEE TO GATHER EVIDENCE AS MOST OF THE COMPANIES HAD SHIFTED/CLOSED THEIR OFFICES DUE TO H EAVY SLUMP. IT WAS DIFFICULT FOR THE ASSESSEE TO TRACE OUT T HE COMPANIES AND TO FIND OUT OLD RECORDS AND GET CONFIRM ATIONS. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN NOT TAKING INTO CONSIDER ATION THAT THE . I.T.A. NO.2908/DEL/10 3/6 DOCUMENTS/EVIDENCE PROCURED AND SUBMITTED BY THE ASSESSEE WERE THIRD PARTY AND WERE NOT IN THE CUSTODY OF THE ASSESSEE. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT OF L AW THAT RULE 46A(4) OF THE ACT PROVIDES THAT NOTWITHSTANDING RULE 46A(1), THE APPELLATE AUTHORITY CAN PERMIT PRODUCTION OF DOCUME NTS WHICH ENABLES HIM TO DISPOSE OF THE APPEAL. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN NOT ADMITTING THE DOCUMENTS/E VIDENCE PLACED BEFORE HIM KNOWING FULLY WELL THAT THE ASSESSEE HAD REASONABLE CAUSE FOR NOT PRODUCING THE SAME BEFORE THE ASSESSING OFFICER., 9. THAT THE SAID ORDER HAS BEEN PASSED BY THE LD CIT(A ) MECHANICALLY WITHOUT APPLICATION OF JUDICIAL MIND. 10. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN UPHOLDING THE CONTENTION OF THE ASSESSING OFFICER OF MAKING ADDITION OF `.50,000/- ON ACCOUNT OF LOW WITHDRAWALS. 11. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN UPHOLDING THE CONTENTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF `.50,000/- ON ACCOUNT OF UNVERIFIABLE NATURE OF EXPENSES. 12. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN UPHOLDING THE CONTENTION OF THE ASSESSING . I.T.A. NO.2908/DEL/10 4/6 OFFICER IN MAKING ADDITION OF `.3,76,322/- ON ACCOU NT OF UNPROVED UNSECURED LOANS. 13. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN UPHOLDING THE CONTENTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF `.29,97,127/- ON ACCO UNT OF UNVERIFIED SUNDRY CREDITORS. 14. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE CONTENTION OF THE ASSESSING OFFICER IN PASSING THE ORDER U/S 144 OF THE ACT. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF NOTICE SENT THROUGH RAPD AT THE ADDRESS PROVIDED BY THE ASSESSEE IN F ORM NO.36. NO CHANGE IN ADDRESS HAS BEEN INTIMATED BY THE ASSESSEE. THE NOTICE HAS NOT COME BACK UN-SERVED AND HENCE, THE SERVICE OF NOTICE IS PRESUMED. THERE IS NO REQUEST FOR ADJOURNMENT FROM TH E ASSESSEE AND HENCE, WE DECIDE THIS APPEAL OF THE ASSESSEE EX PARTE QU A THE ASSESSEE. 3. LD DR OF THE REVENUE SUPPORTED THE ORDER OF THE A UTHORITIES BELOW. IT WAS POINTED OUT BY THE BENCH THAT THE ASSESSME NT ORDER IS PASSED BY THE ASSESSING OFFICER U/S 144 AND LD CIT(A) HAS NOT ACCEPTED THE REQUEST OF THE ASSESSEE FOR ADMISSION OF ADDI TIONAL EVIDENCE AND ALTHOUGH A SPECIFIC OBJECTION WAS RAISE D BY THE ASSESSEE BEFORE LD CIT(A) THAT THE LOANS OF `.3,76,322/- WHIC H WERE ADDED BY THE ASSESSING OFFICER ARE OLD LOANS NOT ACCEPTED DURING THIS YEAR BUT NO FINDING HAS BEEN GIVEN BY THE LD CIT(A) AS TO WHETHER THESE ARE OLD LOANS OR NEW LOANS AND WITHOUT GIVING ANY FINDING ON THIS ASPECT, THE ADDITION HAS BEEN CONFIRMED. REGARDING THE ADDITION MADE BY THE ASSESSING OFFICER OF `.29.97 LAKHS ON ACCOUNT OF UNVERIF IED SUNDRY . I.T.A. NO.2908/DEL/10 5/6 CREDITORS ALSO. IT WAS POINTED OUT BY THE BENCH THAT N OTHING IS CLEAR AS TO WHETHER THESE ARE FRESH CREDITORS OF THIS YEAR OR OL D CREDITORS AND WHETHER THE CONFIRMATIONS ARE AVAILABLE ON RECORD OR NOT AND HENCE, IT IS A FIT CASE TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT. IN REPLY, LD DR OF THE REVENUE STRONGLY OPPOSED REGARDING THIS PROPOSITION PUT FORWARD BY THE BENCH. 4. WE HAVE HEARD THE SUBMISSIONS OF THE LD DR OF THE RE VENUE AND HAVE GONE THROUGH THE ORDER OF AUTHORITIES BELOW. WE FIND THAT ADDITION OF `.50,000/- WAS MADE BY THE ASSESSING OFFICER ON THIS A LLEGATION THAT THE DRAWINGS SHOWN BY THE ASSESSEE IS LOW. THE ASSESSEE HAS SHOW N DRAWINGS OF `.70,063/-. BEFORE LD CIT(A), IT WAS SUBMI TTED BY THE ASSESSEE THAT THE ASSESSEE HAS SMALL FAMILY OF FOUR MEMBERS, T WO ADULT AND TWO SMALL KIDS AND THEY ARE RESIDING IN PARE NTAL HOUSE. IT WAS ALSO SUBMITTED BEFORE LD CIT(A) THAT THE WIFE OF THE ASSESSEE IS ALSO HAVING INCOME AND SUPPORTING FAMILY BUT IN SPITE OF THIS, THE ADDITION HAS BEEN CONFIRMED BY THE LD CIT(A) ON THIS BASIS THAT NO EVIDENCE WAS FURNISHED REGARDING THIS CLAIM OF THE ASSESSEE THAT HIS WI FE IS HAVING ANY INCOME OUT OF WHICH SHE CONTRIBUTE TO FAMILY EXP ENDITURE. REGARDING THE ADDITION MADE BY THE ASSESSING OFFICER OF `.50,000/- TOWARDS BOOK RESULTS, IT IS NOTED BY THE LD CIT(A) THAT IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS POINTED OUT THAT THE ASSESSEE HAS FAILED TO PRODUCE BOOKS OF ACCOUNTS, BILLS AND VOUCHERS BUT HE HAS NOT ALLOWED THE ASSESSEE AN OPPORTUNITY TO PR ODUCE THE BOOKS OF ACCOUNT BEFORE HIM ALTHOUGH THE SAME WAS OFFE RED BY THE ASSESSEE AS NOTED BY THE LD CIT(A) IN PARA NO.6.2 OF HIS ORDER. SIMILARLY, REGARDING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UN-SECURED LOANS AND SUNDRY CREDITORS, NO FI NDING IS GIVEN BY THE LD CIT(A) AS TO WHETHER THESE ARE OLD CREDITS COMING FORWARD FROM EARLIER YEARS OR THESE ARE NEW CREDITS IN THE PRE SENT YEAR. UNDER THESE FACTS, WE FEEL THAT IN THE INTEREST OF JUSTICE, T HE MATTER SHOULD BE . I.T.A. NO.2908/DEL/10 6/6 RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR D E NOVO ASSESSMENT AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD CI T(A) AND RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE ASSE SSING OFFICER FOR DE NOVO ASSESSMENT AFTER PROVIDING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. SINCE WE ARE SENDING THE MATTER BACK T O THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT, WE ARE NOT MAKIN G ANY COMMENT ABOUT THE MERITS OF THE CASE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOW ED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JANUARY, 2011. SD/- SD/- (I.P. BANSAL) (A.K. GARO DIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 7.11.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).