Ajay Kumar Mukherjee, New Delhi V. ITO, New Delhi

ITA 3359/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58486 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-01-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 28-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: D K SEN
• Keywords: Salary income; Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI I.P. BANSAL, JUDICIAL MEMBER ITA NO.3359/DEL/2011 ASSESSMENT YEAR : 2007-08 AJAY KUMAR MUKHERJEE, 40A, 88, DDA FLAT, CHITTARAJAN PARK, NEW DELHI. PAN : ADGPM1335D VS. ITO, WARD 48(4), MAYUR BHAWAN, CONNAUGHT PLACE, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI D.K. SEN, ADVOCATE REVENUE BY : MRS. ANUSHA KHURANA, SR.DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 31 ST MAY, 2011 FOR ASSESSMENT YEAR 2007-08. GROUNDS OF APPEAL READ AS UNDER:- 1. FOR THAT ORDER PASSED IN APPEAL BY THE LEARNED CIT (A)- XXX, NEW DELHI IS ARBITRARY, EXCESSIVE, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LEARNED CIT (A)-XXX, NEW DELHI IN CON SIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ERRED IN CO NFIRMING ADDITION OF RS.1,01,78,800/- ON ACCOUNT OF UNEXPLAINE D INCOME U/S 68 OF THE INCOME TAX ACT, 1961. 3. FOR THAT THE LEARNED CIT (A) WRONGLY OBSERVED THAT A PPELLANT VOLUNTARILY OFFERED THE IMPUGNED SUM AS IN GROUND NO. 2 FOR ASSESSMENT. ITA NO.3359/DEL/2011 2 4. FOR THAT THE APPELLANT RESERVES HIS RIGHT TO ADD TO, TO A LTER, TO AMEND THE GROUND/S TAKEN AND TO ADDUCE PAPER/S AND DOCUMENT/S AT THE TIME OF HEARING. 2. THE ASSESSEE FILED HIS RETURN OF INCOME ON 19 TH NOVEMBER, 2007 AT AN INCOME OF ` 6,08,935/-. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY ON INFORMATION RECEIVED FROM AIR. IT WAS FO UND THAT THE ASSESSEE WAS MAINTAINING SEVERAL BANK ACCOUNTS WHICH ARE L ISTED IN THE ASSESSMENT ORDER IN WHICH THERE WERE SEVERAL CASH DE POSITS AGGREGATING TO AN AMOUNT OF ` 1,08,07,500/-. IN VI EW OF THE FACT THAT THE ASSESSEE COULD NOT SATISFACTORILY EXPLAIN THOSE DEPOSIT S, THE SAME WERE ADDED TO THE INCOME OF THE ASSESSEE WITH OTHER ADD ITIONS AND THE INCOME OF THE ASSESSEE WAS ASSESSED AT ` 1,17,59,660/-. THE ADDITIONS WERE AGITATED IN AN APPEAL FILED BEFORE THE CIT (A) . IN THE SUBMISSIONS MADE BY THE AR OF THE ASSESSEE IT WAS SUBMITTED THAT THE ASSESSEE IS WILLING TO PAY TAX FOR BUYING PEACE OF MIND ON THE CASH DEPOSITS IN VARIOUS BANK ACCOUNTS THE DETAILS OF WHICH HAVE BEEN G IVEN AT PAGES 3 AND 4 OF THE ORDER OF THE CIT (A) AND, AFTER RECORD ING THE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE LEARNED CIT (A) HAS UP HELD THE ADDITION TO THE EXTENT OF ` 1,02,41,244/- OUT OF ` 1,08,50,179/- ON THE GROUND THAT THE ASSESSEE HAS VOLUNTARILY SURRENDERED THE DEPOSITS AS HIS INCOME AND WAS READY TO PAY THE TAX IMPOSED UPON T HE INCOME OF ` 1,02,41,244/-. IT IS IN THIS MANNER LEARNED CIT (A) HAS UPHELD THE ADDITIONS TO THE EXTENT THEY HAVE BEEN AGITATED BY T HE ASSESSEE IN THE PRESENT APPEAL. 3. AFTER NARRATING THE FACTS, IT WAS SUBMITTED BY THE LEARNED AR THAT GROUND NO.1 RAISED BY THE ASSESSEE IS NOT A GENERAL GROUN D, BUT, THERE IS A SPECIFIC GRIEVANCE OF THE ASSESSEE AGAINST THIS GROUND . HE HAS SUBMITTED BEFORE US A COPY OF THE LETTER SUBMITTED BEF ORE THE COMMISSIONER (APPEALS) BY HIM WHICH IS DATED 1 ST MARCH, 2011 THE CONTENTS OF WHICH ARE AS UNDER:- ITA NO.3359/DEL/2011 3 DATED, 01.03.2011. TO THE COMMISSIONER OF INCOME TAX (APPEAL-XXX), AAYAKAR BHABAN, DISTRICT CENTRE, LAXMI NAGAR, NEW DELHI. SUB: APPEAL FOR ADJOURNMENT OF HEARING PENDING DISPO SAL OF SETTLEMENT APPLICATIONS. REF: APPEAL CASE BEARING NO.387A/2009-2010 FOR A.Y.2007-2008 IN RESPECT OF THE ASSESSEE SHRI AJOY MUKHERJEE, RESIDENT OF 40A, 88DDA FLATS, CHITTARANJAN PARK, NEW DELHI AND P.A. NO.ADGPM1335D. SIR, KINDLY REFER TO ABOVE. THAT THE HEARING OF THE APPEAL APPLICATION HAS BEEN FI XED TODAY ON 02.03.2011. THAT THE APPLICANT FILED APPLICATION U/S 245C(I) OF THE INCOME TAX ACT 1961, BEFORE THE HONBLE SETTLEMENT COMMISSION, PRINCIPAL BENCH, NEW DELHI, COVERING THE ASSESSMENT YEARS 2006-2007, 2008-2009 TO 2010-2011. THE MATTER HAS BEEN HEARD AND ORDER PASSED U/S 245D(I). THE FINAL HEARING IS STILL PENDING. THE SAID APPLICATIONS IN THE SETTLEMENT COMMISSION MAY, IN ALL PROBABILITY, BE FIXED FOR HEARING IN APRIL OR MAY, 2011. THAT IN MY APPLICATION DATED 29.10.2010 IT HAS BEEN STATED THAT THE APPELLANT DOES NOT OWN A FEW BANK ACCOUNTS, WHICH HAS BEEN WRONGLY CONSIDERED IN THE ORDER OF AS SESSMENT PASSED BY THE ASSESSING OFFICER. THE REPLY OF THE AS SESSING OFFICER IN REFERENCE TO MY SUBMISSION DATED 29.10.201 0 MADE BEFORE YOU IS VITAL AND RELEVANT IN COURSE OF HEARING OF THE APPEAL APPLICATION. IN VIEW OF THE ABOVE MATER I APPEAL TO YOU TO KINDLY ADJOURN THE HEARING TILL THE FINAL DISPOSAL OF THE SETTLE MENT APPLICATIONS IN THE INTEREST OF NATURAL JUSTICE AND ALSO FOR THE PURPOSE OF AVOIDING CONFLICTING ORDERS. ITA NO.3359/DEL/2011 4 AND FOR YOUR SUCH ACT OF KINDNESS THE APPELLANT SHALL EVER PRAY. YOURS TRULY, SD/- (D.K. SEN) A/R & ADVOCATE 4. HE SUBMITTED THAT IT WAS BROUGHT TO THE NOTICE OF THE LEARNED CIT (A) THAT THE ASSESSEE HAS ALSO APPROACHED SETTLEMENT COMM ISSION IN RESPECT OF ASSESSMENT YEARS 2006-2007, 2008-2009 TO 2010- 2011 AND THE MATTER HAS ALREADY BEEN HEARD AND THE ORDER HAS B EEN PASSED U/S 245D(I) BY THE SETTLEMENT COMMISSION AND FINAL HEARIN G IS STILL AWAITED WHICH IS LIKELY TO BE HAPPENED IN APRIL OR MAY, 2011 AND, THUS, ADJOURNMENT WAS SOUGHT FROM THE CIT (A) WHICH DESPITE THE FACT THAT THE AFOREMENTIONED APPLICATION WAS FILED AND TO THE SURPRISE OF THE ASSESSEE ORDER WAS PASSED BY LEARNED CIT (A) ON 31 ST MAY, 2011 WITHOUT AWAITING THE ORDER OF THE SETTLEMENT COMMISSI ON. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTER SH OULD GO BACK TO THE FILE OF CIT (A) TO CONSIDER THE IMPLICATIONS OF T HE ORDER PASSED BY THE SETTLEMENT COMMISSION. HE SUBMITTED THAT ORDER PA SSED BY THE SETTLEMENT COMMISSION WILL HAVE IMPACT UPON THE ADDIT IONS TO BE MADE OR CONSIDERED IN THE YEAR UNDER CONSIDERATION. HE DREW OUR ATTENTION TOWARDS PAGE 13 OF THE PAPER BOOK WHICH, A CCORDING TO HIM, IS A COPY OF ASSET STATEMENT AS ON 1 ST APRIL, 2009 FILED BEFORE THE SETTLEMENT COMMISSION ON 20 TH JUNE, 2011. FOR THE SAKE OF CONVENIENCE, THE SAME IS REPRODUCED BELOW:- MR. AJOY KUMAR MUKHERJEE (RUPEES) SALARY INCOME A.Y. 2006-07 2,47,872 A.Y. 2007-08 8,98,315 ADDL. INCOME A.Y.2006-07 35,00,000 46,46,187 ITA NO.3359/DEL/2011 5 LESS: DRAWINGS FOR 2 YEARS @ RS.1,20,000 P.A. 2,40,000 44,06,187 FROM AGRICULTURAL INCOME OF PAST YEARS OF PARENTS 1,12,04,432 OPENING CAPITAL AS ON 1.4.2007 1,56,10,619 ASSET ON 31.3.2006 PONSC PURCHASED ON 12.3.2005 50,000 AXIS BANK A/C 7740 1,24,144 HDFC GURGAON 3357 21,983 1,96,127 + BALANCE AMOUNT AGAINST INCOME LYING IN CASH. 5. HE SUBMITTED THAT IF THE AFOREMENTIONED CALCULATI ON IS KEPT IN CONSIDERATION, THE ASSESSEE WILL BE HAVING A CASH BALANCE WITH HIM MORE THAN THE AMOUNT DEPOSITED IN VARIOUS BANK ACCOUN TS DURING THE RELEVANT FINANCIAL YEAR. HE, THEREFORE, SUBMITTED T HAT IT WILL BE APPROPRIATE TO RESTORE THE MATTER BACK TO THE FILE O F CIT (A). HE FURTHER SUBMITTED THAT THE ASSESSEE HAS ALREADY FILED AN APPLICAT ION BEFORE COMMISSIONER OF INCOME-TAX (APPEALS) WHICH IS DATED 27 TH JUNE, 2011 THE COPY OF WHICH HAS BEEN PLACED AT PAGES 1-2 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT THE COPY OF THE ORDER PASSED BY THE SETTLEMENT COMMISSION WHICH IS DATED 21 ST SEPTEMBER, 2011 IS ALSO PLACED IN THE PAPER BOOK AT PAGES 14-22 OF THE PAPER BOOK. 6. HE FURTHER SUBMITTED THAT ANOTHER REPRESENTATIVE O F THE ASSESSEE APPEARED BEFORE THE COMMISSIONER (APPEALS) WAS NEVER AU THORIZED TO SURRENDER THE SAID AMOUNT. HE SUBMITTED THAT ALL THESE POINTS MAY BE RESTORED BACK TO THE FILE OF CIT (A) FOR RE-ADJUDICA TION. 7. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDER OF ASSESSING OFFICER AND CIT (A). SHE SUBMITTED THAT THE ASSESSEE HIMSELF ITA NO.3359/DEL/2011 6 HAS SURRENDERED THE AMOUNT BEFORE THE CIT (A), HENCE, THE MATTER SHOULD NOT BE RESTORED BACK TO THE FILE OF CIT (A). 8. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENTI ONS HAVE CAREFULLY BEEN CONSIDERED. THE COPY OF APPLICATION FILED BY THE LEARNED COUNSEL OF THE ASSESSEE DATED 1 ST MARCH, 2011 HAS ALREADY BEEN REPRODUCED. IT WAS BROUGHT TO THE NOTICE OF CIT (A) THAT THE ASSESSEE HAD ALREADY APPROACHED THE SETTLEMENT COMMISSION IN R ESPECT OF EARLIER YEAR AND IT WAS ALSO SUBMITTED THAT FINAL HEAR ING IS LIKELY TO TAKE PLACE. THE ASSESSEE HAS ALSO SUBMITTED COPY OF ASSET STATEME NT ACCORDING TO WHICH THERE WILL BE AVAILABILITY OF CA SH BALANCE WITH THE ASSESSEE. KEEPING IN VIEW ALL THESE FACTS, WE CONSIDER I T JUST AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF CIT (A) WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL FILED BY THE ASSESSEE IN TH E LIGHT OF THE ORDER PASSED BY THE SETTLEMENT COMMISSION AND THE DOCUM ENTS SUBMITTED BY THE ASSESSEE IN THIS REGARD. THEREFORE, WE RESTORE THIS MATTER BACK TO THE FILE OF CIT (A) FOR RE-ADJUDICAT ION OF THE ISSUES WHICH ARE AGITATED BY THE ASSESSEE IN THE PRESENT APPEAL. WE DIRECT ACCORDINGLY. 9. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL F ILED BY THE ASSESSEE IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 13.01.20 12. SD/- SD/- [G.D. AGRAWAL] [I.P. BANSAL] VICE PRESIDENT JUDICIAL MEMBER DATED,13.01.2012. DK ITA NO.3359/DEL/2011 7 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES