ITO, New Delhi V. Sh. Mridul Manohar, Delhi

ITA 3837/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4052 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 03-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 12-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ TONDON
• Assessee Lawyers: KARAN KHANNA
• Keywords: Additional evidence; Corroborative evidences
• Section: 144

Judgement Text

ITA NO. 3837/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 3837/DEL/2010 A.Y. : 2006-07 INCOME TAX OFFICER - WARD 46(1), 427-B, MAYUR BHAVAN, NEW DELHI VS. SHRI MRIDUL MANOHAR, B-53, PANDAV NAGAR, PATPARGANJ ROAD, DELHI 110 092 (PAN : AEOPM0606C) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. KARAN KHANNA, ADV. DEPARTMENT BY : SH. RAJ TONDON, C.I.T. (D.R.) ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE ASSESSING OFFICER DATED 31.5.2010 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS), HAS ERR ED IN ; I) DELETING THE ADDITION AMOUNTING TO ` 2,36,33,992/- ACCEPTING ADDITIONAL EVIDENCES WITHOUT CONSIDERING THE SUBMISSION OF THE ASSESSING OFFICER IN THE REMAND R EPORT REGARDING ASSESSEES CONTENTION OF NON-RECEIPT OF N OTICES AND THEREFORE NOT TO ACCEPT ADDITIONAL EVIDENCES; ITA NO. 3837/DEL/2010 2 II) ALLOWING ASSESSEES APPEAL ON THE BASIS OF ADDITIO NAL EVIDENCE WHICH NEITHER BIFURCATED BETWEEN WHETHER GAIN/ LOSS EARNED TO THE ASSESSEE WAS SHORT TERM OR LONG T ERM NOR WAS IT CONCLUSIVE IN ESTABLISHING THE FACT THAT W HETHER THERE WERE ANY SPECULATIVE TRANSACTION OR NOT AS SP ECULATIVE LOSS CANNOT BE ADJUSTED AGAINST NON-SPECULATIVE GAI N; III) NOT CONSIDERING THE FACT THAT WHILE CLAIMING NET L OSS OF ` 65,885/-, THE ASSESSEE CLAIMED EXPENSES WHICH ARE N OT ALLOWABLE UNDER THE HEAD CAPITAL GAINS; IV) ACCEPTING THE SHARE TRANSACTIONS MADE BY THE ASSESS EE AS NON-INVESTMENT. 3. IN THIS CASE ASSESSMENT WAS FRAMED U/S 144 OF THE IT ACT. ASSESSEE HAS FILED A RETURN DECLARING TOTAL INCOME OF ` 1,67,790/-. ASSESSING OFFICER NOTED THAT IN THIS CASE THERE IS CIB INFORMATION, ACCORDING TO WHICH THE ASSESSEE HAS ENTERED INTO A SHARE TRANSACTION OF ` 2,36,33,992/- DURING THE PERIOD UNDER CONSIDER ATION. ASSESSING OFFICER HELD THAT IN THE ABSENCE OF ANY SUPPORTING EVIDENCE, HE WAS TREATING THE SAID AMOUNT AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. ACCORDINGLY, HE MADE AN ADDITION OF ` 2,3 6,33,992/-. 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ASSESSEE SUBMITTED THAT THE NOTICES WERE SENT ON THE WRONG A DDRESS, HENCE, NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO EXPLAIN AN D DISCUSS THE MATTER. IT WAS SUBMITTED THAT ASSESSING OFFICER ERR ED IN ADDING THE SHARE TRANSACTION OF ` 2,36,33,992/- TO THE INCOME OF THE ASSESSEE TREATING THE SAME AS INVESTMENT INCOME FROM UNDISCL OSED SOURCES, WHEREAS THE AMOUNT RELATED TO THE TOTAL VALUE OF S ALE AND PURCHASE OF SHARES, WHICH WAS ALSO NOT RECONCILED. ITA NO. 3837/DEL/2010 3 5. FURTHER, BEFORE THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) ASSESSEE SUBMITTED THAT ADDITIONAL EVIDENCES. IN THE ADDITIONAL EVIDENCES ASSESSEE SUBMITTED A DETAIL OF SHARE TRA NSACTION OF THE ASSESSEE, COPY OF DMAT ACCOUNT AND PROFIT AND LOS S ACCOUNT IN THIS REGARD FOR A.Y. 2005-06. THE ADDITIONAL EVIDENC ES WERE SENT BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO THE ASSES SING OFFICER . THE ASSESSING OFFICER IN HIS REMAND REPORT REPORTE D THAT THE ADDITIONAL EVIDENCES SUBMITTED WERE CORRECT. HOWEVER, THE SAME SHOULD HAVE BEEN SUBMITTED DURING THE COURSE OF ASSESSMENT. CO NSIDERING THE ABOVE LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD T HAT HE AGREED WITH THE CONTENTION THAT NOTICES WERE NOT SENT TO THE CORRECT ADDRESS OF THE ASSESSEE. SHE FURTHER FOUND THAT THE SAME AMOUNT WAS ADDED TO THE ASSESSEE INCOME WITHOUT ASKING ANY CLARIFICA TION FROM THE ASSESSEE. IN VIEW OF THE ADDITIONAL EVIDENCE SUBMI TTED DURING THE APPELLATE PROCEEDINGS. LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT IT WAS NOT CORRECT TO SAY THAT THE ASSESS EE HAD INVESTED A SUM OF ` 2,36,33,992/- BECAUSE THE SAME INCLUDE SALE AND PURCHASE OF SHARES. CONSIDERING THE ABOVE, LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE ADDITION OF ` 2,36,33,992/- WAS LIABLE TO BE DELETED. 6. AGAINST THIS ORDER, THE REVENUE IS IN APPEAL BEF ORE US. 7. WE HAVE CAREFULLY CONSIDER THE SUBMISSIONS AND PE RUSED THE RECORDS. WE FIND THAT ASSESSEE WAS DEPRIVED OF P ROPER OPPORTUNITY TO CANVASS HIS CASE BEFORE THE ASSESSING OFFICER AS THE NOTICES IN THIS REGARD WERE SENT AT THE WRONG ADDRESS. LD. COMMISSI ONER OF INCOME TAX (APPEALS) HAS CATEGORICALLY GIVEN A FINDING THA T ASSESSEE HAS SUBMITTED THE DETAIL OF ASSESSEES SHARE BUSINESS I NCLUDING THE DMAT ITA NO. 3837/DEL/2010 4 ACCOUNT. THE ADDITIONAL EVIDENCES WERE ALSO FOUND TO BE PROPER BY THE ASSESSING OFFICER IN THE REMAND REPORT. IN LIGHT OF THE ABOVE, LD. COMMISSIONER OF INCOME TAX (APPEALS)S FINDING THAT THE ADDITION OF ` 2,36,33,992/- WAS NOT JUSTIFIED CANNOT BE SAID TO B E LIABLE FOR ANY INTERFERENCE ON OUR PART. UNDER THE CIRCUMSTANCES, WE UPHOLD THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/05/2011. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 06/05/2011 SRB 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, DEPUTY REGISTRAR, ITAT, DELHI BENCHES