ITO, New Delhi V. Sh. Param Pavitra Singh Pahawa, New Delhi

ITA 3170/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4261 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 04-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 25-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F DELHI) BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO. 3170(DEL)2010 ASSESSMENT YEAR: 2007-08 INCOME TAX OFFICER, SH.PARAM PA VITRA SINGH PAHWA, WARD 36(2), NEW DELHI. V. E-98, PREET VIHA R, DELHI-92. (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. ANUSHA KHURANA, SR. DR RESPONDENT BY: NONE ORDER PER A.D. JAIN, J.M . THIS IS DEPARTMENTS APPEAL FOR THE ASSESSMENT YEAR 2007-08, TAKING THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF ` 36,98,500/- MADE BY THE AO U/S 68 OF THE I.T. ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ACCEPTING THE SUBMISSION AND FRESH EVIDENC E OF THE ASSESSEE FILED BEFORE HIM AND NOT PROVIDING OPPORTUNITY TO T HE AO. THUS THERE IS A VIOLATION OF RULE 46A (10) OF THE I.T. ACT. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE, THO UGH THE NOTICE ISSUED TO THE ASSESSEE BY REGISTERED POST ON 11.2.2011, H AS NOT RETURNED UNSERVED. HOWEVER, FINDING THAT THE MATTER CAN BE PROCEEDED W ITH IN THE ABSENCE OF THE ASSESSEE, WE ARE DOING SO. ITA 3170(DEL)2010 2 3. VIDE ASSESSMENT ORDER DATED 20.11.09, PASSED U/S 144 OF THE I.T. ACT, THE AO, INTER ALIA, MADE ADDITION OF ` 36,98,500/- DEPOSITED IN THE ASSESSEES BANK ACCOUNT, TREATING THE SAME TO BE UNEXPLAINED C ASH CREDIT U/S 68 OF THE I.T. ACT, IN THE ABSENCE OF EVIDENCE. 4. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THIS ADDITION, ON THE BASIS OF DETAILS FURNISHED BY THE ASSESSEE I NCLUDING BANK STATEMENT. 5. THE LD. DR HAS CONTENDED THAT THE LD. CIT(A) ER RONEOUSLY DELETED THE ADDITION ON THE BASIS OF EVIDENCE WHICH WAS FILED F OR THE FIRST TIME ONLY BEFORE THE LD. CIT(A) AND THAT THE LD. CIT(A) DELET ED THE ADDITION AT THE BACK OF THE AO, IN VIOLATION OF RULE 46A OF THE I.T. ACT . 6. THE GRIEVANCE OF THE DEPARTMENT IS FOUND TO BE C ORRECT. THE ASSESSMENT WAS COMPLETED BY THE ASSESSEE U/S 144 OF THE ACT. THE ADDITION WAS MADE SINCE NO EVIDENCE HAD BEEN PRODUCED. IN T HE STATEMENT OF FACTS FILED BEFORE THE LD. CIT(A), (COPY ON RECORD), THE ASSESSEE HAD CONTENDED THAT THE APPELLANT COULD NOT PRODUCE ANY INFORMATI ON/RELEVANT DOCUMENTS BEFORE THE AO DUE TO UNAVOIDABLE CIRCUMSTANCES. THE LD. CIT(A) DELETED THE ADDITION ON THE BASIS OF EVIDENCE IN THE SHAPE OF DETAILS AND BANK STATEMENT, WHICH WERE FILED FOR THE FIRST TIME ONLY BEFORE THE LD. CIT(A). THE ORDER UNDER APPEAL NOWHERE MENTIONS THAT THIS EVIDENCE WAS EVER PUT TO THE AO FOR REBUTTAL. THE ORDER PASSED BY THE LD. CIT(A), THEREFORE, ITA 3170(DEL)2010 3 EVIDENTLY, IS AN ORDER PASSED BY CONSIDERING EVIDEN CE AT THE BACK OF THE AO. THIS, OBVIOUSLY, IS IN VIOLATION OF THE SETTLED NAT URAL JUSTICE PRINCIPLE OF AUDI ALTEREM PARTEM. 7. IN VIEW OF THE ABOVE, GROUND NO.2 TAKEN BY THE D EPARTMENT IS ACCEPTED AND THE MATTER IS REMITTED TO THE FILE OF THE CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, BY PUTTING THE EVIDE NCE FILED BY THE ASSESSEE, AS ABOVE, TO THE AO FOR REBUTTAL. THE ASSESSEE SH ALL ALSO BE AFFORDED ADEQUATE OPPORTUNITY OF HEARING. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE DEPARTMENT IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.05.2011. SD/- SD/- (G.E. VEERABHADRAPPA) (A.D. JAIN) VICE PRESIDENT JUDICIAL MEMBER DATED: 04.05.2011 *RM COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR