Monika Rohra, Delhi V. ITO, New Delhi

ITA 3477/DEL/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5674 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 19-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 09-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Keywords: Income from undisclosed sources; Opportunity of being heard; Additional evidence; Wrong claim
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE SHRI N.K SAINI, ACCOUNTANT MEMBER & SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO:- 3477/DEL/2014, ( ASSESSMENT YEAR: 2009-10) MONIKA ROHRA, B-941, NEW AZADPUR, SUBZI MANDI, DELHI 110033. VS. ITO, WARD -19(1), NEW DELHI. PAN NO: AAKPR9921M APPELLANT RESPONDENT ASSESSEE BY : SH. VED JAIN (CA) REVENUE BY : SH. S. R. SENAPATI (SR. DR) DATE OF HEARING : 20.06.2018. DATE OF PRONOUNCEMENT : 22/06/2018. ORDER PER: KULDIP SINGH, JM THE APPELLANT, MONIKA ROHRA,B-941, NEW AZADPUR, DE LHI 110033, (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILI NG THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 27.02. 2014 QUA ASSESSMENT YEAR 2009-10 PASSED BY LD. CIT(A)-XXII, NEW DELHI, ON THE GROUNDS THAT:- 2 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CI T(A)] IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. THAT THE ENTIRE ORDER PASSED BY THE LEARNED CIT (A) DISMISSING THE APPEAL OF THE ASSESSEE STANDS VITIATED BY THE OBSERVATIONS MADE AND FACTS TAKEN INTO CONSIDERATIO N BY THE CIT(A) WHICH ARE IRRELEVANT AND DE HORSE THE ISSUE BEFORE HIM AND AS SUCH THE SAME IS LIABLE TO BE QUASHED. 3(I) THAT THE LEARNED CIT(A) HAS ERRED IN DRAWING ADVERSE INFERENCE AGAINST THE ASSESSEE ON THE BASIS OF FACT S WHICH HAVE NEITHER BEEN VERIFIED NOR INVESTIGATED. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN DRAWING ADVER SE INFERENCE AGAINST THE ASSESSEE ON THE BASIS OF NOTING IN THE ORDER SHEET MADE BY HIM ABOUT THE FIRM, M/S HARISH FRUIT TRADER S. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE O RDER WITHOUT GIVING ASSESSEE A PROPER AN ADEQUATE OPPORTUNITY OF BEING HEARD IN CLEAR VIOLATION OF PRINCIPLE OF NATURAL JU STICE. 5(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE BOOKS OF ACCOUNTS OF THE ASSESSEE UNDER SECTION 145(3) OF TH E ACT DESPITE THE FACT THAT THE AO HAS ACCEPTED THE SAME. (II) THAT THE BOOKS OF ACCOUNTS HAVE BEEN REJECT ED BY THE CIT(A) ARBITRARILY WITHOUT GIVING ASSESSEE A PROPER NOTICE . 6(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING TH E ADDITION OF RS 13,63,576/- MADE BY THE AO ON ACCOUNT OF DIFFERENCE IN OPENING BALANCE IN THE NAME OF SMC SECURITIES & SYS TEMS. (II) THAT THE SAID ADDITION HAS BEEN CONFIRMED DES PITE THE ASSESSEE FILING ALL EVIDENCES TO PROVE THAT ONLY AN AMOUNT O F RS.4,95,569/- RELATES TO SMC GLOBAL SECURITIES SYSTEM & OTHERS RE LATE TO 9 PARTIES. 7(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING TH E ACTION OF THE AO IN MAKING ADDITION OF AN AMOUNT OF RS.23,00,000/ - TAKEN BY ASSESSEE AS ADVANCE FROM BHOJ RAJ HARISH KUMAR. (II) THAT THE ADDITION HAS BEEN CONFIRMED BY INDULG ING INTO SURMISES AND CONJECTURES IGNORING THE EXPLANATION AND EVIDEN CES SUBMITTED BY THE ASSESSEE. (III) THAT THE ADDITION HAS BEEN MADE IN TOTAL DISR EGARD TO THE FACT THAT JUST BY MENTIONING A WRONG NOMENCLATURE IN THE BOOK S OF ACCOUNTS THE ADVANCE OR LOAN AS THE CASE MAY BE DOE S NOT LEAD TO DISALLOWANCE OF THE SAME AND CONSEQUENT ADDITION TH ERETO. 8(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING TH E ADDITION OF RS.1,00,000/- MADE BY THE AO ON ACCOUNT OF PETTY CR EDITORS. 3 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI. (II) THAT THE ADDITION HAS BEEN CONFIRMED REJECTING THE DETAILED EXPLANATION AND EVIDENCES BROUGHT ON RECORD BY THE ASSESSEE IN SUPPORT OF THE SAME. 9(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING TH E ACTION OF THE AO IN TREATING AGRICULTURAL INCOME AMOUNTING TO RS. 21,65,000/- AS INCOME FROM UNDISCLOSED SOURCES. (II) THAT THE SAID ADDITION HAS BEEN CONFIRMED BY M ISINTERPRETING THE EVIDENCES FILED BY THE ASSESSEE AND BY INDULGING IN CONJECTURE AND SURMISES. (III) THAT THE ADDITION HAS BEEN CONFIRMED REJECTIN G THE FACT THAT THE ASSESSEE HAS BEEN EARNING AGRICULTURAL INCOME FOR T HE LAST MANY YEARS AND HAS BEEN ACCEPTED BY THE DEPARTMENT EVEN IN PROCEEDINGS UNDER SECTION 143(3) OF THE ACT. 10(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE ASSESSEE TO ALLOW SET OFF OF BROUGHT FORWARD LO SS OF RS.51,90,884/- OF EARLIER YEARS. (II) THAT THE SET OFF OF BROUGHT FORWARD LOSS HAS B EEN DISALLOWED BY THE CIT ARBITRARILY IGNORING THE FACT THAT THE ASSE SSEE HAS LED ALL EVIDENCES IN SUPPORT OF ITS CONTENTION. 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED I ON FACTS AND IN LAW IN REJECTING THE CO NTENTION OF THE ASSESSEE TO ALLOW CREDIT OF TDS ON AN ADDITION OF R S.2,63,324/- MADE BY THE AO ON ACCOUNT OF INTEREST UPPAL CHADHA HI-TECH DEVELOPERS PVT. LTD. 12. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND O R ALTER ANY OF THE GROUND APPEAL. 2. BRIEFLY STATED THE FACTS NECESSARY TO ADJUDICATE THE ISSUES AT HAND ARE: THE ASSESSEE FILED A RETURN OF INCOME AS AN AGRICUL TURIST AT THE INCOME OF RS. 1,99,480/. ASSESSING OFFICER FRAMED ASSESSM ENT U/S 143(3) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) AND MADE ADDITION OF RS. 2,63,324/- RS. 13,63,576/-, RS. 278264/-, RS. 24,00 000, RS. 2165000 AND RS. 51,90,884/- ON ACCOUNT OF INTEREST INCOME RECE IVED FROM M/S UPPAL CHADHA HI-TECH DEVELOPERS PVT. LTD., ON ACCOUNT OF DIFFERENCE IN THE 4 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI. CREDIT SHOWN FROM M/S SMC GLOBAL SECURITIES SYSTEM, ON ACCOUNT OF FALSE CLAIMS OF SET OFF AS SHORT TERM CAPITAL GAIN, ON AC COUNT OF UNSECURED LOANS CLAIMED FROM SEVEN PARTIES, ON ACCOUNT OF TREATING CLAIMED AGRICULTURAL INCOME AS INCOME FROM UNDISCLOSED SOURCES AND ON AC COUNT OF DISALLOWANCE OF CLAIM OF SET OFF OF LOSS RESPECTIVE LY, AFTER DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A) B Y WAY OF FILING THE APPEAL, WHO HAS DISMISSED THE APPEAL. FEELING AGGR IEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING TH E PRESENT APPEAL. 4 . WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDER PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF THE F ACTS AND CIRCUMSTANCES OF THE CASE . 5. AT THE VERY OUTSET, IT IS CONTENDED BY LD. AR FOR THE ASSESSEE THAT AN ADEQUATE OPPORTUNITY OF BEING HEARD HAS NOT BEEN GR ANTED BY THE LD. CIT(A), WHO HAS NEITHER EXAMINED DOCUMENTS HIMSELF NOR GOT VERIFIED, THE SAME BY THE AO BY CALLING REMAND REPORT. 6. HOWEVER, ON THE OTHER HAND, LD. DR FOR THE REVENUE TO REPEL THE CONTENTIONS RAISED BY THE ASSESSEE, DREW OUR ATTENT ION TOWARDS PARA 8.22 5 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI. AT PAGE NO. 27 OF THE IMPUGNED ORDER; AND CONTENDED THAT AN ADEQUATE OPPORTUNITY OF BEING HEARD GIVEN TO THE ASSESSEE BE FORE PASSING THE IMPUGNED ORDER. 7. ASSESSEE CLAIMED HERSELF TO BE AN AGRICULTURIST AN D EARNED AGRICULTURAL INCOME OF RS. 21,65,000/- DURING THE Y EAR UNDER ASSESSMENT FROM THE LAND MEASURING OF 31.34 ACRE TAKEN ON LEAS E DURING THE PERIOD 25.02.2006 TO 24.02.2009 FROM SOME FARMERS IN KRISH NA DISTRICT IN THE STATE OF ANDHRA PRADESH. ASSESSEE BROUGHT ON RECOR D 3 LEASE DEEDS DURING THE APPELLATE PROCEEDINGS. 8 . BEFORE LD. CIT(A), THE ASSESSEE MOVED AN APPLICAT ION FOR BRINGING ON RECORD ADDITIONAL EVIDENCE, WHICH WAS DISMISSED BY LD.CIT(A) BY RETURNING THE FOLLOWING FINDINGS:- 8.22 THE APPELLANT HAVING ADMITTED THAT THE LEASE DEEDS FILED BEFORE THE ASSESSING OFFICER DID NOT CONTAIN ANY SI GNATURE OF THE LESSEE, BUT HAS FILED 3 LEASE DEEDS IN THE APPELLAT E PROCEEDINGS WHICH ARE ALL HAVING SIG NATURE OF BOTH THE LESSOR AND THE LESSEE. THUS IT IS CLEAR THAT EITHER THE APPELLANT HAS MANI PULATED THE CLAIMED LEASE DOCUMENTS AFTER THESE WERE SHOW ASSES SING OFFICER DURING THE ASSESSMENT PROCEEDINGS, OR THE APPELLANT HAS FILED SOME DOCUMENTS WHICH WERE NOT FILED BEFORE THE ASSESSING OFFICER. IN THE FIRST SITUATION, WHERE THE ASSESSEE MANIPULATED THE DOCUMENTS, THE APPELLANT HAS OBVIOUSLY PUT THE SIGNATURES OF THE C LAIMED LESSEE IN THE CLAIMED LEASE DEED, THOUGH WHEN THE CLAIMED LEA SE DEED WAS PUT UP BEFORE THE ASSESSING OFFICER, IT DID NOT HAV E ANY SIGNATURE OF THE LESSEE. THE LEASE PERIOD IS CLAIMED TO HAVE STA RTED ON 25.02.06 AND ENDED ON 24.02.09. THE ASSESSMENT PROCEEDINGS S TARTED MUCH AFTER THE FILING OF RETURN BY THE ASSESSEE FOR A.Y. 09-10 ON 30.09.09. THUS THE APPELLANT HAS MANIPULATED THE DO CUMENTS MUCH AFTER THE CLAIMED SIGNING OF LEASE DEEDS ON 25.02.0 6 AND ALSO 6 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI. MUCH AFTER THE LEASE PERIOD ENDED ON 24.02.09. NO C REDIT CAN BE GIVEN FOR SUCH MANIPULATION IN THE DOCUMENTS. IN TH E SECOND SITUATION, WHERE IT IS TAKEN THAT THE APPELLANT FIL ED DOCUMENTS WHICH WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER, THE APPELLANT LOOSES ANY RIGHT TO PRODUCE SUCH DOCUMENTS SUBSEQUE NTLY BEFORE THE COMMISSIONER (APPEALS) UNLESS THE APPELLANT IS ABLE TO SHOW THAT ONE OF THE CIRCUMSTANCES SPECIFIED IN CLAUSE ( A), (B), (C) OR (D) OF RULE 46A(1) EXISTED. THE APPELLANT HAS NEITHER M ADE ANY APPLICATION UNDER RULE 46A NOR ANY OF THE CIRCUMSTA NCES SPECIFIED AS EXCEPTIONS THEREIN EXIST. IN SUCH A SITUATION, A NY NEW DOCUMENTS OR EVIDENCE CANNOT BE ACCEPTED. 9 . BARE PERUSAL OF THE FINDING RETURNING BY LD.CIT(A ) SHOWS THAT MERELY ON THE BASIS OF THE CONJECTURE AND SURMISES APPLICA TION FOR ADDITIONAL EVIDENCE HAS BEEN DISMISSED BY USING WORDS MANIPUL ATION IN THE DOCUMENTS WITHOUT VERIFYING THE DOCUMENTS FROM THE LESSOR OR ATTESTING WITNESSING AS THE CASE MAY BE. THE LD. CIT(A) STAT ED TO HAVE TAKEN NOTE OF THE FACT THAT DURING THE ASSESSMENT PROCEEDINGS LEASE DEED WERE HAVING SIGNATURE OF LESSOR ONLY BUT THE DOCUMENTS P RODUCED BEFORE LD. CIT(A) DURING THE APPELLATE PROCEEDINGS WERE HAVING SIGNATURE OF BOTH LESSOR AND LESSEE. WHEN THE ASSESSEE HAS COME UP WI TH SPECIFIC DOCUMENT WHICH LEASE DEED TO PROVE HIS AGRICULTURAL INCOME, THE SAME CANNOT BE THROWN INTO THE DUSTBIN, MERELY ON THE BA SIS OF SURMISES. 10. FURTHERMORE, ASSESSEE IN ORDER TO PROVE THE UNSECU RED LOANS STATED TO BE TAKEN FROM FRIENDS AND RELATIVES BROUGHT ON R ECORD THAT COMPLETE DETAILS/CONFIRMATIONS FROM THE LOANEE BUT CONTENTIO N HAS BEEN REJECTED MERELY ON THE GROUND THAT THERE WAS ENOUGH FUNDS AV AILABLE WITH THE 7 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI. ASSESSEE AS REFLECTED IN THE BALANCE SHEET, THERE I S NO NEED FOR THE ASSESSEE TO TAKE PETTY LOANS FROM THE PERSON AND TH AT THE ASSESSEE IS CONCEIVING THE DEPARTMENT. THIS FACT ALSO GOES TO P ROVE THAT ISSUE HAS BEEN DECIDED ON SURMISES WITHOUT GOING INTO THE MER ITS OF THE CASE. 11 . EVEN PERUSAL OF THE PARA 5 OF THE ASSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER PROCEEDED TO CONCLUDE THAT ASSESS EE HAS NOT CLAIMED ANY SET OFF LOSS DURING THE YEAR BUT THIS FACT IS I N CONTRADICTION WITH THE COMPUTATION OF THE INCOME BROUGHT ON RECORD BY THE ASSESSEE LYING AT PAGE 1 TO 4 OF THE PAPER BOOK. SO, THIS FACT IS AL SO REQUIRED TO BE RE- ADJUDICATED BY THE AO, THE FINDINGS BEING BASED ON WRONG FACTS. 12 . FURTHERMORE, ADDITION OF RS. 13,63,576/- HAS BEEN MADE BY THE AO ON THE GROUND THAT ASSESSEE HAS NOT FILED FRESH CON FIRMATION FROM M/S SMC GLOBAL SECURITIES SYSTEMS. HOWEVER, THIS FACT HAS BEEN CLARIFIED BY THE ASSESSEE TO THE AO BY CLAIMING THAT THE ASSESSE E HAS INADVERTENTLY SHOWN THE PAYABLE AMOUNT IN RESPECT OF 9 OTHER PART IES IN THE NAME OF M/S SMC GLOBAL SECURITIES SYSTEMS RATHER THE CORREC T AMOUNT PERTAINING TO M/S SMC SECURITIES SYSTEMS IS RS. 4,95,569/-. 13. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE ARE O F THE CONSIDERED VIEW THAT ASSESSMENT ORDERS AS WELL AS IMPUGNED ORD ERS PASSED BY LD. 8 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI. CIT(A) HAS BEEN PASSED BY RELYING UPON INCORRECT FA CTS AS WELL AS NOT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE, SO WE REMAND THE PRESENT CASE TO THE AO TO DECIDE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE, APPEAL FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/6/2018 SD/- SD/- (N.K SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22.06.2018 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 9 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI. DATE OF DICTATION 20/6/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/6/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 21/6/2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 22/6/2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 22/6/2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 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 10 ITA NO.-3477/DEL/2014. MONIKA ROHRA , DELHI.