Narender Singh Chandila, Faridabad V. ITO ward-2(1), Faridabad

ITA 3685/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9234 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 26-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Keywords: Presumptive income; Opportunity of being heard; Set aside
• Section: 142(1); 143(1); 69A

Judgement Text

ITA NO.3685/DEL/2019 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-I, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO. 3685/DEL/2019 A.Y. : 2015-16 NARENDER SINGH CHANDILA, H.NO. 10, SECTOR 21-B, VILLAGE FATEHPUR CHANDILA, FARIDABAD HARYANA (PAN: AGFPC9652H) VS. ITO, WARD 2(1), FARIDABAD, HARYANA (APPELLANT) (RESPONDENT) ORDER PER H.S. SIDHU, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 27.2.2019 PASSED BY THE LD. CIT(A), FARIDABAD IN RELATION TO ASSESSMENT YEAR 2015-16 ON THE FOLLOWING GROUNDS:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AS MUCH AS IN FACT IN DISMISSING THE APPEAL FILED BY THE APPELLANT EX-PARTE QUA THE APPELLANT AS NOTICE DATED 01-02-2019 ISSUED FOR HEARING ON 13-02- 2019 WAS NEVER SERVED UPON THE ASSESSEE. ASSESSEE BY SH. I.P. BANSAL, ADV. DEPARTMENT BY SH. PRAKASH DUBEY, SR. DR. ITA NO.3685/DEL/2019 2 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD. CIT(A) HAS ERRED IN LAW AS MUCH AS IN FACT IN UPHOLDING THE ADDITION MADE BY THE AO OF A SUM OF RS. 42,21,319/- ALLEGEDLY BEING UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNTS OF THE ASSESSEE. WHILE UPHOLDING SUCH ADDITION HE HAS FAILED TO APPRECIATE:- A) THAT THE ASSESSEE HAD FURNISHED EXPLANATION BEFORE THE AO WHICH HAS BEEN RECORDED IN THE ASSESSMENT ORDER THAT, THE CASH AMOUNT DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE WAS RELATING TO AMOUNT RECEIVED AS BOOKING AMOUNT FROM DIFFERENT COSTUMERS FOR BOOKING OF PLOTS IN NEHARPUR, FARIDABAD AND ALSO THAT THE AMOUNT WAS REFUNDED TO SUCH COSTUMERS WHERE THE DEAL WAS NOT MATURED AND GIVING THE LIST OF NAMES OF PERSONS FROM WHOM SUCH BOOKING AMOUNT WAS RECEIVED COUPLED WITH THE PLOT NO. ; TOTAL AMOUNT RECEIVED AND REFUNDED AMOUNT. COMPLETE DETAILS OF AMOUNT RECEIVED FOR A SUM OF RS. 53,05,000/- AND AMOUNT REPAID AMOUNTING TO RS. 46,00,674/- WAS GIVEN. THE AO WITHOUT EXAMINING THOSE DETAILS MADE THE ADDITION WHICH WAS REQUIRED TO BE DELETED BY LD. CIT(A). B) THAT LD. CIT(A) HAS ALSO FAILED TO APPRECIATE THAT ASSESSEE HAD STARTED THE BUSINESS OF EARNING COMMISSION FROM BOOKING OF PLOTS ETC. AND IN THAT PROCESS SUCH AMOUNT WAS RECEIVED AND REPAID AND THESE WERE USUAL BUSINESS TRANSACTIONS OF THE ASSESSEE OUT OF WHICH COMMISSION EARNED WAS SUBJECTED TO INCOME TAX IN THE RETURNED FILED BY THE ASSESSEE. C) THAT LD. CIT(A) HAS ALSO FAILED TO APPRECIATE THAT WITHOUT MAKING ANY INQUIRY INTO THE DETAILS SUBMITTED BY THE ASSESSE WITH REGARD TO THE NAME OF THE PERSONS AND DETAILS REGARDING PLOT NO. ETC., WHICH ARE SUPPORTED BY ORIGINAL ITA NO.3685/DEL/2019 3 REFUND AMOUNT RECEIPT BOOK; MAP OF LAND FROM WHICH THE PLOTS WERE BOOKED; ORIGINAL STAMP- PAPER OF PLOT BOOKING AND CANCELATION; REFUND OF ADVANCE MONEY RECEIPTS AND SUCH EVIDENCE WAS COMPLETELY IGNORED BY THE AO. THESE FACTS ARE MENTIONED IN THE GROUND OF APPEAL FILED BEFORE CIT(A). THEREFORE, ALSO THE ORDER PASSED BY LD. CIT(A) IS LIABLE TO BE SET ASIDE. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE LD. AO HAS ERRED IN LAW AS MUCH AS IN FACT IN INITIATING THE PROCEEDINGS FOR LEVY OF PENALTY U/S 27ID. THE INITIATION BEING BAD IN LAW SHOULD BE SET ASIDE. 4. THAT EACH OF THE ABOVE GROUND IS INDEPENDENT AND IS WITHOUT PREJUDICE TO THE OTHER GROUNDS OF APPEAL PREFERRED BY THE APPELLANT. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, VARY, OMIT, SUBSTITUTE OR AMEND THE ABOVE GROUNDS OF APPEAL, AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 6. THAT THE LEVY OF INTEREST U/S 234A, 234B, 234C, 234D IS INVALID ON THE GROUND THAT THE SAME IS LEVIED BY WAY OF AN ORDER WHICH IS INVALID IN THE EYES OF LAW. 2. THE BRIEF FACTS RELATING TO THE CASE ARE THAT TH E ASSESSEE HAS FILED HIS RETURN OF INCOME OF RS. 6,45,190/- ON 07.11.2016 AND THE SAME WAS PROCESSED U/S. 143(1) OF THE INCOM E TAX ACT, 1961 (IN SHORT ACT) BY CPC AS SUCH. SUBSEQUEN TLY, THE CASE WAS SELECTED FOR LIMITED SCRUTINY THROUGH COMP UTER AIDED SCRUTINY SELECTION (CASS) TO EXAMINE WITH REASON L ARGE DEPOSITS IN SAVINGS BANK ACCOUNTS (AIR 001, TOTAL TURNOVER AND OTHER INCOME IN PART A-P & L OF ITR). NOTICE U/S. 1 43(2) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 03.08.2017, WHICH WAS DULY ITA NO.3685/DEL/2019 4 SERVED UPON THE ASSESSEE. THEREAFTER NOTICE U/S. 14 2(1) OF THE ACT WAS ISSUED ON 04.9.2017 TO THE ASSESSEE FOR 19.9.2 017 REQUIRING TO FURNISH THE RELEVANT INFORMATION AND D ETAILS. NONE APPEARED IN RESPONSE TO THIS NOTICE. THEREAFTER, TH E AO ALSO ISSUED NOTICE U/S. 142(1) OF THE ACT TO THE ASSESSE E ON 03.11.2017 ALONGWITH LETTER OF SHOW CAUSE ISSUED TO T HE ASSESSEE FIXING THE CASE FOR 13.11.2017. ASSESSEE D ID NOT APPEARED. ON CHANGE OF INCUMBENT THE PROCEEDINGS HA S BEEN CONTINUED FROM THE STAGE AT WHICH THE PROCEEDING WA S LEFT, AS PER PROVISION OF SECTION 129 OF THE INCOME TAX ACT, 1961 AND NOTICE U/S. 142(1) OF THE ACT WAS ISSUED TO THE ASS ESSEE ON 20.11.2017 FOR 04.12.2017 REQUIRING THE ASSESSEE TO FUR NISH THE DETAILS ALREADY CALLED FOR. IN RESPONSE TO THE SAME, THE AR OF THE ASSESSEE APPEARED AND ATTENDED THE PROCEEDIN GS FROM TIME TO TIME AND SUBMIT VARIOUS DETAILS AS REQUIRED BY THE AO ALONGWITH THE WRITTEN SUBMISSIONS OF THE ASSESSEEE ON THE ISSUE IN DISPUTE. AFTER CONSIDERING ALL THE DOCUMEN TARY EVIDENCES FILED BY THE ASSESSEE, THE AO WAS OF THE V IEW THAT THE ASSESSEE IS A PROPERTY DEALER AND RECEIVED BOOK ING AMOUNT FROM DIFFERENT CUSTOMERS FOR BOOKING OF PLOTS. ASSES SEE HAS ALSO FURNISHED LIST OF PERSONS FROM WHICH THE AMOUN T OF BOOKING WAS RECEIVED. AFTER EXAMINING ALL THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE ALONGWITH THE WRITTEN SUBMISS IONS, THE AO WAS OF THE VIEW THAT AS PER INDIVIDUAL TRANSACTIONS STATEMENTS FOR THE FINANCIAL YEAR 2014-15 RELEVANT TO ASSESSME NT YEAR 2015-16, THE ASSESSEE DEPOSITED CASH OF RS. 83,16,32 9/- IN HIS DIFFERENT BANK ACCOUNTS WHICH INCLUDE RS. 47,55 ,329/- IN ITA NO.3685/DEL/2019 5 BANK ACCOUNT MAINTAINED WITH PUNJAB NATIONAL BANK, RS. 19,01,700/- IN BANK ACCOUNT MAINTAINED WITH HDFC BANK AND RS. 16,59,300/- WITH BANK ACCOUNT MAINTAINED WITH ICICI BANK AND ALSO AXIS BANK. THE BANK ACCOUNTS STATEME NTS OF THE ASSESSEE WAS ANALYSED BY THE AO AND FINALLY THE AO WAS OF THE VIEW THAT IN THE ABSENCE OF THE EXPLANATION REGARDI NG THE SOURCE OF CASH DEPOSITS BY THE ASSESEE WITH SUPPORT ING OF DOCUMENTARY EVIDENCES, THE ENTIRE UNEXPLAINED CASH AMOUNTING TO RS. 42,21,319/- (8316319-4035000) DEPO SITED SHOULD BE ASSESSED AS INCOME OF THE ASSESSEE FOR TH E ASSESSMENT YEAR 2015-16 FROM UNDISCLOSED SOURCES AN D ADDED THE SAME TO THE RETURNED INCOME OF THE ASSESSEE MEA NING THEREBY, THE AO MADE THE ADDITION OF RS. 42,21,319/- AND COMPLETED THE ASSESSMENT AT RS. 48,66,510/- U/S. 143(3 ) OF THE ACT VIDE ORDER DATED 26.12.2017. AGAINST THE AS SESSMENT ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 27.2.2019 AND DISMISSED THE APPE AL OF THE ASSESSEE BY CONFIRMING THE ADDITION OF RS. 42,21 ,319/- U/S. 69A OF THE ACT. AGGRIEVED WITH THE IMPUGNED OR DER DATED 27.2.2019, ASSSESSEE IS IN APPEAL BEFORE THE TRIBUNAL . 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESS EE STATED THAT IN RESPONSE TO THE VARIOUS NOTICES ISSUED BY T HE AO, THE ASSESSEE HAS FILED ALL THE EVIDENCES FOR SUBSTANTIA TING HIS CLAIM WHICH WAS NOT PROPERLY APPRECIATED BY THE AO. SIM ILARLY, LD. CIT(A) HAS ALSO NOT GONE THROUGH THE EVIDENCES FILE D BY THE ASSESSEE AND WRONGLY DISMISSED THE APPEAL FILED BY THE ASSESSEE. LD. COUNSEL FOR THE ASSESSEE FURTHER STATE D THAT ITA NO.3685/DEL/2019 6 ASSESEE IS A PROPERTY DEALER AND HAS BEEN ASSESSED THE INCOME OF THE ASSESSEE EARNED FROM DEALING IN PROPE RTY ON PRESUMPTIVE BASIS AS WRITTEN BY THE AO IN PARA NO. 5 OF THE ASSESSMENT ORDER. THE AO RAISED THE QUERY OF BANK D EPOSITS AMOUNTING TO RS. 83,16,329/- BUT AFTER EXAMINING THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE HE MADE ONLY THE ADDITION OF RS. 42,21,319/- IGNORING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND EVIDENCES FIL ED BY THE ASSESSEE. SIMILARLY, THE LD. CIT(A) HAS ALSO WRONGL Y UPHELD THE ASSESSMENT ORDER BY DISMISSING THE APPEAL FILED BY THE ASSESSEE. LD. COUNSEL FOR THE ASSESSEE FINALLY STA TED THAT THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT (A) IS UNWARRANTED IN LAW BECAUSE THE DETAILS OF THE BUSIN ESS TRANSACTION WHICH WAS ACCEPTED BY THE AO AND THE AP PLICABILITY OF PRESUMPTIVE TAXATION HAS ALSO BEEN ADMITTED BY B OTH THE AUTHORITIES BELOW. EVEN OTHERWISE, ALL THE DOCUMENT S SUBSTANTIATING THE CLAIM OF THE ASSESSEE HAS BEEN F ILED, HENCE, THE ADDITION IN DISPUTE MAY BE DELETED. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS PASS ED BY THE LD. CIT(A) AND STATED THAT ASSESSEE REMAINED UN ATTENDED BEFORE THE REVENUE AUTHORITIES AND THE ORDER PASSED BY BOTH THE AUTHORITIES ARE LEGAL AS PER LAW AND ON THE BAS IS OF THE EVIDENCES PRODUCED BY THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORD ERS OF THE REVENUE AUTHORITIES BELOW. I AM OF THE VIEW T HAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE REVENU E ITA NO.3685/DEL/2019 7 AUTHORITIES AND HENCE, NOT DESERVE FOR ANY RELIEF FR OM THIS BENCH. BUT ANYHOW, IT WOULD BE IN THE INTEREST OF JUS TICE, IF THE ISSUES IN DISPUTE BE SET ASIDE TO THE FILE OF THE L D. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, AS PER LA W, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME, AFRESH AS PER LAW, AFTER GIVING ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DI RECTED TO FULLY COOPERATE WITH THE LD. CIT(A) IN THE PROCEEDI NGS FOR THE SPEEDY DISPOSAL OF THE MATTER AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT, OTHERWISE, THE LD. CIT(A) I S AT LIBERTY TO DECIDE THE ISSUES IN DISPUTE IN ACCORDAN CE WITH LAW. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FO R STATISTICAL PURPOSES. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 07.01.2021. SD/- (H.S. SIDHU) JUDICIAL MEMBER SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI ITA NO.3685/DEL/2019 8