Shri Sahab Singh, Delhi V. ITO, New Delhi

ITA 3889/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3281 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 03-05-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 07-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K K AGARWAL
• Keywords: Gift; Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NOS. 3889 & 3890/DEL/2014 A.Y. : 2005-06 SHRI SAHAB SINGH, CN NO. 340, HOUSE NO. 89, VILLAGE BAMNOLI P.O. PALAM DELHI 110 007 (PAN: DBHPS1856P) VS. ITO, WARD 27(3), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K.K.AGARWAL, ADV. DEPARTMENT BY : SH. N.K. BANSAL, SR. DR ORDER PER H.S. SIDHU : JM THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINS T THE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX(A)-19, NEW DELH I BOTH DATED 31.03.2014 PERTAINING TO ASSESSMENT YEAR 2005-06. S INCE THE ISSUES INVOLVED IN THESE APPEALS ARE INTER-CONNECTED, HENC E, THE APPEALS WERE HEARD TOGETHER AND ARE NOW BEING CONSOLIDATED AND D ISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED IN ITA NO. 3889/DEL/2014 READ AS UNDER: 1. THE LD. ITO, WARD 27(3) WRONGLY AND BASELESSLY D ISALLOWED THE PAYMENT REALIZED IN MY ACCOUNT AND ADDED IN INC OME WITHOUT CONSIDERING FACTS. 2 2. THE LD. ITO, WARD 27(3) HAS NOT GIVEN ANY OPPORT UNITIES TO THE APPELLANT FOR PRODUCING REQUIRED EVIDENCE FOR A SSESSMENT AND ALSO NOTICES WERE NOT SERVED PROPERLY TO THE AP PELLANTS ADDRESS FOR THE ASSESSMENT, THE LD. AO FRAMED THE ASSESSMENT U/S. 147/144 OF THE I.T. ACT, 1961. 3. THAT THIS ACTION OF ITO IS UNDUE HARDSHIP TO TH E APPELLANT. 4. IN THE END IT IS PRAYED THAT TRUE ASSESSMENT ORD ER MAY KINDLY BE MODIFIED AFTER GIVING AN OPPORTUNITIES FOR THE R EQUISITES SUBMISSION BY APPELLANT. 3. THE GROUNDS RAISED IN ITA NO. 3890/DEL/2014 REA D AS UNDER: 1. THE LD. ITO, WARD 27(3) WRONGLY AND BASELESSLY D ISALLOWED THE PAYMENT REALIZED IN MY ACCOUNT AND ADDED IN INC OME WITHOUT CONSIDERING FACTS. 2. THE LD. ITO, WARD 27(3) HAS NOT GIVEN ANY OPPORT UNITIES TO THE APPELLANT FOR PRODUCING REQUIRED EVIDENCE FOR A SSESSMENT AND ALSO NOTICES WERE NOT SERVED PROPERLY TO THE AP PELLANTS ADDRESS FOR THE ASSESSMENT, THE LD. AO FRAMED THE P ENALTY ORDER U/S. 271(1) OF THE I.T. ACT, 1961. 3. THAT THIS ACTION OF ITO IS UNDUE HARDSHIP TO TH E APPELLANT. 4. IN THE END IT IS PRAYED THAT TRUE ASSESSMENT ORD ER MAY KINDLY BE MODIFIED AFTER GIVING AN OPPORTUNITIES FOR THE R EQUISITES SUBMISSION BY APPELLANT. ITA NO. 3889/DEL/2014 (AY 2005-06) 4. THE FACTS NARRATED BY THE REVENUE AUTHORITIES A RE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THEY ARE NOT REPEATED HER E FOR THE SAKE OF BREVITY. 3 5. AT THE TIME OF HEARING, SHRI K.K. AGARWAL, ADVOC ATE/LD. COUNSEL FOR THE ASSESSEE DRAW OUR ATTENTION TOWARDS THE ASSESSM ENT ORDER DATED 20.11.2005 PASSED U/S. 147/144 OF THE I.T. ACT, 196 1. HE STATED THAT THE AO HAS NOT GIVEN OPPORTUNITY TO THE ASSESSEE FOR SU BSTANTIATING ITS CLAIM BEFORE HIM. HE FURTHER STATED THAT THE AO HAS ALS O NOT GIVEN OPPORTUNITY FOR PRODUCING REQUIRED EVIDENCE FOR ASSESSMENT AND ALSO NOTICES WERE NOT SERVED PROPERLY TO THE ASSESSEES ADDRESS FOR THE A SSESSMENT, FURTHER HE STATED THAT SIMILARLY, LD. CIT(A) HAS ALSO DECIDED THE APPEAL OF THE ASSESSEE EXPARTE WITHOUT AFFORDING OPPORTUNITY TO T HE ASSESSEE AND WRONGLY UPHELD THE EXPARTE ORDER PASSED BY THE AO. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE HAS FILED A PAPER BOOK CONT AINING PAGES 1 TO 114 HAVING THE COPY OF WRITTEN SUBMISSION; MEMORANDUM O F APPEAL (FORM 36); CIT(A) ORDER; ACKNOWLEDGEMENT OF THE ORDER; ME MORANDUM OF APPEAL (FORM NO. 35); STATEMENT OF FACTS OF THE CAS E AS SUBMITTED BEFORE THE CIT(A); ASSESSMENT ORDER; INCOME TAX COMPUTATIO N FORM; DEMAND AND HEARING NOTICE; POWER OF ATTORNEY; FEE PAYMENT CHALLAN; TWO GIFT DEED OF VIRENDER SINGH ALONGWITH ITS ITR/WTR, STATE MENT OF AFFAIRS PAN, RATION CARD, INCOME AND EXPENDITURE ACCOUNTS; TWO G IFT DEED OF AJIT SINGH ALONGWITH ITS ITR/WTR, STATEMENT OF AFFAIRS, PAN, RATION CARD, INCOME AND EXPENDITURE ACCOUNTS; INTEREST CERTIFICATE ON F DR; BANK STATEMENT AND CASES. HE SUBMITTED THAT THE AFORESAID DOCUMENT S WERE NOT CONSIDERED BY THE LOWER AUTHORIZED WHILE PASSING TH EIR RESPECTIVE ORDERS, WHICH GOES TO THE ROOT OF THE MATTER AND ARE VERY E SSENTIAL TO BE CONSIDERED. THEREFORE, HE REQUESTED THAT THE ISSU ES IN DISPUTE MAY BE 4 SET ASIDE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE. 6. ON THE CONTRARY, SH. N.K. BANSAL, SR. DR STRONG LY OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE AND STAT ED THAT THE ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE AO AS WELL AS L D. CIT(A), HENCE, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED BY UPHOLDIN G THE ACTION OF THE LD. CIT(A). 7. SHRI K.K. AGARWAL, LD. COUNSEL FOR THE ASSESSEE UNDERTAKE ON BEHALF OF THE ASSESSEE TO FULLY COOPERATE WITH THE AO IN T HE ASSESSMENT PROCEEDINGS AND TO FILE ALL NECESSARY EVIDENCES WI THOUT WASTING OF FURTHER TIME. 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES AS WELL AS THE PAPER BOOK WHICH CONTAIN S PAGES 1 TO 114 HAVING THE COPY OF WRITTEN SUBMISSION; MEMORANDUM O F APPEAL (FORM 36); CIT(A) ORDER; ACKNOWLEDGEMENT OF THE ORDER; ME MORANDUM OF APPEAL (FORM NO. 35); STATEMENT OF FACTS OF THE CAS E AS SUBMITTED BEFORE THE CIT(A); ASSESSMENT ORDER; INCOME TAX COMPUTATIO N FORM; DEMAND AND HEARING NOTICE; POWER OF ATTORNEY; FEE PAYMENT CHALLAN; TWO GIFT DEED OF VIRENDER SINGH ALONGWITH ITS ITR/WTR, STATE MENT OF AFFAIRS PAN, RATION CARD, INCOME AND EXPENDITURE ACCOUNTS; TWO G IFT DEED OF AJIT SINGH ALONGWITH ITS ITR/WTR, STATEMENT OF AFFAIRS, PAN, RATION CARD, INCOME AND EXPENDITURE ACCOUNTS; INTEREST CERTIFICATE ON F DR; BANK STATEMENT 5 AND CASES. WE FIND FORCE IN THE CONTENTION RAISED B Y THE LD. COUNSEL OF THE ASSESSE THAT THE AFORESAID DOCUMENTS WERE NOT C ONSIDERED BY THE LOWER AUTHORITIES WHILE PASSING THEIR RESPECTIVE O RDERS, HOWEVER, THE GOES TO THE ROOT OF THE MATTER AND ARE VERY ESSENTIAL TO BE CONSIDERED. WE ARE OF THE CONSIDERED VIEW THAT AO AS WELL AS LD. CIT(A ) HAS DECIDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE WITHOUT AFFO RDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND AO HAS NOT SERVED T HE NOTICES PROPERLY TO THE ASSESSEES ADDRESS I.E. CN NO. 340, HOUSE NO. 8 9), VILLAGE BAMNOLI, PO PALAM, NEW DELHI. HOWEVER, THE NOTICE/ASSESSMEN T ORDER WAS SENT AT VILLAGE BAMNOLI, NEW DELHI 110 061. AS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS HAVING ALL NECESS ARY EVIDENCES FOR SUBSTANTIATING ITS CLAIM BEFORE THE AO AND ALSO UND ERTAKE TO FULLY COOPERATE IN THE ASSESSMENT PROCEEDINGS AND TO FILE THE NECESSARY EVIDENCES FOR SUBSTANTIATING ITS CLAIM BEFORE THE A O WITHOUT WASTING OF FURTHER TIME. KEEPING IN VIEW OF THE STATEMENT GIV EN BY THE LD. COUNSEL FOR THE ASSESSEE ON BEHALF OF THE ASSESSEE AND ON T HE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CO NSIDERED VIEW THAT THE ISSUES IN DISPUTE REQUIRES THOROUGH EXAMINATION AT THE LEVEL OF THE AO. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO TO CONSIDER THE SAME, AFRESH UND ER THE LAW, AFTER GIVING FULL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, THE ASSESSEE IS DIRECTED TO FILE ALL THE RELEVANT DOCUMENTS BEFO RE THE AO FOR SUBSTANTIATING ITS CLAIM AND FULLY COOPERATE WITH T HE AO IN THE PROCEEDINGS. 6 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 3890/DEL/2013 (AY 2005-06) 10. SINCE IN QUANTUM PROCEEDINGS, AS AFORESAID, TH E ISSUES IN DISPUTE HAS ALREADY BEEN SET ASIDE TO THE FILE OF THE AO BY THIS BENCH FOR FRESH ADJUDICATION, THEREFORE, THE PENALTY IN QUESTION CANNOT STAND IN THE EYES OF LAW. HENCE, THE PENALTY IN DISPUTE STANDS DELETED. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT IF AO AGAIN MADE ANY ADDITION IN COMPLIANCE OF OUR AFORESAID DIRECTIONS, THEN THE AO IS AT LIBERTY TO LEVY THE PENALTY, AS PER LAW. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED IN THE AFORESAID MANNER. 11. IN THE RESULT, THE ITA NO. 3889/DEL/2014 IS ALL OWED FOR STATISTICAL PURPOSES AND ITA NO. 3890/DEL/2014 IS ALLOWED IN TH E AFORESAID MANNER. ORDER PRONOUNCED IN THE OPEN COURT ON 05/05/2017. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 05/05/2017 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