Vidushi Tayal, New Delhi V. ITO WARD 20(4), New Delhi

ITA 3452/DEL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8654 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Business income; Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA No.3452/Del/2019 Assessment Year: 2009-10 Vidushi Tayal, 37, Rampuri, Kalka Ji, New Delhi. PAN: ABGPT5656C Vs. ITO, Ward-20(4), New Delhi. (Appellant) (Respondent) Assessee by : Shri Rajesh Mahna, Advocate Revenue by : Shri Om Parkash, Sr. DR Date of Hearing : 02.02.2022 Date of Pronouncement : 18.02.2022 ORDER This appeal filed by the assessee is directed against the order dated 27 th February, 2019 of the CIT(A)-24, New Delhi, relating to Assessment Year 2009- 10. 2. Facts of the case, in brief, are that the assessee is an individual and derives income from house property, business income and long-term capital gain. On the basis of information received from the ITO (Investigation Wing), Unit-III(2) of the Department, the AO reopened the assessment of the case after recording the following reasons:- ITA No.3452/Del/2019 2 “ An information has been received from ITO(Inv.),Unit III, New Delhi that during the course of verification in the case of M/s Vinton Communication Pvt. Ltd. it is found that M/S VCPL has received unsecured loan of Rs.31,84,299/- from Smt. Vidushi Tayal during F.Y. 2008-09 and she has not filed her return of Income. Further it is stated that Smt. Vidushi Tayal has also sold property H. No. 502, Sector 16-A, Faridabad for Rs. 41,50,000/- during F.Y.2008-09 and the said loan was given out of this consideration. It has now transpired that you have no reply to the above notices. It is obvious, therefore, that you have no explanation to offer with regard to the non-compliance to the notices issued by this office. The notices were issued to the addresses available in the return of income filed for the A. Y. 2012- 13. Please note that another opportunity is hereby given to you to file the documents in support of the claims made in the Return of Income. In case, you fail to furnish the information, it shall be presumed that you have nothing to offer as evidence in support of your claim and the case shall be finalized on the basis of material available on records. You are requested to appear before the undersigned at my office at the address mentioned hereinabove on or before 07.03.2016 at 12:00 Noon and to show cause as to why the additions may not be made to your total income as they remained unverified. This may please be treated as FINAL OPPORTUNITY.” 3. In compliance to the statutory notices, the assessee filed the return of income on 7 th March, 2016 and filed the computation of income. Despite a number of opportunities granted by the AO to substantiate the long-term capital gain earned by the assessee and substantiate the various deductions claimed, the assessee failed to appear before him for which the AO completed the assessment u/s 144/147 of the Act determining the total income at Rs.17,56,670/-. ITA No.3452/Del/2019 3 4. In appeal, the Ld. CIT(A) upheld the addition made by the AO and also dismissed the ground challenging the validity of the reassessment proceedings. 5. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds:- “1. On the facts and in the circumstances of the case and in law ld. CIT erred in confirming reopening of assessment by the ld. Assessing Officer u/s 147of the I.T. Act. 2. On the facts and in the circumstances of the case ld. Assessing officer erred in not allowing proper opportunity of being heard to the assessee and thus wrongly passed order u/s 144 of the Income tax Act. This was wrongly confirmed by ld. CIT(A). 3. On the facts and circumstances of the case and in law ld.CIT(A) erred in confirming the addition made by the Assessing Officer of Rs. 16,56,644/- under the head capital gains as against capital loss of Rs. 53,144/-. 4. On the facts and circumstances of the case and in law ld. CIT(A) erred in not adjudicating the ground no.6 i.e. the last ground of appeal which relates to allowing basic exemption to the assessee. 5. The appellant's craves leave to add, delete, amend or modify any ground of appeal. The above grounds are without prejudice to each other.” 6. The ld. Counsel for the assessee submitted that there was a spate of complaints against all members of the assessee’s family by an estranged relative of a former director before various government departments for which he was under tremendous mental pressure. He submitted that due to situation beyond the control of the assesseee she could not appear before the AO for which an ex parte order has been passed. He submitted that in the interest of justice the assessee should be given an opportunity to substantiate her case. Further, the ITA No.3452/Del/2019 4 AO, while completing the assessment has not allowed the indexed cost of improvement as claimed by the assessee. Referring to the copy of the assessment order, he submitted that the case was taken up for assessment on 9 th February, 2016 by issuing a notice for submission of information by 17 th February, 2016. This shows that the case was taken up at the fag end of the financial year 2015-16 by the end of which the assessment was to be barred by limitation. This shows that the AO was in tremendous hurry to pass the assessment order. Further, there is no mention of service of any notice. The time given to the assessee was very less. The ld.CIT(A) also dismissed the appeal which is not correct. He, accordingly submitted that in the interest of justice, the assessee should be given an opportunity to substantiate her case. 7. The ld. DR, on the other hand, relied on the orders of the AO and the CIT(A). He submitted that although the AO had not given proper opportunity, however, the ld.CIT(A) had given proper opportunity to the assessee and, thus, the assessee was not prevented from submitting all the details before the CIT(A). He accordingly submitted that the order of the CIT(A) be upheld and the grounds raised by the assessee should be dismissed. 8. I have heard the rival arguments made by both the sides and perused the orders of the AO and the CIT(A). I have also considered the various decisions cited before me. I find, the AO, in the instant case, determined the total income of the assessee at Rs.17,56,760/- in the order passed u/s 144/147 of the Act on ITA No.3452/Del/2019 5 14 th March, 2016 which has been upheld by the CIT(A). It is the submission of the ld. Counsel that the AO, in the instant case, has given a very short time to submit the details and the principles of natural justice has not been followed and, therefore, in the interest of justice, the assessee should be given due opportunity to represent her case properly. Considering the totality of the facts of the case and in the interest of justice, I deem it proper to restore the issue to the file of the AO with a direction to grant one final opportunity to the assessee to substantiate her case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the AO and cooperate in early completion of the assessment proceedings by filing the requisite details and without seeking any adjournment under any pretext, failing which the AO is at liberty to pass appropriate order as per law. I hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purpose. 9. In the result, the appeal filed by the assessee is allowed for statistical purposes. The decision was pronounced in the open court on 18.02.2022. Sd/- (R.K. PANDA) ACCOUNTANT MEMBER Dated: 18 th February, 2022 dk ITA No.3452/Del/2019 6 Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi