Sh. Surender Singh Gera, New Delhi V. ITO, New Delhi

ITA 3007/DEL/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4710 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 14-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business expenditure; TDS
• Section: 143(3); 143(1)

Judgement Text

1 ITA NO. 3007/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI G. D. AGRAWAL, VICE PRESID ENT AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A. NO. 3007/DEL/2 015 (A.Y 2011-12) SURENDER SINGH GERA 306, RAKESH DEEP COMMERCIAL COMPLEX, GULMOHAR ENCLAVE NEW DELHI ACKPG2463K (APPELLANT) VS ITO WARD 54(5), ROOM NO. 1603, E-2 BLOCK, CIVIC CENTRE NEW DELHI (RESPONDENT) APPELLANT BY SH. SOMIL AGARWAL AND DEEPAK GARG, ADV RESPONDENT BY SH. N. K. BANSAL, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 31/03/2015 PASSED BY CIT(A)-XVIII, NEW DELHI FOR ASSESSMENT Y EAR 2011-12. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASS ESSMENT MADE BY THE AO IS BAD IN LAW THUS SHOULD BE HELD AS NULLITY. 2. ON THE FACTS AND CIRCUMSTANCES OF TIRE CASE, THE A O HAS ERRED IN ADDITION OF CASH DEPOSIT AMOUNTING RS. 55,53,623/-, WHEREAS ALL THE SUPPORTING DOCUMENTS IN RESPECT OF EACH CASH RECEIPTS WERE GIV EN AND WERE PLACED ON FILE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO HAS ERRED IN ADDITION DATE OF HEARING 03.04.2019 DATE OF PRONOUNCEMENT 30.05.2019 2 ITA NO. 3007/DEL/2015 OF RS. 2,16,150/- ON ACCOUNT OF EXPENSES INCURRED B Y THE ASSESSEE TOWARDS HIS BUSINESS, IN SPITE OF THE FACT THAT ALL THE DET AILS OF THE EXPENSES WERE FURNISHED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO HAS ERRED IN INITIATION PENALTY PROCEEDINGS U/S 271(L)(C) OF THE INCOME TAX ACT,1961 ON THE ADDITION OF RS. 55,63,623/- AND RS. 2,16,150/- FOR CONCEALIN G THE INCOME BY FURNISHING INACCURATE PARTICULARS OF INCOME. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO HAS ERRED IN CHARGING INTEREST U/S 234B. 3. THE ASSESSEE IS CARRYING ACTIVITIES AS REAL ESTA TE AGENT AND EARNED COMMISSION AMOUNTING TO RS. 9,42,000/- FROM VARIOUS SMALL PARTIES AND NO TDS WAS DEDUCTED BY THEM. DURING THE YEAR, THE WI FE OF THE ASSESSEE HAD GIVEN CASH FOR THE INVESTIGATION IN PROPERTY. THE ASSESSEE DEPOSITED CASH AMOUNTING TO RS.51,41,000/- IN HIS SAVING BANK ACCO UNT WITH ANDHRA BANK AND A SUM OF RS.4,22,623/- DEPOSITED IN CASH. THE RETURN OF INCOME WAS FILED ON 1/6/2011 DECLARING TOTAL INCOME OF RS. 5,21,130/ - WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 ON 28/10/201 1. THE CASE WAS SELECTED FOR SCRUTINY U/S 143(3) OF THE ACT. ACCORDINGLY, S TATUTORY NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 WAS ISSUED AND SERVED ON T HE ASSESSEE ON 12/09/2012. IN RESPONSE TO THE NOTICE ISSUED, CA/A R OF THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS FROM TIME TO TIME AND FI LED REQUISITE DETAILS WHICH WERE TAKEN ON RECORD BY THE ASSESSING OFFICER. THE ASSESSING OFFICER MADE AN ADDITION IN RESPECT OF CASH DEPOSITS AMOUNTING TO R S. 55,63,623/- AND ALSO MADE ADDITION RELATING TO BUSINESS EXPENSES AMOUNTI NG TO RS.2,60,150/-. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE EVIDENCE PRODUCED BEFORE THE ASSESSING 3 ITA NO. 3007/DEL/2015 OFFICER AS WELL AS PLACED BEFORE THE CIT(A) RELATIN G TO CONFIRMATION OF MRS. MADHU GERA ALONG WITH HER PAN AS WELL AS AGREEMENT TO SALE BY MRS. MADHU GERA SHOWING RECEIPT OF ADDITION CASH BY HER WAS N OT AT ALL CONSIDERED BY THE ASSESSING OFFICER AS WELL AS BY THE CIT(A). THERE FORE, THE LD. AR REQUESTED THAT THIS MATTER MAY BE REMANDED BACK TO THE FILE O F THE ASSESSING OFFICER FOR TAKING COGNIZANCE OF THE EVIDENCE PRODUCED BEFORE T HE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. 6. THE LD. DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE RECORDS IT CAN BE SEEN THAT THE ASSESSING OFFICER AS WELL AS CIT(A) HAS NOT CONSIDERED THE EV IDENCES GIVEN BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, IT W ILL BE APPROPRIATE TO REMAND BACK THIS MATTER TO THE FILE OF THE ASSESSING OFFIC ER FOR TAKING COGNIZANCE OF THE EVIDENCES PRODUCED BY THE ASSESSEE AND AFTER VERIFY ING THE SAME AND AS PER THE LEGAL ASPECT BESIDES THE CASE AFRESH. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF N ATURAL JUSTICE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 TH MAY, 2019 . SD/- SD/- (G. D. AGRAWAL) (SUCHITRA KAMBLE) VICE PRESIDENT JUDICIAL MEMBER DATED: 30/05/2019 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 4 ITA NO. 3007/DEL/2015 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 03.04.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04.04.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS .0 5 .2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT .2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK