Mani Marwaha, Delhi V. ITO, Ward- 63(3), Delhi

ITA 3184/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0718 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M BARANWAL
• Assessee Lawyers: SUSHEEL GUPTA
• Keywords: Additional evidence; Set aside
• Section: 143(3); 133(6); 147; 148

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2 : NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER A N D SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3184/DEL/2019 (ASSESSMENT YEAR: 2010-11) SHRI MANI MARWAHA , 16/19, 1 ST FLOOR, OLD RAJINDER NAGAR, NEW DELHI 110 060. PAN : ANEPM4684R VS. ITO , WARD 63 (3), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUSHEEL GUPTA, C.A.; DEPARTMENT BY : SHRI M. BARANWAL, SR. D. R.; DATE OF HEARING 11/06/2020 DATE OF PRONOUNCEMENT 15/06/2020 O R D E R PER PRASHANT MAHARISHI, A. M. : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-38, NEW DELHI, FOR ASSESSMENT YEAR 2010-11 DATED 18 TH FEBRUARY, 2019 WHEREIN THE APPEAL OF THE ASSESSEE IS DISMISSED. THE ASSESSEE APPROACHED BEFORE THE LD. CIT (APPEALS) AGAINST THE ADDITION OF RS.8,61,742/- MADE BY THE INCOME TAX OFFICER, WARD 63 (3), NEW DELHI, AS PER ORDER DATED 30 TH DECEMBER, 2017 UNDER SECTION 147 READ WITH SECTION 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT). 2. GRIEVANCE BEFORE US OF THE ASSESSEE IS AGAINST RE-OPENING OF THE ASSESSMENT ORDER, IMPROPER SANCTION AND ADDITION ON THE MERITS OF THE CASE. 3. THE BRIEF FACTS OF THE CASE SHOWS THAT ASSESSEE IS AN INDIVIDUAL. THE INCOME TAX DEPARTMENT RECEIVED INFORMATION OF THE ASSESSEE THAT HE HAS MADE INVESTMENT IN SHARES AND SECURITIES TO THE TUNE OF RS.23,01,652/-. ON VERIFICATION PAGE | 2 ASSESSING OFFICER FOUND THAT ASSESSEE HAS NOT FILED RETURN OF INCOME, HENCE HE COULD NOT VERIFY THE SOURCE OF SUCH INVESTMENT. THEREFORE, AFTER TAKING THE APPROVAL OF PR. COMMISSIONER OF INCOME TAX ON 29.03.2017 NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 31.03.2017. THE LD. AO ISSUED SEVEN NOTICES AND NONE OF THEM WERE RESPONDED BY THE ASSESSEE. THEREFORE, HE ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT TO THE NATIONAL STOCK EXCHANGE. IT WAS FOUND THAT ASSESSEE PURCHASED SHARES OF RS.56,19,019/- AND SOLD SHARES OF RS.63,80,760/-. THUS CAPITAL GAIN OF RS.7,61,742/- WAS EARNED. ASSESSING OFFICER FURTHER ISSUED NOTICE GIVING FINAL OPPORTUNITY TO THE ASSESSEE WHICH WAS ALSO NOT RESPONDED. THEREFORE, HE MADE AN ADDITION OF RS.7,61,742/- BEING THE SHORT TERM CAPITAL GAIN ON SALE OF SHARES AND FURTHER RS.1,00,000/- ON ACCOUNT OF CAPITAL INVESTMENT. THE ASSESSMENT ORDER WAS PASSED ON TOTAL INCOME OF RS.10,21,742/- INCLUDING THE ADDITION OF FIRST EXEMPTION LEVEL INCOME. 4. ASSESSEE CHALLENGED THE SAME BEFORE THE LD. CIT (APPEALS) WHEREIN ASSESSEE FILED ADDITIONAL EVIDENCES AND REQUESTED FOR ITS ADMISSION. THE LD. CIT (APPEALS) ASKED FOR THE REMAND REPORT AND BASED ON THIS, HE REFUSED TO ADMIT THE ADDITIONAL EVIDENCES. HE ALSO DISMISSED THE APPEAL OF THE ASSESSEE ON THE ISSUE OF RE-OPENING OF THE ASSESSMENT. ON MERITS, HE UPHELD THE ORDER OF THE ASSESSING OFFICER. 5. THUS ASSESSEE IS AGGRIEVED AND PREFERRED THIS APPEAL. 6. THE LEARNED AUTHORIZED REPRESENTATIVE AND THE LEARNED DEPARTMENTAL REPRESENTATIVE WERE HEARD ON THIS MATTER EXTENSIVELY. 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE FACTS SHOWS THAT CASE OF THE ASSESSEE WAS RE-OPENED FOR NON- DISCLOSURE OF PROFIT ON TRANSACTIONS AT NATIONAL STOCK EXCHANGE PLATFORM CARRIED OUT BY THE ASSESSEE. FOUR NOTICES WERE ISSUED BY THE ASSESSING OFFICER BEFORE 31 ST OCTOBER, 2017. ASSESSEE DID NOT REPLY. TWO FURTHER NOTICES WERE ISSUED AFTER THAT. HOWEVER, AN IMPORTANT FACT THAT WAS PLACED BEFORE THE LD. CIT (APPEALS) WAS THAT THERE WAS A FIRE ON 9.11.2017 AT THE PRINCIPAL PLACE OF BUSINESS OF THE ASSESSEE I.E. KOHINOOR TRADERS AT KAROL BAGH, NEW DELHI. THE COPY OF THE COMPLAINT AND PHOTOGRAPHS WERE PLACED BEFORE THE CIT (APPEALS) PLEADING THE REASONS FOR NON- APPEARANCE. THIS WAS REJECTED BY THE CIT (APPEALS). WE FIND THAT NATURALLY IF THERE IS A FIRE THEN SUBSEQUENT NON-COMPLIANCE WITHIN A SHORT SPAN OF ONE MONTH PAGE | 3 MAY BE DUE TO SUFFICIENT CAUSE. HOWEVER, NON-COMPLIANCE PRIOR TO THAT CANNOT BE ACCEPTED IN THE CIVILIZED SOCIETY. FURTHER THE LD. CIT (APPEALS) HAS ALSO NOT DEALT WITH THE ISSUE ON THE MERITS OF THE CASE, BUT HAS MERELY BRUSHED ASIDE THE ARGUMENTS OF THE ASSESSEE AND UPHELD THE ORDER OF THE ASSESSING OFFICER. IN FACT IN THE ABOVE CIRCUMSTANCES IT IS APPARENT THAT ASSESSEE COULD NOT GET PROPER OPPORTUNITY OF EXPLAINING TRANSACTIONS BEFORE THE LOWER AUTHORITIES. WE HAVE GIVEN AN OFFER TO THE LEARNED AUTHORIZED REPRESENTATIVE TO EXPLAIN THE TRANSACTION BEFORE THE LOWER AUTHORITIES BY PLACING THE ACCOUNTS OF THE BROKER, THE BANK STATEMENT ETC. WITH WHICH HE READILY AGREED. THE PURPOSE OF MAKING THE ASSESSMENT WOULD BE MET IF COMPLETE DETAILS ARE FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. HOWEVER, AS ASSESSEE HAS NOT CO-OPERATED BEFORE THE LOWER AUTHORITIES, PRECISELY THE ASSESSING OFFICER, WE DIRECT THE ASSESSEE TO DEPOSIT AS A CONTRIBUTION RS.5,000/- TO THE PRIME MINISTERS NATIONAL RELIEF FUND AS THE PUBLIC MONEY IS INVOLVED IN THE EFFORTS OF AO AND SAME IS WASTED BY NON-COMPLIANCE OF THE ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE ALSO AGREED TO THAT. THERE WAS NO OBJECTION FROM THE LEARNED DEPARTMENTAL REPRESENTATIVE, IF THE ISSUE IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. IN VIEW OF THIS, WE DIRECT THE ASSESSEE TO MAKE THE CONTRIBUTION AS DIRECTED ABOVE ON OR BEFORE 30 TH JUNE, 2020 AND ON OR AFTER 16 TH AUGUST, 2020 APPEAR BEFORE AO WITH RELEVANT INFORMATION. ASSESSEE IS FREE TO RAISE ALL THE ISSUES INCLUDING THE ISSUE OF RE-OPENING OF ASSESSMENT AND ADDITIONS ON THE MERIT BEFORE THE AO. THE LD. ASSESSING OFFICER MAY CONSIDER THE SAME AND DECIDE THE ISSUE AFRESH AFTER DEALING WITH THE OBJECTIONS OF THE ASSESSEE AGAINST RE-OPENING OF THE ASSESSMENT. IN VIEW OF THIS THE APPEAL OF THE ASSESSEE WITH ALL ITS GROUNDS IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED, FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON : 15/06//2020 . \ SD/- SD/- (SUDHANSHU SRIVASTAVA) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 15/06/2020 . *MEHTA* PAGE | 4 COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (APPEALS) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI DATE OF DICTATION 15.06.2020. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15.06.2020. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 15.06.2020. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS / PS 15.06.2020. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT. 15.06.2020. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS / PS 15.06.2020. DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 15.06.2020. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15.06.2020. 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