Sh. Santarpal Singh, Roorkee V. ITO, Roorkee

ITA 3274/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91179 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 02-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Keywords: Principle of natural justice

Judgement Text

ITA NO. 3274/ DEL/ 2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 3 274 /DEL/2013 A.Y. : 2009 - 10 SHRI SANTARPAL SINGH, S/O SHRI RANDHIR SINGH, 270, GANESHPUR, ROORKEE (PAN: ABUPS3606D ) VS. INCOME TAX OFFICER, WARD - 2, ROORKEE, UTTRANCHAL (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SH. BRR KUMAR, SR. DR. DATE OF HEARING : 02 - 6 - 201 5 DATE OF ORDER : 02 - 6 - 201 5 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - I , NEW DELHI DATED 04 . 2 .201 3 P ERTAINING TO ASSESSMENT YEAR 2009 - 10 ON THE FOLLOWING GROUNDS: - 1. THE APPELLANT ORDER, AS COMPLETED, IS WRONG, ILLEGAL, AND AGAINST THE FACTS OF THE CASE. ITA NO. 3274/ DEL/ 2013 2 2. IN THIS CASE LD. A.O. HAS PASSED THE ORDER BEFORE THE DATE FIXED FOR HEARING. IN THE APPEAL, TOO, LD. CIT APPEAL HAS NOT PROVIDED THE PROPER OPPORTUNITY OF HEARING. EVEN THE LD CIT APPEAL HAS NOT SUPPLIED THE COPY OF REMAND REPORT PREPARED BY A.O. AFTER DETAIL EXAMINATION OF ACCOUNT AND CONSIDERING THE EVIDENCES AND MATERIAL PRODUCED BY THE APPELLANT DURING THE COURSE OF REMAND PRO CEEDING. SO THE APPELLANT COULD NOT REBUT THOSE MATERIALS. WHICH ARE AGAINST THE APPELLANT, IN THE REMAND REPORT. 3. THAT LD. CIT APPEAL HAS CONFIRMED THE REJECTION OF ACCOUNTS AND HAS ALSO CONFIRMED THE APPLICATION OF HIGHER RATE OF N.P. ON THE BASIS OF ACCOUNT. WHEN THE APPELLANT HAS PRODUCED THE ACCOUNT BEFORE LD. A.O. DURING THE COURSE OF REMAND PROCEEDING, LD. CLT APPEAL SHOULD HAVE NOT GIVEN THE ADVERSE FINDING REGARDING THE ACCOUNT, IN APPELLATE ORDER. 4. THAT THE LD. CIT APPEAL SHOULD HAVE NOT CON FIRMED THE APPLICATION OF N.P. @ 8%, ) WHEN THE APPELLANT HAS SHOWN THE N.P. 5.03%, WHICH IS QUITE REASONABLE. 5. THAT THE LD. CIT APPEAL IS NOT JUSTIFIED FOR ENHANCING THE CONTRACT RECEIPTS ON THE BASIS OF ENTRIES OF INDIAN ITA NO. 3274/ DEL/ 2013 3 OVERSEAS BANK, KURDI AND SH OULD HAVE NOT TAKEN THE EXTRA INCOME RS. 228800.00 OVER AND ABOVE DETERMINED IN ASSESSMENT ORDER. WHEN ALL THE RECEIPTS OF CONTACT ARE FULLY VERIFIABLE FROM T.D.S. CERTIFICATE ISSUED BY THE DEPARTMENT. IN FACT THE LD. CIT APPEAL MADE THIS ADDITION WITHOUT GOING THROUGH THE WRITTEN SUBMISSION FI LED BY THE APPELLANT IN APPEAL. HENCE THE ADDITION OF RS. 228800.00 ON THE BASIS OF EXTRA CONTRACT RECEIPTS IS TOTALLY, WRONG , I LLEGAL AND UNWARRANTED. 6. THE APPELLANT HAS EXPLAINED EACH AND EVERY ENTRY OF INDIAN OVERSEAS BANK IN HIS WRITTEN SUBMISSION AND HAS ALSO FILED THE EVIDENCES AND SOURCES IN SUPPORT OF HIS CONTENTIONS. LD. A.O. HAS ALSO VERIFIED CONTENTS OF THE WRITTEN SUBMISSION IN REMAND PROCEE DING. SO THE OBSERVATION OF LD. CIT (APPEAL) THAT THE APPELLANT HAS NOT PRODUCED THE RELEVANT EVIDENCE TO EXPLAIN THE NATURE AND SOURCE OF THE DEPOSITS WITH INDIAN OVERSEAS BANK, IS NOT CORRECT. IN FACT THE APPELLANT HAS EXPLAINED ALL THE ENTRIES OF THIS BANK ACCOUNT. SO LD. CIT APPEAL SHOULD HAVE NOT CONFIRMED THE ADDITION OF RS. 2635667.00 ON THE BASIS OF ENTRIES OF INDIAN OVERSEAS BANK ACCOUNT. ITA NO. 3274/ DEL/ 2013 4 7. THAT THE LD. CIT APPEAL SHOULD HAVE NOT CONFIRMED THE ADDITION OF RS. 179000.00, WHEN THIS F.D. WAS NOT PU RCHASED BY THE APPELLANT NOR THE AMOUNT OF THE F.D., AFTER ENCASHMENT, WAS RECEIVED BY THE APPELLANT. MOREOVER THE SOURCE OF THE DEPOSIT OF F.D. IS EXPLAINED, IN THE CERTIFICATE OF THE BANK. SO THE LD. CLT APPEAL SHOULD HAVE NOT CONFIRMED THE ADDITION OF R S. 179000.00 IN THE APPELLATE ORDER. 8. THE INCOME DETERMINED IN APPEAL IS VERY - VERY EXCESSIVE AND WITHOUT ANY BASIS. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY LD. DR , THEREFORE, NEED NOT TO REPEAT HERE FOR THE SAKE OF CONVE NIENCE. 3. THE ASSESSEE FILED THE PRESENT APPEAL ON 23.5.2013 WHICH CAME UP FOR HEARING BEFORE THE BENCH ON 26.11.2013. ASSESSEE FILED HIS WRITTEN REQUEST FOR ADJOURNMENT AND THE BENCH ADJOURNED THE CASE FOR 20.5.2014. BOTH THE PARTIES WERE INFORMED I N THE OPEN COURT. ON 20.5.2014 AGAIN ASSESSEE FILED AN APPLICATION FOR ADJOURNMENT AND THE BENCH AGAIN ADJOURNED THE CASE FOR 27.11.2014. ON 27.11.2014 AGAIN ASSESSEE FILED THE APPLICATION FOR ADJOURNMENT AND THE BENCH ADJOURNED THE MATTER FOR TODAY I.E . 02.6.2015. TODAY AGAIN ASSESSEE FILED THE APPLICATION FOR ITA NO. 3274/ DEL/ 2013 5 ADJOURNMENT. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF PRESENT CASE AS WELL AS THE GROUNDS RAISED BY THE ASSESSEE, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ADJOURN THE CASE AGAIN AND AGAIN, HENCE, WE REJECT THE ADJOURNMENT APPLICATION. THEREFORE, WE ARE DECIDING THE ISSUES IN DISPUTE EXPARATE QUA ASSESSEE AND AFTER HEARING THE LD. DR. 4. AT THE TIME OF HEARING, LD. DR RELIED UPON THE ORDER PASSED BY THE LD. CIT(A). 5. WE HAVE THOROUGHLY GONE THROUGH THE ORDERS PASSED BY THE REVENUE AUTHORITIES RAISED BY THE ASSESSEE AND WE ARE OF THE VIEW THAT THE ASSESSEE HAS RAISED 8 GROUNDS OF APPEAL IN WHICH MAINLY THE ASSESSEE CHALLENGED THE ORDER OF THE LD. CIT(A) ON TH E GROUND THAT ASSESSEE WAS NOT PROVIDED PROPER OPPORTUNITY OF HEARING BY THE LD. CIT(A). ASSESSEE FURTHER REQUESTED THAT EVEN LD. CIT(A) HAS NOT SUPPLIED THE COPY OF THE REMAND REPORT PREPARED BY THE AO, AFTER DETAILED EXAMINATION OF THE ACCOUNTS AND CO NSIDERING THE EVIDENCE AND MATERIAL PRODUCED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR WHICH THE ASSESSEE COULD NOT REBUT THOSE MATERIAL , WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. NO DOUBT THAT THE ASSESSEE HAS ALSO CHALL ENGED THE IMPUGNED ORDER ON MERIT ALSO. BUT KEEPING IN VIEW OF THE ORDER PASSED BY THE AO AS WELL AS THE LD. CIT(A), WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS NOT PROVIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND DECIDE THE ITA NO. 3274/ DEL/ 2013 6 ISSUES IN DISPUTE AGAINST THE ASSESSEE, WHICH IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EYES OF LAW. IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO DE CIDE THE SAME AFRESH, UNDER THE LAW, AFTER PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN C OURT ON 02/06 /20 1 5 . SD/ - SD/ - [ J.S. REDDY ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 02 / 6 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES