Shri Ram Niwas Bansal, New Delhi V. ITO, New Delhi

ITA 3119/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3734 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 06-06-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 22-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KISHORE
• Keywords: Additional evidence
• Section: 143(3); 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.D. RANJAN ITA NO. 3119/DEL/2010 ASSESSMENT YEAR: 2007-08 SHRI RAM NIWAS BANSAL, VS. INCOME-TAX OFFICER, 234 CA APARTMENTS, A-3, BLOCK, WARD 38(2), PASCHIM VIHAR, NEW DELHI. NEW DELHI. (PAN: AHEPB0374P) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI GOVIND KUMAR , CA RESPONDENT BY: SHRI B. KISHORE, S R.DR ORDER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT(APPEALS) DATED 29.03.2010 PASSED FOR ASSESSMENT YEAR 2007-08. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.14,40,000 AND RS.9,55 ,911. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER HAD RECEIVED AN INFORMATION FROM AIR WING THAT ASSESSEE HAD CERT AIN TRANSACTIONS IN THE BANK. HE HAD ISSUED NOTICE UNDER SEC. 143(2) OF THE INCOME-TAX ACT, 1961. THE ASSESSEE DID NOT APPEAR BEFORE HIM. HE HAD ISSU ED NOTICES UNDER SECTION 271(1)(B) OF THE ACT, FOR INVITING ASSESSEES EXPLA NATION AS TO WHY PENALTY BE NOT IMPOSED UPON HIM FOR NOT ATTENDING THE PROCEEDI NGS BEFORE THE 2 ASSESSING OFFICER. IT EMERGES OUT THAT ULTIMATELY T HE TAX-CONSULTANT OF THE ASSESSEE SHRI SC JINDAL APPEARED BEFORE THE ASSESSI NG OFFICER. ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN AS TO WHY RET URN OF INCOME HAS NOT BEEN FILED AND ALSO EXPLAIN THE CASH DEPOSITS IN TH E S/B ACCOUNT WITH AXIS BANK. THE ASSESSEE SUBMITTED THAT HE WAS CARRYING C IVIL CONSTRUCTION WORK WHICH WAS DISCONTINUED BECAUSE OF HIS ILL-HEALTH. H E POINTED OUT THAT HIS KIDNEYS HAVE BEEN DAMAGED. THE CASH WAS DEPOSITED O UT OF THIS BUSINESS. ACCORDING TO THE ASSESSING OFFICER, ASSESSEE COULD NOT FILE ANY EXPLANATION EXHIBITING THE SOURCE OF CASH DEPOSITED IN THE BANK . HE MADE AN ADDITION OF RS.14,40,000 UNDER SECTION 69 OF THE ACT. ASSESSING OFFICER FURTHER FOUND A NUMBER OF TRANSACTIONS IN THE BANK ACCOUNT. THESE T RANSACTIONS WERE THROUGH ACCOUNT PAYEE CHEQUES. HE TABULATED ALL THOSE TRANS ACTIONS IN THE ASSESSMENT ORDER. ACCORDING TO THE ASSESSEE, HE HAS PURCHASED AND SOLD SHARES THROUGH BROKER, NAMELY, LIQUIDATED INVESTMENT & FINANCE SER VICES LTD. AND MADHU STOCK BROKING PVT. LTD. ASSESSING OFFICER HAS OBSER VED THAT ASSESSEE FAILED TO GIVE ANY SATISFACTORY EXPLANATION WITH REGARD TO CHEQUE DEPOSITED AND CHEQUE WITHDRAWN. HE HAS NOT FILED ANY RECONCILIATI ON STATEMENT. THE PEAK AMOUNT AVAILABLE IN THESE TRANSACTIONS DURING THE Y EAR AT RS.9,55,911 HAS BEEN ADDED. THE ASSESSMENT ORDER HAS BEEN PASSED UN DER SEC. 143(3) READ WITH SECTION 144 OF THE INCOME-TAX ACT, 1961. 3 3. APPEAL TO THE LEARNED CIT(APPEALS) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 4. WE FIND THAT LEARNED CIT(APPEALS) HAS REPRODUCED THE SHOW-CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER AND REPRODUC ED AT PAGE NOS. 2 TO 4 OF THE ASSESSMENT ORDER. THEREAFTER, LEARNED FIRST APP ELLATE AUTHORITY HAS RECORDED THE FOLLOWING FINDINGS:- 7. THE A.O. HAS POINTED OUT THAT THE APPELLANT FAI LED TO OFFER ANY EXPLANATION IN RESPONSE TO THE QUERIES RAISED. EVEN DURING APPELLATE PROCEEDINGS, THE APPELLANT HAS FAILED TO FILE ANY E VIDENCE REGARDING THE SOURCE FROM WHICH DEPOSITS HAVE BEEN MADE IN HIS BA NK ACCOUNT. IN VIEW OF THESE FACTS, THE APPELLANTS CLAIM THAT THE DEPOSITS WERE FROM PREVIOUS YEARS SAVING ETC. HAS REMAINED UNSUBSTANT IATED. THEREFORE, THE ADDITIONS MADE IN THE ASSESSMENT ORDER DO NOT C ALL FOR ANY INTERFERENCE. IN VIEW OF THE ABOVE, THE GROUNDS ARE DISMISSED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED A N APPLICATION FOR PERMISSION TO LEAD ADDITIONAL EVIDENCE. HE HAS PLAC ED ON RECORD COPY OF THE BANK STATEMENT AND A LEDGER EXHIBITING THE SHARE TR ANSACTIONS. HE POINTED OUT THAT BOTH THE KIDNEYS OF THE ASSESSEE WERE DAMAGED. HE WAS NOT KEEPING GOOD HEALTH AND, THEREFORE, COULD NOT PROSECUTE THE INCOME-TAX PROCEEDINGS PROPERLY. HIS TAX-CONSULTANT HAS NOT GUIDED HIM PRO PERLY. HE PRAYED THAT THESE DOCUMENTS BE TAKEN ON RECORD AND ISSUE BE REM ITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR REINVESTIGATION. LEARNED DR ON THE OTHER HAND SUBMITTED THAT SUFFICIENT OPPORTUNITIES WERE GRANTE D BY THE ASSESSING OFFICER 4 AS WELL AS BY THE LEARNED CIT(APPEALS). THE ASSESSE E FAILED TO SUBMIT ANY SUCH DETAILS BEFORE THE LEARNED REVENUE AUTHORITIES . ASSESSING OFFICER HAS ASKED THE ASSESSEE TO SUBMIT PAPERS RELATING TO HIS ILL-HEALTH BUT ASSESSEE DID NOT FILE ANY SUCH EVIDENCE. THUS, THERE IS NO EVIDE NCE ON THE RECORD WHICH CAN THROW ANY LIGHT ABOUT HIS ILL HEALTH. HE ALSO S UBMITTED THAT ASSESSEE HAS NOT FILED ANY AFFIDAVIT. HE HAS FILED AN APPLICATIO N WITH THE REGISTRAR AND TERMED IT AS AN AFFIDAVIT. 6. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. ASSESSING OFFICER HAS ASKED THE A SSESSEE TO SUBMIT REQUISITE DETAILS FOR EXPLAINING THE SOURCE OF DEPOSIT IN THE BANK AS WELL AS CHEQUE TRANSACTIONS EXHIBITING THE DEALING IN SHARES. THE ASSESSEE FAILED TO SUBMIT THOSE DETAILS. ONE OF HIS CONTENTIONS IS THAT HIS K IDNEYS WERE DAMAGED AND HE WAS NOT KEEPING HIS GOOD HEALTH. THIS CONTENTION WAS RAISED EVEN BEFORE THE ASSESSING OFFICER. FROM THE RECORD, IT REVEALS THAT ASSESSEE WAS A NEGLIGENT IN DEALING WITH HIS INCOME-TAX PROCEEDING S BUT WE FIND THIS NEGLIGENCE AT THE END OF ASSESSEE AS WELL AS HIS TA X-CONSULTANT BEFORE THE ITO LEADS TO A TAX LIABILITY ON AN INCOME OF RS.23,95,9 11. KEEPING IN VIEW THE STATEMENT MADE BY THE LEARNED COUNSEL FOR THE ASSES SEE AT THE BAR THAT HE WAS NOT KEEPING GOOD HEALTH, WE ARE OF THE VIEW THAT TH E PUNISHMENT IN THE SHAPE OF TAX-LIABILITY IS DISPROPORTIONATE TO THE NEGLIGE NCE COMMITTED BY THE 5 ASSESSEE. HE HAS FILED AN APPLICATION FOR LEADING A DDITIONAL EVIDENCE AND PLACED ON RECORD LEDGER ACCOUNT. CONSIDERING THESE DOCUMENTS, WE DEEM IT APPROPRIATE THAT ENDS OF JUSTICE WOULD MEET IF WE G RANT HIM ONE MORE OPPORTUNITY TO EXPLAIN HIS CASE BEFORE THE ASSESSIN G OFFICER. ON ACCOUNT OF HIS NEGLIGENT CONDUCT, WE IMPOSE A COST OF RS.10,00 0 UPON THE ASSESSEE. THE ASSESSEE SHALL DEPOSIT A SUM OF RS.10,000 IN THE GO VERNMENT TREASURY WITHIN THREE MONTHS FROM THE RECEIPT OF THIS ORDER AND FUR NISH THE EVIDENCE OF PAYMENT TO THE ASSESSING OFFICER. IF HE FAILS TO MA KE SUCH PAYMENT THEN HIS APPEAL WOULD BE DEEMED TO BE DISMISSED. IT IS NEEDL ESS TO SAY THAT THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR INJURE T HE CASE OF A.O. OR WOULD NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE. THE ASSESSEE WILL BE AT LIBERTY TO FURNISH ANY EVIDENCE IN SUPPORT OF HIS EXPLANATION. ASSESSING OFFICER SHALL GRANT DUE OPPO RTUNITY OF HEARING TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 10.06.2011 SD/- SD/- ( K.D. RANJAN ) ( R AJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10/06/2011 6 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR