ITO, New Delhi V. SH. Trilochan Singh Gandhoak, New Delhi

ITA 3796/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6577 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 08-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Unexplained investment; Opportunity of being heard; Additional evidence

Judgement Text

ITA NO.3796/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. NO. 3796 /DEL/201 3 A.Y. : 20 0 9 - 10 INCOME TAX OFFICER, WARD 33(3), ROOM NO. 1609, 16 TH FLOOR, E-2 BLOCK, DR. SP MUKHERJEE CIVIC CENTRE, NEW DELHI VS. SH. TRILOCHAN SINGH GANDHOAK, PROP. M/S AMAN EXPORT, 5/4, EAST PATEL NAGAR, NEW DELHI 110 008 (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : S MT. SULEKHA VERMA, CIT(DR) ASSESSEE BY : SH. KVSR KRISHNA, CA DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 08 0808 08- -- -02 0202 02- -- -201 201 201 2016 66 6 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 01 0101 01- -- -03 0303 03- -- -201 201 201 2016 66 6 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXVI, NEW DELH I DATED 22.3.2013 PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOW ING GROUNDS:- 1. THE CIT(A) HAS ERRED IN ADMITTING ADDITIONAL EV IDENCE UNDER RULE 46A ALTHOUGH CONDITIONS LAID DOWN IN RULE 46A FOR ADMISSION OF ADDITIONAL EVIDENCE ARE NOT SATISFIED. ITA NO.3796/DEL/2013 2 2. THE CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 76,85,270/- ON ACCOUNT OF UNEXPLAINED SECURED LOAN. 3. THE CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 1,82,27,282/- ON ACCOUNT OF UNEXPLAINED SUNDRY CRED ITORS. 4. THE CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 6,52,99,568/- ON ACCOUNT OF UNVERIFIED PURCHASES. 5. THE CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 33,78,740/- ON ACCOUNT OF UNEXPLAINED EXPENSES. 6(A). THE CIT(A) HAS ERRED IN DELETING THE ENTIRE ADDITION OF RS. 58,50,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT. (B) THE CIT(A) HAS ERRED IN GIVING BENEFIT OF RS. 3 ,50,000/- ON ACCOUNT OF STAMP DUTY PAYMENT WITHOUT APPRECIATING THAT THERE IS NO EVIDENCE AVAILABLE ON RECORD FOR PAYMEN T FROM BOOKS OF ACCOUNTS. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURS E OF THE HEARING OF THE APPEAL. ITA NO.3796/DEL/2013 3 2. THE FACTS NARRATED BY REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, SMT. SULEKHA VERMA, LD.C IT(DR) STATED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ADMITTED T HE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE INCOME TAX ACT, 1962. SHE A LSO DRAW OUR ATTENTION TOWARDS THE IMPUGNED ORDER VIDE PARA NO. 5 TO 5.3 A ND STATED THAT LD. CIT(A) HAS NOT PASSED ANY ORDER ON THE APPLICATION GIVEN B Y THE ASSESSEE UNDER RULE 46A. THEREFORE, SHE REQUESTED THAT THE IMPUG NED ORDER MAY BE CANCELLED ON THIS GROUND ONLY. NO ARGUMENTS HAS BEEN ADVANCED BY HER ON MERITS. 4. ON THE CONTRARY, LD. COUNSEL OF THE ASSESSEE STA TED THAT LD. CIT(A) HAS GIVEN SUFFICIENT OPPORTUNITY TO THE AO BEFORE PASSI NG THE ORDER AND BEFORE ADMITTING THE ADDITIONAL EVIDENCE FILED BY THE ASS ESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. ON THE ISSUE INVOLVED IN GROUND NO. 1 REGARDING ADMISSION OF ADD ITIONAL EVIDENCE UNDER RULE 46A, WE HAVE THOROUGHLY GONE THROUGH THE ORDER PASS ED BY THE AO AS WELL AS IMPUGNED ORDER PASSED BY THE LD. CIT(A) ESPECIALLY THE PARA NO. 5 TO 5.3 IN WHICH THE LD. CIT(A) HAS DISCUSSED ON THE APPLICATI ON FILED BY THE ASSESSEE UNDER RULE 46A. NO DOUBT THAT LD. CIT(A) HAS CALLED FOR THE REMAND REPORT FROM THE AO AND HAS ALSO GIVEN OPPORTUNITY TO THE ASSESSEE FOR THE REBUTTAL ON THE REMAND REPORT, BUT THE LD. CIT(A) HAS NOT PASSED AN Y ORDER FOR ADMISSION OF ITA NO.3796/DEL/2013 4 ADDITIONAL EVIDENCE AND DELETED THE ADDITION ON THE BASIS OF ADDITIONAL EVIDENCE WHICH IS CONTRARY TO THE CONDITIONS LAID DOWN IN RU LE 46A. THEREFORE, THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EYES OF LA W. IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUE INVOLVED IN GROUND NO. 1 TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO THOROUGHLY EXAMINE THE ADDITI ONAL EVIDENCE FILED BY THE ASSESSEE AND DECIDE THE ISSUE IN DISPUTE AFRESH, UN DER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01/3/2016. SD/- SD/- [ [[ [L.P. SAHU L.P. SAHU L.P. SAHU L.P. SAHU] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 01/3/2016 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES