ACIT CC-18, V. Jai Deep Dua,

ITA 3661/DEL/2007

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4097 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 20-04-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 17-08-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHYAMA S BANSIA
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH C DELHI ] BEFORE SHRI C. L. SETHI, JM AND SHRI K. D. RAN JAN, AM I. T. A. NOS. 3661 & 3662 (DEL) OF 2007 ASSESSMENT YEARS : 2002-03 & 2003-04. ASSTT. COMMISSIONER OF INCOME-TAX, SHRI JA I DEEP DUA, C E N T R A L C I R C L E : 18, VS. B 63, OAK WOOD ESTATE, N E W D E L H I. G U R G A O N. PAN / GIR NO. AAA . ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : N O N E; DEPARTMENT BY : MS. SHYAMA S. BANSIA [CIT] D.R. O R D E R. PER K. D. RANJAN, AM : THESE TWO APPEALS BY THE REVENUE FOR ASSESSMENT YE ARS 2002-03 AND 2003-04 ARISE OUT OF SEPARATE ORDERS OF THE LD. CIT (APPEALS)-III, NEW D ELHI. THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF, FOR THE SAKE OF CONVENIENCE, BY THIS COMMON ORDER. BEFORE US WHEN THE CASE CAME UP FOR HEARING, NONE ATTENDED ON BEHALF OF THE ASSESSEE. IN THIS CASE THE CASE WAS ADJOURNED ON THE REQUEST OF THE ASSESSEE ON SEVERAL OCCASIONS . ON THE DATE OF HEARING ON 20 TH APRIL, 2011, NONE ATTENDED ON BEHALF OF THE ASSESSEE NOR WAS ANY APPLICATION FOR ADJOURNMENT WAS MOVED. IN VIEW OF THESE FACTS, THE APPEALS FILED BY THE REVEN UE ARE DECIDED, AFTER HEARING THE LD. CIT DR. 2. THE ONLY ISSUE FOR CONSIDERATION RELATES TO DELE TING THE ADDITION OF RS.66,30,347/- IN ASSESSMENT YEAR 2002-03 AND OF RS.8,58,420/- IN ASS ESSMENT YEAR 2003-04. THE REVENUE HAS TAKEN IDENTICAL GROUND IN BOTH THE YEARS THAT THE L D. CIT (APPEALS) HAS ALLOWED THE RELIEF TO THE ASSESSEE BY ADMITTING ADDITIONAL EVIDENCE IN CONTRA VENTION OF RULE 46-A OF THE INCOME-TAX RULES, 1962. THE GROUNDS OF APPEAL ON BOTH THE AP PEALS WERE REVISED, VIDE LETTER DATED 16/022010, WITH THE REQUEST THAT THE SAME SHOULD BE ACCEPTED. IN GROUND NO. 3 THE CONTENTION OF 2 I. T. A. NOS. 3661 & 3662 (DEL) OF 2007 THE REVENUE IS THAT THE LD. CIT (A) HAS DECIDED THE APPEAL AGAINST THE REVENUE ON THE GROUND THAT THE REMAND REPORT WAS NOT SUBMITTED. THEREFOR E, THE APPEAL HAS BEEN ALLOWED WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD. 3. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT S EARCH AND SEIZURE OPERATION IN DHINGRA GROUP OF CASES WAS CONDUCTED ON 31 ST JULY, 2003. THE ASSESSEE FILED RETURN FOR A.Y. 20 02-03 IN RESPONSE TO NOTICE UNDER SECTION 153-A DECLARING IN COME OF RS.1,23,810/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT THE ASSESS EE HAD DECLARED TOTAL EXPORT SALES OF RS.72,17,223/- AND EXPORT BENEFITS OF RS.3,76,782/- FROM M/S. APEX CLOTHING HOUSE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO FOUND THAT THE PURCHASES MADE FROM PREM DYNITES AMOUNTING TO RS.19,43,559/- WERE BOGUS. THE ASSESS MENT WAS COMPLETED BY THE AO BY HOLDING THAT THE ASSESSEE HAS NOT MADE ACTUAL EXPORTS, BUT THE MONEY RECEIVED IN CONVERTIBLE FOREIGN EXCHANGE AGAINST ALLEGED EXPORT WAS ONLY HAWALA AMO UNT BROUGHT INTO INDIA IN THE GARB OF EXPORTS. THE AO ACCORDINGLY COMPLETED THE ASSESSME NT DENYING THE BENEFIT OF SECTION 80-HHC OF THE ACT. 3.1 SIMILARLY IN ASSESSMENT YEAR 2003-04 THE ASSESS ING OFFICER TREATED THE ALLEGED EXPORT RECEIPTS OF RS.7,18,730/- THROUGH HAWALA ENTRY. HE DENIED THE BENEFIT OF SECTION 80-HHC OF THE ACT CLAIMED BY THE ASSESSEE. 4. ON APPEAL THE LD. CIT (APPEALS) SENT COPY OF SUB MISSIONS MADE BY THE ASSESSEE TO THE ASSESSING OFFICER IN BOTH THE YEARS FOR EXAMINATION . SINCE THE ENTIRE EXPORTS SHOWN BY THE ASSESSEE WAS HELD AS BOGUS, THE ASSESSING OFFICER W AS DIRECTED TO MAKE NECESSARY ENQUIRIES FROM CUSTOM AUTHORITIES REGARDING GENUINENESS OF EXPORTS . SINCE THE ASSESSING OFFICER HAD NOT SUBMITTED THE REPORT AFTER MAKING ENQUIRIES, THE LD . CIT (A) DISPOSED OF THE APPEAL FOR BOTH THE YEARS ON THE BASIS OF REPLIES SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE IN BOTH THE YEARS. 3 I. T. A. NOS. 3661 & 3662 (DEL) OF 2007 5. WE HAVE HEARD THE LD. CIT(DR). AS SEEN FROM THE GROUNDS OF APPEAL AND ALSO THE FACTS STATED ABOVE, THE LD. CIT (A) HAS SOUGHT REMAND REP ORT FROM THE ASSESSING OFFICER. THE LD. CIT (A) HAS DISPOSED OF BOTH THE APPEALS AS THE ASSESSI NG OFFICER HAD FAILED TO SEND THE REMAND REPORTS. THUS LD. CIT(A) HAS DISPOSED OF THE APPEAL S WITHOUT PROVIDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICE. LD. CIT(A) SHO ULD HAVE WAITED FOR THE REPORT FROM THE ASSESSING OFFICER. THEREFORE, IN OUR CONSIDERED OPI NION, THE APPEALS SHOULD BE SET ASIDE TO THE FILE OF THE LD. CIT (APPEALS) WITH THE DIRECTIONS TO PRO VIDE THE AO SUFFICIENT TIME TO CONDUCT INQUIRIES AND SUBMIT HIS REPORT IN THE MATTER. LD C IT WILL DECIDE THE APPEAL ON MERITS AFTER CONSIDERING REPORT OF THE ASSESSING OFFICER. 6. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED, FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 29 TH APRIL, 2011. SD/- SD/- [ C. L. SETHI ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29 TH APRIL, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.