ITO, New Delhi V. Mrs P.L. Anand, New Delhi

ITA 3760/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97542 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 29-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 20-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH KUMAR KEDIA
• Keywords: Opportunity of being heard; Validity of assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI R.S. SYAL, AM & MS. SUCHITRA KAMBLE, JM ITA NO.3760/DEL/2012 ASSESSMENT YEAR : 2005-06 ITO, WARD 48 (1), NEW DELHI. VS. MRS. P.L. ANAND, C-97, ANAND NIKETAN, NEW DELHI. PAN: ADRPA4245M (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SHRI RAJESH KUMAR KEDIA, SR.DR DATE OF HEARING : 29.09.2015 DATE OF PRONOUNCEMENT: 30.09.2015 ORDER PER R.S. SYAL, AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 11.5.2012 IN RELATION TO THE ASSESSMENT Y EAR 2005-06. 2. THE ONLY ISSUE RAISED IN THIS APPEAL THROUGH THREE GROUNDS IS AGAINST THE DELETION OF ADDITION OF RS.9,60,040/- MADE BY THE A SSESSING OFFICER (AO) ON ACCOUNT OF UNEXPLAINED/UNDISCLOSED INCOME. ITA NO.3760/DEL/2012 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE RECEIVED TWO CHEQUES, BOTH DATED 25.10.2004, AMOUNTING TO RS.6,6 6,000/- AND RS.2,94,040/-, WHICH WERE DEPOSITED IN HER BANK ACC OUNT, AGAINST WHICH A DEMAND DRAFT DATED 29.11.2004 WAS ISSUED IN FAVOUR OF SHRI T.R. ANAND, THE ASSESSEES HUSBAND. ON BEING CALLED UPON TO TE NDER CONFIRMATION IN RESPECT OF THE SOURCE OF CHEQUES DEPOSITED, THE ASS ESSEE SUBMITTED A CONFIRMATION FROM SHRI T.R. ANAND, STATING THAT THE CHEQUES WERE RECEIVED BY HIS WIFE AGAINST CANCELLATION OF THE BOOKING OF SOME FLAT. ONCE AGAIN, THE ASSESSEE WAS REQUIRED TO SUBMIT DOCUMENTARY EVI DENCE IN SUPPORT OF THE SOURCE OF THESE TWO CHEQUES. THE ASSESSEES HUSBAN D SUBMITTED AN AFFIDAVIT DATED 14.12.2007 THAT HE ALONG WITH HIS WIFE BOOKED A FLAT WITH SHRI Y.P. BHATIA (NRI) AT JANAK PURI AND PAID RS.9 LAC. IT WA S SUBMITTED THAT THE BOOKING OF FLAT WAS CANCELLED AND A SUM OF RS.9 LAC WAS REFUNDED BY MEANS OF CHEQUES IN THE NAME OF THE ASSESSEE. IT WAS CLA IMED TO BE THIS AMOUNT, WHICH WAS DEPOSITED IN HER BANK ACCOUNT. ONCE AGAIN , THE AO REQUIRED THE ASSESSEE TO SUBMIT DOCUMENTARY EVIDENCE IN SUPPORT OF THE SOURCE OF CHEQUES. NEITHER ANY REPLY WAS GIVEN NOR ANY ADJOU RNMENT WAS SOUGHT. RESULTANTLY, THE AO MADE ADDITION OF RS.9,60,040/- BY TREATING IT AS INCOME FROM UNEXPLAINED/UNDISCLOSED SOURCES. WHEN THE MATT ER CAME UP BEFORE THE ITA NO.3760/DEL/2012 3 LD. CIT(A), THE ASSESSEE CHALLENGED THE ISSUE OF NO TICE U/S 143(2) AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE MONTH IN WHI CH THE RETURN WAS FILED. THIS CONTENTION OF THE ASSESSEE WAS REJECTED BY THE LD. CIT(A) AFTER OBTAINING A REMAND REPORT FROM THE AO. ON MERITS, THE ASSESSEE SUBMITTED THAT TWO PAY ORDERS FOR RS.6,66,000/- AND RS.2,94,0 40/- WERE RECEIVED ON 15.10.2004 FROM SMT. RITU SINGH, W/O SHRI ASHOK KUM AR SINGH, RESIDENT OF 1195, SECTOR 37, FARIDABAD, TOWARDS THE SALE CON SIDERATION OF FLAT NO.B- 1/A/47A, JANAK PURI, NEW DELHI, WHICH WERE DEPOSITE D IN THE ASSESSEES BANK ACCOUNT. THE LD. CIT(A) GOT CONVINCED WITH TH E ASSESSEES SUBMISSIONS AND DELETED THE ADDITION. THE REVENUE IS AGGRIEVED AGAINST THE DELETION OF ADDITION. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSESSE E DESPITE NOTICE. AS SUCH, WE ARE PROCEEDING TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE. 5. IT IS OBSERVED THAT THE ASSESSEE TOOK A STAND BE FORE THE AO THAT TWO CHEQUES TOTALING RS.9,60,040/- WERE RECEIVED TOWARD S REFUND OF AMOUNT OF CANCELLATION OF FLAT BOOKED WITH SHRI Y.P. BHATIA ( NRI) AT JANAK PURI. WHEN THE AO REQUIRED THE ASSESSEE TO SUBSTANTIATE T HIS ARGUMENT AND ITA NO.3760/DEL/2012 4 FURNISH EVIDENCE IN SUPPORT OF THE RECEIPT OF AMOUN T, THERE WAS NO COMPLIANCE. HOWEVER, DURING THE COURSE OF THE FIRS T APPELLATE PROCEEDINGS, AN ALTOGETHER DIFFERENT STAND WAS TAKEN THAT THIS A MOUNT OF RS.9,60,040/- WAS RECEIVED AS SALE CONSIDERATION FOR SALE OF PROP ERTY LOCATED AT SECTOR 37, FARIDABAD. THE LD. CIT(A) APPEARS TO HAVE BEEN SWA YED BY THE SUBMISSIONS MADE BEFORE HIM IN DISREGARD TO THE ARG UMENTS ADVANCED AT THE STAGE OF ASSESSMENT. EVEN THOUGH HE CALLED FOR A RE MAND REPORT FROM THE AO QUA THE VALIDITY OF ASSESSMENT, WHICH CONTENTION WAS R EJECTED BY HIM, BUT, THERE IS NO REFERENCE TO THE COMMENTS OF THE A O ON A NEW STAND TAKEN BEFORE HIM. IN OUR CONSIDERED OPINION, THE VIEW TAK EN BY THE LD. CIT(A) IS EX FACIE UNSUSTAINABLE BECAUSE OF THE APPARENT CONFLICT IN T HE VIEW CANVASSED BY THE ASSESSEE BEFORE THE AO AND THE LD. CIT(A). HERE, WE WANT TO MAKE A MENTION THAT THE ASSESSEE CONTENDED BEFORE THE LD. CIT(A) THAT A PHOTOCOPY OF SUCH SALE AGREEMENT WAS FILED W ITH THE AO. WE DO NOT FIND ANY DISCUSSION ABOUT THIS ASPECT IN THE ASSESS MENT ORDER. UNDER SUCH CIRCUMSTANCES, WE SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF THE AO FOR DECIDING THIS ISSUE AFRESH, AFTE R ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD. ITA NO.3760/DEL/2012 5 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 3 0 TH SEPTEMBER, 2015. SD/- SD/- (SUCHITRA KAMBLE) (R.S. SYA L) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH SEPTEMBER, 2015. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI