Ashok Kumar, Kaithal V. Pr. CIT, Karnal

ITA 367/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3508 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 23-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: PREMIL KUMAR GOYAL
• Section: 143(3); 263

Judgement Text

1 ITA NO. 367/DEL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 367/DEL/2017 ( A.Y 2012-13) ASHOK KUMAR PERMIL GOEL, ADVOCATE, # 234, SECTOR-20, HUDA KAITHAL ADEPK5266D (APPELLANT) VS PR. CIT AAYAKAR BHAWAN, SECTOR-12 KARNAL (RESPONDENT) APPELLANT BY SH. PREMIL KUMAR GOYAL, ADV RESPONDENT BY SMT. APARNA KARAN, CIT(DR) ORDER PER SUCHITRA KAMBLE THIS APPEAL IS FILED AGAINST THE ORDER OF PRINCIPAL COMMISSIONER OF INCOME TAX, KARNAL U/S 263(1) PASSE D ON 22 ND DECEMBER, 2016. 2. THE ASSESSEE IS DOING THE BUSINESS OF TIMBER WOO DS AT KAITHAL & GANDHIDHAM, YAMUNA NAGAR AND DELHI. RETURN OF INC OME FOR THE ASSESSMENT YEAR 2012-13 WAS E-FILED ON 24/09/2012 D ECLARING AN INCOME OF RS.5,34,126/-. THE SAME WAS PROCESSED U/ S 143(1) ON 22 ND AUGUST, 2013. THE CASE WAS SELECTED FOR SCRUTINY. DATE OF HEARING 27.09.2017 DATE OF PRONOUNCEMENT 07.11.2017 2 ITA NO. 367/DEL/2017 SUBSEQUENTLY, A NOTICE U/S 143(2) WAS ISSUED ON 7/8 /2013. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE WAS ASKED TO FURNISH THE NECESSARY DETAILED INFORMATION AS PER QUESTIONNAIRE BEFORE BY THE ASSESSING OFFICER. THE ASSESSEE THROUGH HIS COUNSEL FILED DETAILS. THE SAME WAS PL ACED ON RECORD BEFORE THE ASSESSING OFFICER. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTICED BY THE ASSESSING OFFICER THAT THERE WAS A DEPOSIT OF RS.70 LAKHS ON DIFFERENT DATES AND THE S AME WAS CONFRONTED TO THE ASSESSEE. IT WAS STATED THAT THE ASSESSEE RECEIVED ADDITIONS OF RS.70 LAKHS FROM SHRI VIPUL SHAKTI NRI FROM NRI ACCOUNT. HE WAS A NEAREST FRIEND UNDER RESIDENT OF UKRAIN. THE ASSESSEE FURTHER FILED AN AFFIDAVIT OF HIS FATHER R EGARDING CONFIRMATION IN THE AFFIDAVIT. IT WAS STATED THAT THE ASSESSEE RECEIVED RS. 70 LAKHS FOR PURCHASE OF LAND AT GANDH IDHAM BUT DUE TO DISPUTE BETWEEN THE BROTHERS OF SHRI ASHOK KUMAR , THE DEAL WAS PENDING. THE ASSESSEES COUNSEL FILED COPY OF BANK ACCOUNT, CERTIFICATE FROM HDFC, BANK COPY OF SALE AGREEMENT IN FAVOUR OF SHRI VIPUL SHAKTI AND COPY OF PURCHASE DEED OF LAND SITUATED AT GANDHIDHAM PURCHASE BY SHRI ASHOK KUMAR. IN ASSESSM ENT ADDITION OF RS. 2,50,000 WAS MADE. THE PRINCIPAL C OMMISSIONER OF INCOME TAX, KARNAL VIDE ORDER U/S 263 OF THE INCOME TAX ACT HELD AS UNDER:- THE A.O PASSED THE ORDER WITHOUT MAKING THE EFFOR TS AND WITHOUT MAKING REQUISITE ENQUIRIES OR VERIFICATIONS IN RESP ECT OF UNSECURED LOANS TOTALLY RS. 23,30,460/-. 3 ITA NO. 367/DEL/2017 3. THE LD. AR SUBMITS THAT THE ASSESSMENT IN THIS C ASE WAS COMPLETED U/S 143(3) VIDE ORDER DATED 13/1/2015 WHI CH WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST O F REVENUE. THE SHOW CAUSE NOTICE U/S 163 WAS REGARDING RECEIPT OF 70 LAKHS PLUS ALLEGED FRESH UNSECURED AND SQUARED UP LOANS BUT TH E SAME WAS DULY CONSIDERED BY THE ASSESSING OFFICER AND QUERI ES WERE MADE AT THE TIME OF ASSESSMENT PROCEEDINGS BY THE ASSESSING OFFICER . THE SAID QUERIES WERE ANSWERED/REPLIED BY THE ASSESSEE AND AFTER VERIFICATION AND SATISFACTION OF THE ASSESSING OFFI CER, NO ADDITION WAS MADE AS NO PAYMENT WAS RECEIVED IN CASH BY THE ASSESSEE. THEREFORE, THE CIT CANNOT TAKE AN OPINION FROM THE ASSESSING OFFICERS ORDER, AS THE ASSESSING OFFICERS ORDER I S PROPERLY PASSED. THE LD. AR RELIED UPON THE DECISION OF THE HON'BLE HIGH COURT IN CASE OF PRINCIPAL CIT VS. DELHI AIRPORT METRO EXPRE SS PVT. LTD. (ITA NO. 705/2017 ORDER DATED 5/9/2017) WHEREIN IT IS HE LD THAT FOR THE PURPOSES OF EXERCISING JURISDICTION U/S 263 OF THE ACT. THE CONCLUSION THAT THE ORDER OF THE A.O IS ERRONEOUS A ND PREJUDICIAL TO THE INTEREST OF THE REVENUE HAS TO BE PRECEDED BY S OME MINIMAL ENQUIRY. 4. THE LD. DR RELIED UPON THE ORDER OF THE PRINCIPA L CIT AND SUBMITTED THAT THERE WAS NO CONFIRMATION FILED BY T HE ASSESSEE. THEREFORE, THE ORDER OF THE ASSESSING OFFICER WAS N OT JUST AND PROPER. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE RECORD SHOWN BEFORE THE ASSESSING 4 ITA NO. 367/DEL/2017 OFFICER AS WELL AS BEFORE THE PRINCIPAL CIT. THE R ECORDS SHOWS THAT THE DETAILS OF THE LOANS AS WELL AS THE CONFIRMATIO NS OF THE ACCOUNTS WERE SUBMITTED BEFORE THE ASSESSING OFFICER. THE O RDER UNDER 263 IS MERELY A SECOND OPINION OF THE PRINCIPAL CIT. T HEREFORE, THE SAME CANNOT BE SUSTAINED UNDER THE LAW. IN-FACT, IF THE PRINCIPAL CIT IS OF THE VIEW THAT THE A.O DID NOT UNDERTAKE ANY ENQUIRY IT BECOMES INCUMBENT ON THE PRINCIPAL COMMISSIONER OF INCOME-T AX TO CONDUCT SUCH ENQUIRY. BUT IN THE PRESENT CASE ALL THAT PRI NCIPAL COMMISSIONER OF INCOME TAX HAS DONE IN THE IMPUGNED ORDER IS TO REFER TO THE FACTUAL ASPECTS WHICH WERE ALREADY ADJ UDICATED AND VERIFIED BY THE ASSESSING OFFICER. THERE WAS NO NE W MATERIAL OR THERE WAS NO DEMONSTRATIONS IN THE ORDER U/S 263 OF THE ACT THAT THE ASSESSING OFFICER AS WELL AS THE ASSESSEE HAS N OT PARTICULARLY ADDRESS THE ISSUE RAISED BY THE PRINCIPAL CIT. THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF PRINCIPAL CIT V S. DELHI AIRPORT METRO EXPRESS PVT. LTD. RELIED BY THE LD. AR IS REL EVANT IN THE PRESENT CASE. WE, THEREFORE, RELIED UPON THE ORDER OF THE HIGH COURT AND THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH NOVEMBER, 2017 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 07/11/2017 5 ITA NO. 367/DEL/2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 11/10/2017 PS 2. DRAFT PLACED BEFORE AUTHOR 11/10/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 7.11.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 7 .11.2017 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. 6 ITA NO. 367/DEL/2017