Praveen Tyagi Prop., Ghaziabad V. ITO, Ghaziabad

ITA 2957/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52461 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 06-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: DINESH MALHOTRA
• Keywords: Principle of natural justice; Additional evidence
• Section: 68; 144

Judgement Text

ITA NO. 2957/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2957/DEL/2011 A.Y. : 2006-07 PRAVEEN TYAGI, PROP. P.D. AGENCIES, GHAZIABAD C/O SH. AKHILESH KUMAR, ADVOCATE, CHAMBER NO. 206-207, ANSAL SATYAM, RDC RAJ NAGAR, GHAZIABAD (PAN : AEIPT8359M) VS. ITO WARD 2(1), GHAZIABAD (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. DINESH MALHOTRA, CA DEPARTMENT BY : S MT. ANUSHA KHURANA, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 22.3.2 011PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED READ AS UNDER:- 1) THAT, THE ORDER OF LEARNED LOWER AUTHORITY IS B AD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE WHIC H IS UNSUSTAINABLE. 2) THAT, THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN UPHOLDING THE ADDITION OF TOTAL CAPITAL INTRODUC ED AND TOTAL ITA NO. 2957/DEL/2011 2 LOANS AS PER BALANCE SHEET ON RECORD (ALMOST ALL THE CREDIT SIDE), WITHOUT CONSIDERING THE EVIDENCES PLACED BEFORE HIM, IN WHOLE DISREGARD OF THE FACTS/CIRCUMSTANCES OF THE CASE AN D AGAINST THE HUMAN PROBABILITY MERELY ON TECHNICAL BASIS BY STATI NG THAT IF SECTION 68 IS NOT APPLICABLE THEN DEPTT. IS NOT CON CERNED WHETHER UNEXPLAINED FUNDS BELONG TO APPELLANT OR OTHER PERS ON BUT AGAINST THE SETTLED LAW THAT TAX IS TO BE IMPOSED ON THE CORRECT INCOME. 3)THAT, WITHOUT PREJUDICE TO ABOVE AND IN ADDITION T O ABOVE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N SUMMARILY REJECTING THE GROUND THAT BALANCE SHEET IS NOT DEPICTING CORRECT FIGURES MERELY BY STATING THAT AS SESSEE HIMSELF HAS SHOWN SUCH FIGURES AND HE HAS FAILED TO DO HIS LEGAL DUTY TO APPEAR BEFORE AO, WHICH IS NOT ONLY AGAINST THE MAT ERIAL PLACED BEFORE HIM BUT AGAINST THE SETTLED LAW THAT ASSESSEE CAN ALWAYS SHOW THAT HIS ADMISSION WAS WRONG. 4)THAT, WITHOUT PREJUDICE TO ABOVE, THE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONSIDERING THE G ROUND THAT ADDITIONS ARE AGAINST THE TRUE SPIRIT OF SECTION 14 4 OF THE ACT. 5) THAT, THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) FAILED TO APPRECIATE THE FACT THAT ASSESSEE COULD NOT GET PROPER OPPORTUNITY TO PRESENT HIS CASE BEFORE LEARNED AO I N THE PECULIAR CIRCUMSTANCES OF THE CASE UNDER WHICH HIS COUNSEL FA ILED TO ATTEND THE ASSESSMENT PROCEEDINGS AND HUGE ADDITION S WERE MADE EVEN WITHOUT ANY SHOW CAUSE NOTICE ON THE PROPO SED ADDITIONS. ITA NO. 2957/DEL/2011 3 6) THAT, THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) IS WRONG IN HOLDING THE IMPORTANT EVIDENCES/AFFIDAVIT FILED BEFORE HIM UNDER RULE 46A, AS FALSE WITHOUT EVEN EXAMINING SUCH EVIDENCES/ FINDING ANY DEFECT/ANOMALY IN THE SAME A ND IN TOTAL DISREGARD OF THE FACTS, WHILE SUCH EVIDENCES WAS NE CESSARY FOR THE PROPER DISPOSAL OF APPEAL, WHICH IS NOT ONLY AG AINST THE PROVISIONS OF LAW BUT ALSO AGAINST THE PROVISIONS O F NATURAL JUSTICE. 7)AS SUCH, ALL THE ADDITIONS AMOUNTING TO RS 24,11, 569/- ARE ARBITRARY AND BAD IN THE LAW, WHICH ARE INFLICTING HARDSHIP TO A BONAFIDE POOR PERSON, HENCE IT IS HEREBY PRAYED THA T ALL THE ADDITIONS MAY KINDLY BE QUASHED IN TOTO. HOWEVER AS AN ALTERNATIVE, IT IS ALSO PRAYED THAT THE MATTER MAY K INDLY BE SENT BACK TO AO TO CONSIDER ADDITIONAL EVIDENCES WITH AN OPPORTUNITY. 3. IN THIS CASE ASSESSMENT WAS FRAMED U/S 144 OF TH E IT ACT. ASSESSING OFFICER NOTED THAT DURING THE YEAR THE AS SESSEE HAS DISTRIBUTORSHIP OF HALDIRAM, RENOWNED NAME IN THE S WEET, NAMKIN AND BISCUITS ETC. DESPITE NOTICES NO COMPLIANCE WAS MADE . ASSESSING OFFICER PROCEEDED TO MAKE THE ASSESSMENT AS UNDER: - INCOME AS SHOWN ` 97,488 ADD: UNEXPLAINED CAPITAL INTRODUCED ` 07,11,569 UNEXPLAINED UNSECURED LOANS ` 17,00,000 TOTAL TAXABLE INCOME ` 25,97,000 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ADDITION. 5. AGAINST THIS ORDER, THE ASSESSEE IS IN APPEAL B EFORE US. ITA NO. 2957/DEL/2011 4 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. ASSESSEE COUNSEL CLAIMED THAT DUE TO ILLNESS OF THE WIFE OF THE ASSESSEE, THE MATTER REMAINED UNREPRESENTED BEFORE T HE ASSESSING OFFICER, WHICH ULTIMATELY LED TO ADDITION. THE ASSE SSEES COUNSEL SUBMITTED THE FOLLOWING PRAYER:- IN CONNECTION TO THE ABOVE NOTED MATTER IT IS TO B E SUBMITTED THAT THE ASSESSEE WAS UNDER GREAT MENTAL S TRESS, DUE TO THE CONTINUOUS ILLNESS OF THE WIFE DURING TH E COURSE OF PROCEEDING WHO HAD AS MANY AS SIXTEEN OPERATIONS BETWEEN 2007 AND MARCH 2011. THE ILLITERATE ASSESSEE HAS NO EXPERIENCE OF BUSINESS AND HE WAS FULLY DEPENDEN T ON HIS COUNSEL MR.AJAY. ULTIMATELY HIS WIFE SMT. SUDHA TYAGI EXPIRED ON 20.04 .2011, COPY OF DEATH CERTIFICATE CAN BE PRODUCE IF REQUIRE D. IN THE ABOVE CIRCUMSTANCES IT IS PRAYED THAT THE MAT TER MAY KINDLY BE RESTORE BACK TO THE AO, SO THAT THE ASSES SEE CAN PUT FORWARD HIS CASE. AS PER INSTRUCTION ASSESSEE U NDERTAKE TO CORPORATE FULLY IN THE ASSESSMENT PROCEEDING BEF ORE AO IF THE MATTER IS SET ASIDE BY YOUR HONOR AND FOR THIS A CT OF KINDNESS & JUSTICES APPELLANT SHALL EVER PRAYED. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. IN OUR CONSIDERED OPINION, INTEREST OF JUSTICE WILL BE SERVED, IF THE MATTER REMITTED TO THE FILE OF THE ASSESSING OFFICER. ACC ORDINGLY, THE MATTER STANDS REMITTED TO THE FILE OF THE ASSESSING OFFICER . THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE ASSESSING OFFICER I N COMPLETING THE ASSESSMENT. ITA NO. 2957/DEL/2011 5 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/8/2011 UPO N CONCLUSION OF HEARING. SD/- SD/- [ [[ [C.L. SETHI C.L. SETHI C.L. SETHI C.L. SETHI] ]] ] [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 10/8/2011 SRB COPY COPY COPY COPY FORWARDED TO: FORWARDED TO: FORWARDED TO: FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES