Khem Singh, Faridabad V. ITO, Faridabad

ITA 2986/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7035 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 14-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 14-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B RAMAN JANYULU
• Assessee Lawyers: K C SINGHAL; JITENDDRA WADHWA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2986/DEL/2015 ASSESSMENT YEAR: 2009-10 SH. KHEM SINGH, VS. ITO, WARD-II(3) C/O BHATI WADHWA & CO., FARIDABAD 5N/1A, FIRST FLOOR NEAR, MCF MAYOR OFFICE NIT, FARIDABAD HARYANA - 121001 (PAN: BCZPS0778R) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. K.C. SINGHAL, ADV. & SH. JITENDDRA WADHWA, CA REVENUE BY : SH. B. RAMAN JANYULU, SR. DR DATE OF HEARING ON : 14/09/2016 ORDER PRONOUNCED ON : 04/10/20 16 PER H.S. SIDHU, JM ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 4.3.2015 PASSED BY THE LD. CIT(A), FARIDABAD RELATING TO ASS ESSMENT YEAR 2009- 10 ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION AT RS. 13,78,823/- IN AS MUCH AS PEAK HAS NOT BEEN PROPERLY COMPUTED SINCE CERTAIN FACTUAL DETAILS, RELEVANT FOR DETERMINING THE PEAK AMOUNT, HAVE BEEN IGNORED. 2 2. THE APPELLANT CRAVES TO ADD, OR AMEND THE GROUNDS OF APPEAL, IF REQUIRED AND NECESSARY. IT IS, THEREFORE, PRAYED THAT THE IMPUGNED DISALLOWANCE SUSTAINED BY THE CIT(A) BE DELETED OR SUCH OTHER SUITABLE RELIEF BE ALLOWED WHICH THE HONBLE BENCH MAY DEEM FIT. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE N OT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATE D HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE AS SESSEE HAS STATED THAT REVENUE AUTHORITIES WAS NOT JUSTIFIED IN SUSTA INING THE ADDITION AT RS. 13,78,823/- IN AS MUCH AS PEAK HAS NOT BEEN PROPERLY COMPUTED SINCE CERTAIN FACTUAL DETAILS, RELEVANT FO R DETERMINING THE PEAK AMOUNT, HAVE BEEN IGNORED. HE FURTHER STATED THAT LD. CIT{A) HAS MADE FACTUAL ERROR IN DETERMINING THE PEAK EITH ER BY TAKING INCORRECT AMOUNT OR BY NOT CONSIDERING ALL THE CASH WITHDRAWALS AS AGAINST ALL CASH DEPOSITS. IN THIS CONNECTION, HE D RAW OUR ATTENTION TOWARDS THE OPENING BALANCE OF RS.98,823/-AS ON 1.4 .2008 IN THE BANK ACCOUNT AT PAGE 19 OF PB WHICH COULD NOT HAVE BEEN CONSIDERED IN DETERMINING THE PEAK AMOUNT. THUS, THIS AMOUNT N EEDS TO BE REDUCED FROM THE PEAK DETERMINED BY THE CIT{A). FUR THER, IT WAS STATED THAT LD. CIT{A) MISTAKENLY HAD TAKEN THE WIT HDRAWAL AT RS.55,OOO/-AS AGAINST RS.3,55,OOO/- AS ON 22.9.2008 [PAGE20 OF PB AND PAGE 19 OF ORDER OF CIT{A), THUS, THIS AMOUN T OF RS. 3 LAKHS ALSO NEEDS TO BE REDUCED FROM THE PEAK DETERMINED B Y THE CIT(A). IT WAS THE FURTHER CONTENTION OF THE LD. COUNSEL OF TH E ASSESSEE THAT LD. CIT{A) MISTAKENLY HAD TAKEN THE WITHDRAWAL AT RS.3, OOO/-AS AGAINST RS.35,OOO/- ON 22.9.2008. [PAGE 20 OF PB AND PAGE 1 9 OF ORDER OF CIT(A), THUS, DIFFERENCE OF AMOUNT OF RS. 32,000/- ALSO NEEDS TO BE 3 REDUCED FROM THE PEAK DETERMINED BY THE CIT(A). HE FURTHER STATED THAT LD. CIT(A) HAD TAKEN INTO CONSIDERATION ALL TH E CASH DEPOSITS IN BANK YET HE FAILED TO TAKE INTO CONSIDERATION ALL T HE CASH WITHDRAWAL, MAY BE BY MISTAKE. THIS HAD RESULTED IN DETERMINING THE HIGHER PEAK BY RS.2,40,5OO/-. THIS AMOUNT ALSO NEEDS TO BE REDU CED FROM THE PEAK DETERMINED BY THE CIT{A). IN THE LAST, LD. CO UNSEL OF THE ASSESSEE STATED THAT LD. CIT(A) WAS ALSO NOT JUSTIF IED IN NOT GIVING THE BENEFIT OF AMOUNT OF RS. 3 LACS GIVEN BY HIS FATHER FROM HIS BANK ACCOUNT DESPITE SUCH AMOUNT IS SUPPORTED BY BANK PA SS BOOK OF ASSESSEES FATHER AND HIS AFFIDAVIT. THE ASSESSEE H AD ALSO OFFERED TO PRODUCE HIS FATHER FOR THE BENEFIT OF RS. 3 LACS. T HIS AMOUNT ALSO NEEDS TO BE REDUCED FROM THE PEAK DETERMINED BY THE LD. C IT(A). IN VIEW OF ABOVE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO TO CONSIDER THE SAME AFRESH, UNDER T HE LAW AFTER THOROUGH EXAMINATION OF EACH ISSUE AND PROVIDE THE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE OF BEING HEARD. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW AND OPPOSED THE REQUEST OF THE ASSESSEES COU NSEL. 5. I HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE ORDERS PASSED BY THE AUTHORITIES BELOW AS WELL AS CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE, I AM OF THE VIEW THAT THE CONTENTION RAISED BY THE ASSESSEE SEEMS TO BE GENUINE AND EACH OF HIS CONTENTION NEEDS TO BE THOROUGH EXAMINATION AT THE LEVEL OF THE AO. THEREFORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO FOR FRESH CONSIDERATION, AS PER LAW, AFTER THOROUGH EXAMINATION OF EACH CONTENTION RAISED BY THE ASSESS EES COUNSEL, AS AFORESAID, AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, THE ASSESSEE IS DIRECTED TO FULLY COOPERATE WITH THE AO DURING THE PROCEEDINGS BEFORE HIM AND NOT T O TAKE ANY 4 UNNECESSARY ADJOURNMENT IN THE CASE AND ALSO PRODUC E ALL THE NECESSARY EVIDENCES BEFORE THE AO TO SUBSTANTIATE H IS CLAIM. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04/10/2016 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 04/10/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES