Sh. Krishan Kumar Sehrawat, New Delhi V. ITO, New Delhi

ITA 348/DEL/2014

• Counselvise Citation: 34820114 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 23-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 20-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YATENDRA SINGH
• Keywords: Principle of natural justice; Additional evidence
• Section: 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC -2, NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 348/DEL./2014 : A SSTT. YEAR : 2008-09 KRISHAN KUMAR SEHRAWAT C/O. PRA TAXINDIA. D-28, SOUTH EXTENSION, PART-1 NEW DELHI VS ITO WARD 27(3) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. ABBPK9878Q APPELLANT BY : SH. SA LIL AGARWAL, ADV. RESPONDENT BY : SH. YATENDR A SINGH, SR. DR DATE OF HEARING : 23.07.2015 DATE OF PRONOUNCEMENT : 04.09.2015 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 20.12.2013 OF THE LD. CIT(A)-XVIII, NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL :- 1. THAT HAVING REGARD TO THE FACTS AND CIR CUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN REJECTING THE ADDITIONAL EVIDENCES FILED BY THE ASS ESSEE ITA NO.348/DEL/2014 2 UNDER RULE 46A AND THAT TOO WITHOUT ANY BASIS AND W ITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE . 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN AGGREG ATE ADDITION OF RS. 11,00,000/- ON ACCOUNT OF CASH DEPO SITS IN BANK ACCOUNT U/S 68 OF THE ACT AND THAT TOO WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING AND WITHOUT APPRECI ATING THE FACTS AND CIRCUMSTANCES OF THE CASE AND WITHOUT CONSIDERING THE SUBMISSION AND EVIDENCES OF THE ASS ESSEE. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER , ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS. 11,00,000/- ON ACCOUNT OF CASH DEPO SIT IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING DISALLOWA NCE OF RS. 11,410/- (I.E. 20% OF RS. 57,053/-) UNDER THE H EAD TELEPHONE, REPAIR & MAINTENANCE EXPENSES AND CONVEYANCE EXPENSES BY TREATING IT AS PERSONAL IN N ATURE. 5. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER , IMPUGNED ADDITION/DISALLOWANCE AND IMPUGNED ASSESSM ENT ORDER ARE BAD IN LAW, ILLEGAL, UNJUSTIFIED, CONTRAR Y TO FACTS & LAW AND BASED UPON RECORDING OF INCORRECT FACTS A ND FINDING, WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEA RING, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THE SAME DESERVES TO BE QUASHED. 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMST ANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234B AND 234C OF INCOME TAX ACT, 1961. ITA NO.348/DEL/2014 3 7. THAT THE APPELLANT PRAYS FOR LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 3. AT THE FIRST INSTANCE, THE LD. COUNSEL FOR TH E ASSESSEE ARGUED GROUND NO. 1 AND 5 WHICH RELATES TO THE REJECTION O F ADDITIONAL EVIDENCES FILED BY THE ASSESSEE UNDER RULE 46A OF T HE INCOME TAX RULES, 1962. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE A SSESSEE FILED THE RETURN OF INCOME ON 23.7.2008 DECLARING AN INCOME OF RS. 1 ,88,525/-. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE AO FRAM ED THE ASSESSMENT AT AN INCOME OF RS. 12,99,935/- BY MAKING THE ADDIT ION OF RS. 11,00,000/- U/S 68 OF THE IT ACT, 1961 ON ACCOUNT O F CASH DEPOSIT IN THE BANK AND RS. 11,410/- OUT OF EXPENSES ON ESTIMA TE CASES. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATT ER TO THE LD. CIT(A) AND FURNISHED THE WRITTEN SUBMISSION. THE LD. CIT(A ) CONFIRMED THE ADDITION MADE BY THE AO BY OBSERVING THAT THE ASSES SEE WAS ASKED TO FURNISH THE SALE AGREEMENT SO AS TO PROVE THE SO URCE OF DEPOSIT BUT IT WAS NOT PRODUCED, THEREFORE, THE AO WAS CONSTRAI NED TO MAKE THE ADDITION U/S 68 OF THE ACT. HE FURTHER OBSERVED THA T AS PER THE PROVISIONS OF RULE 46A THERE ARE CERTAIN CRITERIA L AID DOWN, SO AS TO ADMIT ADDITIONAL EVIDENCES. BUT THE ASSESSEE HAD FA ILED TO CONVINCE HIM AS TO WHY THOSE DOCUMENTS WERE NOT AVAILABLE WI TH HIM SO AS TO BE PRODUCED BEFORE THE AO. HE THEREFORE, DID NOT A DMIT THE ADDITIONAL EVIDENCES AND CONFIRMED THE ADDITION MAD E BY THE AO. ITA NO.348/DEL/2014 4 NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE NEW EVIDENCES WERE FURNISHED BEFORE THE LD. CIT(A) IN T HE FORM OF SALE AGREEMENT OF THE PROPERTY. THOSE DOCUMENTS WERE NOT IN POSSESSION OF THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDIN GS BECAUSE THOSE WERE FURNISHED TO THE BANKERS AS SECURITY AGAINST T HE LOAN AND THE ASSESSEE WAS ADMITTED IN THE HOSPITAL SINCE HE WAS SUFFERING FROM PARTIAL PARALYSIS, DUE TO ALL THOSE REASONS, THE DO CUMENTS COULD NOT BE FURNISHED IN TIME. HOWEVER, THE SAME WERE FURNISHED TO THE LD. CIT(A) WHO DID NOT ADMIT THOSE DOCUMENTS UNDER RULE 46A OF THE I.T. RULES, 1962. IT WAS FURTHER SUBMITTED THAT TH E ADDITIONAL EVIDENCES, FURNISHED BY THE ASSESSEE GO TO THE ROOT OF MATTER, THEREFORE THE LD. CIT(A) OUGHT TO HAVE ADMITTED THO SE ADDITIONAL EVIDENCES WHILE DECIDING THE APPEAL OF THE ASSESSEE . HE REQUESTED TO RESTORE THIS CASE TO THE FILE OF THE AO. 7. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT SINCE THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF DEPOSITS IN THE BAN K ACCOUNT, THEREFORE, THE ADDITION WAS RIGHTLY MADE BY THE AO AND LD. CIT(A) WAS FULLY JUSTIFIED IN CONFIRMING THE SAME. 8. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE ASSESSEE BEING AD MITTED IN THE ITA NO.348/DEL/2014 5 HOSPITAL DUE TO PARTIAL PARALYSIS, COULD NOT PRODUC E THE RELEVANT DOCUMENTS WHICH WERE FURNISHED TO THE BANK AS A SEC URITY, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SO, THERE WAS A R EASONABLE CAUSE FOR NOT PRODUCING THOSE DOCUMENTS BEFORE THE AO. I AM OF THE VIEW THAT THE LD. CIT(A) OUGHT TO HAVE ADMITTED THE ADD ITIONAL EVIDENCES FURNISHED BY THE ASSESSEE AND THAN ISSUES HAVE BEEN DECIDED ON MERIT, AFTER CONSIDERING THE SUBMISSIONS AND ARGUMENTS OF THE ASSESSEE, BUT HE DID NOT DO SO. 9. IN MY OPINION, THIS CASE DESERVES TO BE SET A SIDE TO THE FILE OF THE AO. ACCORIDNGLY THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS REMITTED BACK TO THE FILE OF THE AO TO BE DECIDED A FRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 04/09/2015). SD/- (N. K. SAINI) ACCOUNT ANT MEMBER DATED: 04/ 09/2015 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ITA NO.348/DEL/2014 6 ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 31.08.2015 2. DRAFT PLACED BEFORE AUTHOR 31.08.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON .9.2015 PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.