Sh. Arun Kumar Gulia, New Delhi V. ITO, New Delhi

ITA 3938/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3638 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 09-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BALBIR KUMAR
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3938/DEL/2014 ASSESSMENT YEAR: 2007-08 SH. ARUN KUMAR GULIA, VS. ITO, WARD-25(4), B-29, MAIN GOPAL NAGAR, NEW DELHI NAJAFGARH, NEW DELHI 110 043 (PAN: AJVPG0326M) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. BALBIR KUMAR, CA REVENUE BY : SH. ARUN KUMAR YADAV, SR. DR ORDER PER H.S. SIDHU, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 01.04.2014 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)- XXVIII, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2007- 08. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THAT IN LAW AND UNDER THE FACTS OF THE CASE, THE ASSESSMENT ORDER DATED 1.4.2014 PASSED BY AO UNDER SECTION 144 OF THE INCOME TAX ACT, 1961. 2. THAT IN LAW AND UNDER THE FACTS OF THE CASE, LD. CIT(A) HAS ERRED BY NOT CONSIDERING THE 2 MERITS OF THE CASE. THUS, APPELLATE ORDER UNDER SECTION 250 OF THE ACT IS BAD IN LAW. 3. THAT IN LAW AND UNDER THE FACTS OF THE CASE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 76,65,000/- AS UNEXPLAINED CREDIT IN THE BANK ACCOUNTS DESPITE OF THE FACT THAT AMPLE EVIDENCES WERE PRODUCED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. THAT IN LAW AND UNDER THE FACTS OF THE CASE LD. CIT(A) HAS ERRED IN ENHANCING THE INCOME OF THE APPELLANT BY RS. 12,75,000/- AS AMOUNT DEPOSITED WITH STATE BANK OF MYSORE, NEW DELHI WITHOUT APPRECIATING MATERIAL ON RECORD. 5. THAT IN LAW AND UNDER THE FACTS OF THE CASE LD. CIT(A) HAS ERRED BY INCLUDING THE CAPITAL GAINS EARNED ON THE SALE OF AGRICULTURAL LAND WITHOUT CONSIDERING THAT SAME IS NOT CHARGEABLE TO TAX AS PER THE PROVISIONS OF THE ACT AND IGNORING THE MATERIAL ON RECORD. 6. THAT IN LAW AND UNDER THE FACTS OF THE CASE AO HAS ERRED IN INITIATING THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) AND 271(1)(C) OF THE ACT. 3 7. THE APPELLANT CRAVES FOR LEAVE TO ADD, AMEND, VARY, OMIT OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE, HA S STATED THAT AO HAS PASSED THE EXPARTE ORDER DATED 29.12.2009 U/ S. 144 OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING SUFFICIENT O PPORTUNITY TO THE ASSESSEE. HE FURTHER STATED THAT LD. CIT(A) HAS NOT CONSIDERED THE MERITS OF THE CASE AND UPHELD THE ADDITION OF RS. 7 6,65,000/- AS UNEXPLAINED CREDIT IN THE BANK ACCOUNTS DESPITE OF THE FACT THAT AMPLE EVIDENCES WERE PRODUCED BY THE ASSESSEE DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS AND HE ALSO ERRED IN ENHANCI NG THE INCOME OF THE ASSESSEE BY RS. 12,75,000/- AS AMOUNT DEPOSI TED WITH STATE BANK OF MYSORE, NEW DELHI WITHOUT APPRECIATING MATE RIAL ON RECORD. THEREFORE, HE REQUESTED THAT THE ORDERS PASSED BY T HE REVENUE AUTHORITIES ARE AGAINST THE PRINCIPLE OF NATURAL JU STICE AND REQUESTED FOR SETTING ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH, UNDER THE LAW. LD. COUNSEL OF TH E ASSESSEE ALSO UNDERTAKE NOT TO TAKE ANY UNNECESSARY ADJOURNMENT A ND WILL COOPERATE IN THE ASSESSMENT PROCEEDINGS FOR SPEEDY ASSESSMENT PROCEEDINGS. HE ALSO STATED THAT ASSESSEE IS HAVIN G ALL THE NECESSARY 4 EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSES SEE AND WILL FILE THE SAME BEFORE THE AO, IF THE BENCH SET ASIDE THE ISSUES TO THE FILE OF THE AO FOR FRESH ADJUDICATION. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW AND OPPOSED THE AFORESAID REQUEST OF THE LD. COUNSEL OF THE ASSESSEE. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE HAVE ALSO GONE THROUGH THE ORDER PASSED BY THE REVE NUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. WE FIND FORCE IN THE ARGUMENTS OF THE LD. C OUNSEL OF THE ASSESSEE THAT AO HAS COMPLETED THE ASSESSMENT U/S. 144 OF THE INCOME TAX ACT, 1961 ON 29.12.2016 WITHOUT PROVIDIN G SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND SIMILARLY THE LD. C IT(A) HAS ALSO DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE B Y PASSING THE IMPUGNED ORDER WHICH IS A NON-SPEAKING ORDER AND WI THOUT CONSIDERING THE MERITS OF THE CASE. THEREFORE, IN THE INTEREST OF JUSTICE, THE ISSUES IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE AFRESH UNDER THE LAW, AFTER GIVING ADEQU ATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO D IRECTED TO COOPERATE WITH THE AO IN THE PROCEEDINGS AND FILE A LL THE NECESSARY EVIDENCES/DOCUMENTS FOR SUBSTANTIATING HIS CASE. 5 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 16-11-2017. SD/- SD/- [PRASHANT MAHARISHI] (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16-11-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.