Manish Mittal, Delhi V. ITO, New Delhi

ITA 3691/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6921 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 24-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 21-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 3691/DEL/2016 ASSESSMENT YEAR: 2011-12 SH. MANISH MITTAL, VS. ITO, WARD 20(1), 85, PREM NAGAR (SHAKTI NAGAR) NEW DELHI DELHI 110 007 (PAN: BANPM9877R) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. VIKAS GOYAL, CA REVENUE BY : SH. ANIL SHARMA, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 23.3.2016 PASSED BY THE LD. CIT(A)-32, NEW DELHI RE LATING TO ASSESSMENT YEAR 2011-12 ON THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED ITO MADE ADDITION OF RS.5,42,29 8/- BY CONSIDERING INCOME ON TOTAL DEPOSIT OF RS. 63,41,22 4/-. HE TOOK TOTAL DEPOSIT AS TURNOVER OF THE BUSINESS. THE CIT (A) ENHANCED THE DEPOSIT FIGURE TO RS. 74,45,611/- AND BY APPLYING 8% RATE ON THIS FIGURE OF RS. 74,L45,611/- ENHANCED THE INCOME BY RS. 96,351/-. THE CIT (A) DI D NOT ISSUE ANY SHOW CAUSE NOTICE BEFORE MAKING ENHANCEME NT AS MENTIONED IN HIS APPEAL ORDER ON PAGE NO. 9 FOR APPEARING ON 10.02.2016 WHEREAS A SEPARATE NOTICE H AS BEEN ISSUED FOR APPEARING ON 10.02.2016. BOTH THE O FFICERS I.E. ITO AS WELL AS CIT HAS NOT DEDUCTED THE FIGURE OF RS. 2,51,2801- WHICH HAS ALREADY BEEN DECLARED BY THE ASSESSEE IN HIS INCOME TAX RETURN. THE ASSESSEE HAS DONE 2 NO OTHER BUSINESS EXCEPT TRADING IN COAL. THE CONFI RMATION OF ADDITION OF RS. 5,42,298/- AND ITS ENHANCEMENT B Y RS. 96,351/- BY THE LEARNED CIT IS TOTALLY WRONG, BAD I N LAW AND NEEDS TO BE QUASHED. 2. THE ORDER OF LEARNED ITO IN MAKING ADDITION OF RS. 35,000/- U/S 69C AND ITS CONFIRMATION BY THE C IT (A) ON ACCOUNT OF UNEXPLAINED EXPENDITURE IS TOTALLY WR ONG, BAD IN LAW AND NEEDS TO BE QUASHED AS THE INCOME HA S ALREADY BEEN ASSESSED AT 8% OF TURNOVER. 3. THAT THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PRE JUDICE TO ONE ANOTHER. 4. THAT THE ASSESSEE PRAYS PERMISSION TO ADD, DELET E OR AMEND ONE OR MORE GROUNDS OF APPEAL. THAT THE ASSESSEE ASSURES UNSTINTED CO-OPERATION IN ALL PROCEEDINGS BEFORE YOUR GOOD SELF. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE COURSE OF HEARING, LD. COUNSEL OF THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING PAGES 1 TO 45 CONTA INING THE WRITTEN SUBMISSIONS FILED BEFORE THE ITAT; STATEMENT OF ICI CI BANK & CANARA BANK; CASH RECEIPT AGAINST SALE; IT-2 AND COMPUTATI ON OF INCOME; LETTER DATED 7.1.2014, DEATH CERTIFICATE, AFFIDAVIT AND PASSPORT; LETTER DATED 11.12.2013, SUBMISSIONS BEFORE THE LD. CIT(A) AND LETTER DATED 26.9.2016 TO CIT(A) AND NOTICE DATED 28.1.2016. HE HAS ALSO VERIFIED THAT THE WRITTEN SUBMISSIONS FILED ABOVE COVERS SUB MISSION BEFORE THE LD. CIT(A) AND CERTIFIED THAT ALL OTHER PAPERS HAV E BEEN FILED BEFORE THE LOWER AUTHORITIES WHICH HAS NOT BEEN CONSIDERED BY THE LOWER 3 AUTHORITIES, HENCE, HE REQUESTED THE ISSUES INVOLVE D IN THE PRESENT APPEAL MAY BE SET ASIDE TO THE FILE OF THE LD. CIT( A) TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE AND RELIED UPON THE ORDERS OF THE A UTHORITIES BELOW. . 5. I HEARD BOTH THE PARTIES AND PERUSED THE RECORDS . I HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE PAPER BOOK CONTAINING 1 TO 45 PAGES HAVING THE COPY OF WRITTEN SUBMISSIONS FILED BEFORE THE ITAT; STATEMENT OF ICICI BANK & CANARA BANK; CASH RECEIPT AGAINST SALE; IT-2 AND COMPUTATION OF INCOME; LETTER DATED 7.1.20 14, DEATH CERTIFICATE, AFFIDAVIT AND PASSPORT; LETTER DATED 1 1.12.2013, SUBMISSIONS BEFORE THE LD. CIT(A) AND LETTER DATED 26.9.2016 TO CIT(A) AND NOTICE DATED 28.1.2016. IN MY VIEW, THE SAID DO CUMENTS NEEDS TO BE EXAMINED AT THE LD. CIT(A) IN ORDER TO DECIDE TH E ISSUES IN DISPUTE WHICH HE HAS NOT CONSIDERED, AS STATED BY THE LD. C OUNSEL OF THE ASSESSEE. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT IN THIS CASE THE ISSUES IN DISPUTE NEEDS TO BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SA ME AFRESH, AS PER LAW. ACCORDINGLY, THE ISSUES IN DISPUTE ARE SET ASIDE AN D RESTORED BACK TO THE FILE OF THE LD. CIT(A) AND THE LD. CIT(A) IS DI RECTED TO CONSIDER THE ISSUES IN DISPUTE AFRESH AFTER GIVING ADEQUATE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, AS REQUESTED BY THE LD. COUNSEL OF THE ASSESSEE, THE ASSESSEE IS DIRECTED THROUGH HIS COUNSEL TO BE PRESENT BEFORE THE LD. CIT(A) ON 28.02.2017 AT 10.00 AM AND FULLY COOPERATE WITH THE LD. CIT(A), AND DID NOT TAKE AN Y UNNECESSARY 4 ADJOURNMENT AND FILE ALL THE NECESSARY PAPERS BEFOR E HIM TO SUBSTANTIATE HIS CASE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/01/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 20/01/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES