ITO, Noida V. Smt. Sarita, New Delhi

ITA 3258/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4766 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANCHAL KHANDELWAL
• Assessee Lawyers: K P GARG
• Keywords: Opportunity of being heard; Additional evidence; Reassessment proceedings
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT ITA NO.3258/DEL/2017 ASSESSMENT YEAR : 2008-09 ITO, WARD-3(3), ROOM NO.511, A-2/D, AAYAKAR BHAWAN, SECTOR 24, NOIDA. VS. SARITA, D/O SHRI DHARAMBIR SINGH, C/O KRISHAN PRAKASH GARG, 203/88, NEHRU PLACE, NEW DELHI. PAN: BHAPS6574F CO NO.62/DEL/2017 (ITA NO.3258/DEL/2017) ASSESSMENT YEAR : 2008-09 SARITA, W/O SHRI VINOD KUMAR, G-260, SECTOR-B-II, GREATER NOIDA. PAN: BHAPS6574F VS. ITO, WARD-3(3), ROOM NO.511, A-2/D, AAYAKAR BHAWAN, SECTOR 24, NOIDA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.P. GARG, ADVOCATE DEPARTMENT BY : SHRI ANCHAL KHANDELWAL, SR. DR ITA NO.3258/DEL/2017 CO NO.162/DEL/2017 2 DATE OF HEARING : 12.09.2017 DATE OF PRONOUNCEMENT : 13.09.2017 ORDER THIS APPEAL FILED BY THE REVENUE AND THE CROSS OBJ ECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 24.02.2017 IN RELATION TO THE ASSESSMENT YEAR 2008- 09. 2. THE FIRST ISSUE RAISED BY THE REVENUE IS AGAINST THE ACCEPTANCE OF ADDITIONAL EVIDENCE BY THE LD. CIT(A) WITHOUT GIVIN G PROPER OPPORTUNITY TO THE ASSESSING OFFICER IN VIOLATION OF RULE 46A O F THE INCOME-TAX RULES, 1962. ON MERITS, THE DEPARTMENT IS AGGRIEVED AGAINST THE DELETION OF ADDITION OF RS.25 LAC BY ACCEPTING THE EXPLANATI ON THAT THIS AMOUNT WAS GIVEN BY THE ASSESSEES HUSBAND FROM HIS BANK A CCOUNT; AND ALSO THE DELETION OF ADDITION OF RS.10 LAC BY ACCEPTING THE ASSESSEES EXPLANATION THAT THIS MUCH AMOUNT WAS AVAILABLE IN CASH WITH HE R. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSING OFFICER GOT AIR INFORMATION ABOUT THE ASSESSEE PURCHASING A RESIDENTIAL HOUSE NO.G-260, SECTOR BETA-II, GREATER NOIDA ON 5.2.2008 FOR A SUM OF RS.35 LAC. A FURTHER SUM OF RS.3,64,700/- WAS SPENT ON P URCHASE OF STAMP ITA NO.3258/DEL/2017 CO NO.162/DEL/2017 3 PAPERS AND RS.5,030/- AS REGISTRATION FEE. THUS, T HE TOTAL INVESTMENT MADE IN THE PURCHASE OF HOUSE AMOUNTED TO RS.38,69, 730/-. IT WAS FOUND ON PERUSAL OF THE PURCHASE DEED THAT THE FOLL OWING PAYMENTS WERE MADE TO THE SELLER :- CHEQUE NO.490420 DATED 21.08.2007 OF OBC RS.10,00 ,000/- CHEQUE NO.490422 DATED 01.11.2007 OF OBC RS.10,00, 000/- CHEQUE NO.490423 DATED 08.12.2007 OF OBC RS. 5,00 ,000/- CASH RS.10,00,000/- ___________ RS.35,00,000/- ___________ 4. THE ASSESSING OFFICER ISSUED NOTICE U/S 148 AN D INITIATED THE REASSESSMENT PROCEEDINGS. ON GOING THROUGH A COPY OF THE BANK ACCOUNT OF THE ASSESSEE FURNISHED BEFORE HIM, IT WAS FOUND THAT THE ABOVE REFERRED CHEQUE PAYMENTS WERE NOT REFLECTED. FURTH ER, SOURCE OF CASH PAYMENT OF RS.10 LAC WAS ALSO NOT VERIFIABLE. IN T HE ABSENCE OF ANY EXPLANATION FOTHCOMING REGARDING SOURCE OF INVESTME NT MADE IN THE PURCHASE OF THE HOUSE, THE ASSESSING OFFICER MADE A DDITION FOR THE TOTAL INVESTMENT MADE AT RS.38,69,730/-. THE LD. CIT(A) DELETED THE ADDITION ITA NO.3258/DEL/2017 CO NO.162/DEL/2017 4 OF RS.35 LAC, AGAINST WHICH THE REVENUE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 5. AFTER CONSIDERING BOTH THE SIDES AND PERUSING TH E RELEVANT MATERIAL ON RECORD, IT IS SEEN THAT THE ASSESSEE CLAIMED TO HAVE PAID RS.25 LAC BY MEANS OF THREE CHEQUES ISSUED FROM THE BANK ACCOUNT OF HER HUSBAND. THIS EXPLANATION WAS TENDERED BEFORE THE LD. CIT(A) , WHO ACCEPTED THE SAME WITHOUT MAKING ANY FURTHER ENQUIRY. THERE IS NOTHING ON RECORD TO SHOW THAT SUCH AN EXPLANATION WAS ALSO MADE BEFORE THE ASSESSING OFFICER. SIMILAR IS THE POSITION REGARDING AVAILAB ILITY OF CASH WITH THE ASSESSEE, WHOSE SOURCE WAS EXPLAINED BEFORE THE LD. CIT(A) AS HAVING BEEN RECEIVED FROM THE MOTHER-IN-LAW. AGAIN, THERE IS NOTHING TO SHOW THAT SUCH AN EXPLANATION WAS TENDERED BEFORE THE AS SESSING OFFICER. THE LD. CIT(A), IN ONE-PAGED ORDER, SIMPLY ACCEPTED THE ASSESSEES EXPLANATION ABOUT THE GENUINENESS OF SOURCE OF RS.3 5 LAC EITHER WITHOUT CONDUCTING ANY ENQUIRY AT HIS OWN OR SEEKING COMMEN TS OF THE ASSESSING OFFICER ON THE MATERIAL FILED BEFORE HIM CLAIMING TO BE THE SOURCE OF INVESTMENT. IN MY CONSIDERED OPINION, SU CH AN APPROACH ITA NO.3258/DEL/2017 CO NO.162/DEL/2017 5 CANNOT BE COUNTENANCED. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF ASSESSING OFFICER F OR DECIDING THIS ISSUE AFRESH, AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEE WILL BE AT LIBERTY TO LEAD ANY FRESH EVIDENCE BEFORE THE ASSESSING OFFICER IN SUCH PROCEEDINGS. 6. THE LD. AR DID NOT PRESS GROUND NO.1 OF THE CROS S OBJECTIONS WHICH DEALS WITH THE INITIATION OF REASSESSMENT PRO CEEDINGS U/S 148. THIS GROUND IS, THEREFORE, DISMISSED AS NOT PRESSED . 7. THROUGH OTHER GROUNDS THE ASSESSEE HAS CHALLENGE D NON- ADJUDICATION BY THE CIT(A) OF THE REMAINING ADDITIO NS, WHICH CAME TO BE IMPLIED SUSTAINED WITHUT ANY DECISION. SINCE TH E MATTER IS BEING RESTORED TO THE FILE OF ASSESSING OFFICER FOR EXAMI NATION OF THE GENUINENESS OR OTHERWISE OF RS.35 LAC, IT IS HEREBY DIRECTED THAT THE ASSESSEES EXPLANATION ON THE OTHER ISSUES RAISED B EFORE THE LD. CIT(A) BUT NOT DEALT WITH, BE ALSO DISPOSED OF BY THE ASSE SSING OFFICER, AFTER ALLOWING DUE OPPORTUNITY TO THE ASSESSEE. ITA NO.3258/DEL/2017 CO NO.162/DEL/2017 6 8. IN THE RESULT, THE APPEAL FILED BY THE REV ENUE IS ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.09.2017. SD/- [R.S. SYAL] VICE PRESIDENT DATED, 13 TH SEPTEMBER, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.