Dinesh Chauhan, New Delhi V. ITO, New Delhi

ITA 3181/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3905 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 19-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Principle of natural justice; Additional evidence; Set aside
• Section: 44AD; 80C; 13

Judgement Text

1 ITA NO. 3181/DEL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2) + SM C-1 NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 3181/DEL/2017 ( A.Y 2014-15) DINESH CHAUHAN Z-71, DAYAL SAR ROAD, UTTAM NAGAR NEW DELHI AADPC9966E (APPELLANT) VS ITO WARD-26(3) NEW DELHI (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. PRADEEP SINGH GAUTAM, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 18/03/2015 PASSED BY CIT(A)- 15, DELHI FOR ASSESSMENT YEAR 20 14-15. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. ASSESSING AUTHORITY ORDER NARRATE FIRST PAGE AND ONE PARA FOR NON APPEARANCE AND APPEARANCE OF COUNSEL BUT NOT SUBMIS SION OF ANY DOCUMENTS AND REQUIRING FROM AO NOTE SHEET COPY AND ADJOURNME NT OF THE CASE. THE AIR INFORMATION WAS FURNISHED TO THE ASSESSEE . ONE COU NSEL KRISHAN KANT ROY UP FILED PROFIT AND LOSS ACCOUNT AND BALANCE SHEET WHICH WAS NEVER REQUIRED BY THE ASSESSING AUTHORITY. SH. RAMESH KUMAR GARG , CA ONLY SOUGHT ADJOURNMENTS AND THEN SH. K.K.ROY AGAIN APPEARED AN D ASKED THE ASSESSING DATE OF HEARING 04.03.2020 DATE OF PRONOUNCEMENT 13 .03.2020 2 ITA NO. 3181/DEL/2017 AUTHORITY THE FILE DETAILS AND FINALLY PROPRIETOR A PPEARED ON 20.12.2010 AND CASE WAS ADJOURNED TO 22.12.2010, BUT WAS GIVEN NO SUFFICIENT TIME TO FILE THE REQUIRED INFORMATION. THAT THE COUNSEL (S) OF THE A SSESSEE FILED AND SUBMITTED SUCH DOCUMENTS WHICH WERE NOT ASKED BY THE ASSESSIN G AUTHORITY AS THE RETURN WAS FILED U/S 44 AD WHICH REQUIRE NO PROFIT AND LOSS ACCOUNT AND BALANCE SHEET. THE REST OF THE ORDERS MENTION THE N ARRATION OF THE SAID SO SUBMITTED ACCOUNTS WHICH WERE NEVER MAINTAINED. THE COUNSEL OF THE ASSESSEE BY PUTTING '2' BEFORE THE GTO MADE THE GTO OF THE ASSESSEE AS RS.28,36,200/- FOR THE COMPLICATION TO THE ASSESSEE . 2. ASSESSING AUTHORITY DUE TO THE SOME GOOD REASON NEVER RELIED ON THE SAID SUBMISSIONS BUT FINALLY MADE THE ADDITIONS TO THE R EPORT OF AIR INFORMATION BUT NEVER ASKED FOR THE EXPLANATION TO THE SAVING A CCOUNT DEBIT AND CREDIT ENTRIES. THE DEBIT CREDIT ENTRIES ARE ENCLOSED WITH EXPLANATIONS AS ANNEXTURE. FURTHER IT IS SUBMITTED THAT DEUTSCHE BA NK AND CITI BANK ARE LOAN ACCOUNTS HAVING A/C NO.200000719520019 AND CAR D NO.5425569450185012 RESPECTIVELY AND AS SUCH NO INV ESTMENT(S). 3. THAT THE AO ASSESSMENT ORDER HAS NOT MENTIONED T HE SAID FACT THAT THE SAID SAVING BANK ACCOUNT NO.115810002323 WITH DENA BANK IS A JOINT ACCOUNT AND HAS IN ITS ASSESSMENT ONLY TRIED TO FOC US ON CASH DEPOSITS BUT BY WHOM (ASSESSEE AND CO-ASSESSEE) AND WHAT ARE OTHER CHEQUE DEPOSITS RECEIPTS AND NEVER TRIED TO ASK THE ASSESSEE THE DO CUMENTARY EVIDENCE THEREOF. HIS BEST JUDGMENT WAS ONLY TO MAKE THE ADD ITIONS OF CASH DEPOSITS ONLY AND TO MAKE ADDITIONS OF LOAN ACCOUNT(S) .PLEA SE FIND ENCLOSED THE NARRATION OF THE JOINT SAVING BANK ACCOUNT MENTIONE D ABOVE IN THE ANNEXURE WHICH CLEAR THE PICTURE. 4. FURTHER THE ORDERS OF THE COMMISSIONER OF INCOM E TAX (APPEAL)XV ALSO CONFIRM THE ADDITIONS WITHOUT GIVING JUSTIFIED REAS ONS. AGGRIEVED ASSESSEE OUGHT TO GET JUSTIFICATION FOR THE ADDITIONS, BUT T O CALL IT FIRST THOUGHT AND 3 ITA NO. 3181/DEL/2017 AFTERTHOUGHT. THE CASE OF THE ASSESSEE AT THE APPEA L STAGE HAS BEEN HEARD BY THREE COMMISSIONER(S) .THE FINAL COMMISSIONER HAS N OT PUT THE SUBMISSIONS TO HIS PREDECESSOR(S) AND NEVER MENTIONED THE SUBMISSI ON(S) OF JOINT SAVING BANK ACCOUNT IN HIS ORDERS WHICH IS THE BASIC OF DI SPUTE FOR ADDITIONS. 5. DEPOSITS OF MORE THAN RS. 10.00 LACS REQUIRE EX PLANATION BUT NOT STRAIGHT FORWARD ADDITIONS TO THE INCOME .THE EXPLANATION TO SAVING BANK ACCOUNT NO. 115810002323 WITH DENA BANK IS AS PER THE ANNEXURE WHICH CLEARLY SHOWS THE ACCOUNT IS MAINTAINED BY BOTH THE ASSESSE E HUSBAND AND WIFE SH.DINESH CHAUHAN (PAN NO. AADPC 9966E) AND KAVITA CHAUHAN (PAN NO. AFBPC 8089D) ANDADDITIONS OF CASH DEPOSITS ARE BUSI NESS ENTRIES (DEPOSIT OF SALE PROCEEDS OF RS.8,36,200) ON VARIOUS DATES A ND INTRODUCTION OF CAPITAL OF RS.5.00 LACS ON 1.9.2007 BY KAVITA CHAUHAN (PAN NO. AFBPC8089D). PRAYER: KEEPING THE ABOVE SUBMISSION IN VIEW THE AD DITIONS TO THE INCOME MADE BY THE ASSESSING AUTHORITY AND CONF IRED BY THE APPELLATE COMMISSIONER MAY BE SET ASIDE AND SUC H OPPORTUNITY AS YOUR GOODSELF DEEM PROPER MAY BE GIV EN TO THE ASSESSEE TO PRESENT ITS CASE. IT IS PRAYED ACCORDINGLY. 3. THE ASSESSEE FILED ITS RETURN RELATING TO ASSES SMENT YEAR 2008-09 ON 22/12/2010 WHICH WAS FILED U/S 44AD OF THE INCOME T AX ACT, 1961. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE CARRIED ON A SHOP IN THE NAME OF M/S MY MOTHER OPTICS AND OPERATED HIS BUSINESS JOIN T ACCOUNT WITH WIFE SMT. KAVITA CHAUHAN. DURING THE YEAR UNDER CONSIDERATIO N, THE WIFE OF THE ASSESSEE DEPOSITED SALE CONSIDERATION OF RS.18,50,000/- IN T HE JOINT ACCOUNT. THE ASSESSEE DEPOSITED APPROXIMATELY RS. 8,36,200/- SAL E PROCEEDS ON VARIOUS DATES I.E. ON 1/4/2007 TO 31/3/2008. THE ASSESSING OFFICER MADE ADDITION OF RS. 12,67,500/- AS UNEXPLAINED CASH CREDIT RS. 2,74 ,154/- AS UNEXPLAINED 4 ITA NO. 3181/DEL/2017 INVESTMENTS AND RS. 25,764/- IN RESPECT OF DISALLOW ANCE U/S 80C OF THE INCOME TAX ACT, 1961. 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. NONE APPEARED ON BEHALF OF THE ASSESSEE AND THER E IS NO ADJOURNMENT APPLICATION ON BEHALF OF THE ASSESSEE. THE NOTICE HAS BEEN SERVED TO THE ASSESSEE. THEREFORE, WE ARE TAKING THE SUBMISSIONS OF THE ASSESSEE BEFORE THE CIT(A) AS WELL AS BEFORE THE ASSESSING OFFICER. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. THE CIT(A) REJECTED THE ADDITIONAL EVIDENCE PRODUCE D BEFORE THE CIT(A) WITHOUT ASSIGNING ANY COGENT REASON. THUS IT WILL BE APPRO PRIATE TO ADMIT THE ADDITIONAL EVIDENCE IN THIS MATTER. THEREFORE, WE A RE REMANDING BACK THE MATTER TO THE FILE OF THE CIT(A) FOR ADJUDICATING T HE APPEAL ON MERITS. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF GIVING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEAL OF THE ASSESSEE IS PART LY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MARCH, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13/03/2020 R. NAHEED 5 ITA NO. 3181/DEL/2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 05.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06.03.2020 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 1 3 .03.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 3 .03.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 3 .03.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER