Prabhu Dayal, New Delhi V. ITO WARD - 45(1), New Delhi

ITA 381/DEL/2020

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6789 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 26-03-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 21-01-2020
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: SHRIVIVEK VARDHAN
• Keywords: Additional evidence; Cost of acquisition; Corroborative evidences
• Section: 147; 148; 143(3)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘F’ NEW DELHI BEFORE SHRI G.S. PANNU, VICE-PRESIDENT AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA No. 381/Del/2020 Assessment Year: 2011-12 Prabhu Dayal, M-156, Raghubir Nagar, New Delhi-1100 37 Vs. Income Tax Officer, Ward 45(1), New Delhi PAN :AFEPD3762K (Appellant) (Respondent) ORDER PER ANUBHAV SHARMA, JUDICIAL MEMBER: This appeal is preferred by the assessee against the order dated 21.11.2019 of the Commissioner of Income Tax (Appeals)-15, Delhi (hereinafter referred as Ld. First Appellate Authority or in short Ld. ‘FAA’) in Appeal No.245/18-19 arising out of the appeal before it against the order dated 28.12.2018 passed u/s 147 r.w.s. 143(3) of the Income Tax Act, 1961 Assessee by Shri Salil Kapoor, Adv. Department by ShriVivek Vardhan, Senior DR Date of hearing 27.03.2023 Date of pronouncement 31.05.2024 2 ITA No.381/Del/2020 (hereinafter referred as ‘the Act’), by the ITO, Ward-45(1), New Delhi (hereinafter referred to as the Ld. AO). 2. Heard and perused the record. 3. The assessee is engaged in the business of Kirana and had not filed return of income for which assessment was opened u/s 147 of the Act by issuing a notice u/s 148 of the Act on 23.08.2018 for which the assessee filed return of income declaring income at Rs.15,890/- on 17.12.2018. The AO observed deposit of cash of Rs.49,01,000/- in savings bank account of the assessee with State bank of Bikaner & Jaipur and sought explanation of the source from the assessee. The assessee had submitted that the source of cash was deposit from sales consideration received after sale of ancestral property. The AO, however, computed the long-term capital gain on the entire sale consideration of the sale deed for which the assessee claimed before the CIT(A) that the assessee was owner of 50% of the land only, therefore, gross sales consideration should have been taken at Rs.11 lakh instead of Rs.22 lakhs. The assessee also filed additional evidences for which remand report was called from the AO and, after considering the remand report, the additional evidences were rejected and the addition was sustained. The CIT(A) on merits observed as follows:- “Without prejudice to the comments made in para 4.3 above regarding the admission of additional evidence, it is further seen from the report of the AO that the appellant is constantly changing his stand taken during the assessment proceedings. In the assessment proceedings, the appellant had stated that he had himself received an amount of Rs.22,00,000/- on account of sale of ancestor land, while now he is taking the stand that 50% consideration belonged to his brother Sh. Kishori Lai. However, no 3 ITA No.381/Del/2020 supporting evidences are available with the appellant in support of his this contention, Shri Kishori Lai Kataria is not found to have filed any Return of income for A.Y. 2011-12 and thus not declared any capital gain on the same. The assessee also stated that amount of Rs. 3,85,000/- towards the construction expense on newly purchased land was not claimed in ITR as the total purchase cost of new land only has been set off against the Long term capital gain. During the course of appellate proceedings, the appellant is also avoiding to file any rejoinder despite the sufficient opportunities provided to him as mentioned in para 3 above. Therefore, considering the facts and circumstances of the case, I do not find any merit in the submissions of the appellant and accordingly the additions of Rs. 6,09,873/- and Rs. 2,50,000/- made by the AO are hereby confirmed.” 4. Amongst other grounds on merits, the assessee has raised a specific ground No.5 that the CIT(A) had grossly erred on facts and in law in not admitting the additional evidences filed by the appellant. In this regard, as we go through the application for additional evidences under Rule 46A filed before the CIT(A) available at page 61 of the paper book along with relevant copies of documents like sale deed through which the property was sold, available at page 11 of the paper book; submissions filed before the AO in remand proceedings, available at page 25; proportion of land ownership of the assessee through which he earned agricultural income, available at page 47 of the paper book; confirmations from the person who took assessee’s land on Batia (tenancy) and paid rent, available at page 49; confirmations from the brother of the assessee that he received share of sale proceeds, available at page 51 of the paper book, grossly establish that the assessee was a co-owner and thus, sale was made jointly by the assessee with his brother Kishori Lal. 5. However, without a single word of reasoning for not admitting the additional evidences the CIT(A) has not taken the additional evidence into 4 ITA No.381/Del/2020 consideration. Opportunity not availed before AO, cannot be very sound reasoning to not entertain additional evidence, in the light of the fact that the assessee is an individual and an agriculturist who had initially not filed the return even. Thus where CIT(A) has failed to take cognizance of additional evidences, independently of the submissions of the AO, order of CIT(A) cannot be sustained. 6. In the light of the aforesaid, we are of the considered view that ends of justice will be served by giving the assessee an opportunity to contest on merits. Accordingly, we allow this ground and allow the additional evidences of the assessee. We consider it appropriate case to restore the issue to the files of AO. The AO shall take the additional evidences on record, make further enquiry, if any, and pass the order afresh. 7. In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 31/05/2024. Sd/- Sd/- (G.S. PANNU) (ANUBHAV SHARMA) VICE-PRESIDENT JUDICIAL MEMBER Dated: 31 st May, 2024. dk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi