Shashank Mohan Jain, New Delhi V. DCIT, New Delhi

ITA 3940/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0228 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 09-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 23-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Assessee Lawyers: VINOD SRIVASTAVA
• Keywords: Opportunity of being heard; Additional evidence; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI K.G.BANSAL K.G.BANSAL K.G.BANSAL K.G.BANSAL, AM , AM , AM , AM ITA NO. ITA NO. ITA NO. ITA NO.3940/DEL/2010 3940/DEL/2010 3940/DEL/2010 3940/DEL/2010 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2007 2007 2007 2007- -- -08 0808 08 SHRI SHASHANK MOHAN JAIN, SHRI SHASHANK MOHAN JAIN, SHRI SHASHANK MOHAN JAIN, SHRI SHASHANK MOHAN JAIN, PROPRIETOR OF DOMESTIC INDIA, PROPRIETOR OF DOMESTIC INDIA, PROPRIETOR OF DOMESTIC INDIA, PROPRIETOR OF DOMESTIC INDIA, KUSH 003, AGRASEN KUSH 003, AGRASEN KUSH 003, AGRASEN KUSH 003, AGRASEN CORP.GROUP HO CORP.GROUP HO CORP.GROUP HO CORP.GROUP HOUSING SOCIETY, USING SOCIETY, USING SOCIETY, USING SOCIETY, 66 PATPARGANJ EXTN., 66 PATPARGANJ EXTN., 66 PATPARGANJ EXTN., 66 PATPARGANJ EXTN., DELHI DELHI DELHI DELHI 110 092. 110 092. 110 092. 110 092. PAN NO. PAN NO. PAN NO. PAN NO.AAGPJ2839Q. AAGPJ2839Q. AAGPJ2839Q. AAGPJ2839Q. VS. VS. VS. VS. DY.COMMISSIONER OF INCOME TAX, DY.COMMISSIONER OF INCOME TAX, DY.COMMISSIONER OF INCOME TAX, DY.COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -35(1), 35(1), 35(1), 35(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD SRIVASTAVA, ADVOCATE. RESPONDENT BY : SMT.S.MOHANTY, DR. ORDER ORDER ORDER ORDER PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI, J , J, J , JM : M : M : M : THE ASSESSEE IS IN APPEAL AGAINST THE LEARNED CIT( A)S ORDER DATED 26.11.2010 PERTAINING TO THE AY 2007-08. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THAT ASSESSING AUTHORITIES AS WELL AS FIRST APP ELLATE AUTHORITY ERRED BOTH IN LAW AND FACTS OF THE CASE. 2. THAT ADDITION OF RS.27,90,000/- MADE IN ASSESSME NT ORDER AND CONFIRMED BY APPELLATE AUTHORITY IS AGAIN ST DOCUMENTARY EVIDENCE. 3. THAT THE AUTHORITIES BELOW ERRED IN HOLDING THAT PROPERTY WAS DEPRECIABLE ASSETS, AS FACTUALLY THE S AME WAS ITA-3940/DEL/2010 2 RESIDENTIAL PROPERTY AND BY LAW IT COULDNT BE USED AS FACTORY. 4. THAT ORDER OF AUTHORITIES BELOW ARE BAD IN LAW. 3. IN THE COURSE OF HEARING OF THIS APPEAL, THE ASS ESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES B Y GIVING THE REASONS AS UNDER:- 1. THAT THE ASSESSEE HAD TAKEN UNSECURED LOAN OF RS.9,00,000/- FROM HIS SON SAMIR JAIN AND RS.1,70,0 00/- FROM HIS WIFE SNEH LATA JAIN DURING THE ASSTT.YEAR 2007-08. 2. THAT SAMIR JAIN IS EMPLOYMENT WITH M/S NOKIA SIEMENS NETWORK SINGAPORE PVT.LTD. THAT SMT.SNEH L ATA JAIN, MOTHER OF SAMIR JAIN AND WIFE OF ASSESSEE EXP IRED ON 11.07.2009. SH.SAMIR JAIN CAME TO INDIA AT HER DEM ISE AND REMAINED WITH HIS FATHER (ASSESSEE) FOR A PERIOD OF MONTH APPROXIMATELY. ON RETURN TO SINGAPORE HE REMAINED EXTREMELY BUSY DUE TO PENDING WORK AND OF HIS SENIO R POSITION IN COMPANY. IN INDIA THE ASSESSMENT PROCE EDING OF THE ASSESSEE WERE GOING ON AND INSPITE OF MANY R EQUEST SENT BY ASSESSEE TO HIS SON HE COULD NOT SEND DOCUM ENTS REQUESTED BY THE ASSESSEE. ASSESSEE IS AN OLD PERS ON, SUFFERING MENTAL AGONY AND COULD NOT FOLLOW HIS CAS E PROPERLY. HOWEVER HIS SON WHO WAS ALSO MENTALLY DISTURBED DUE TO DEATH OF HIS MOTHER SENT THE FOLLO WING PAPER ON 26.07.2010, MUCH AFTER THE DATE OF APPEAL ORDER. 1. CERTIFICATE OF EMPLOYMENT. 2. NOTICE OF TERMINATION OF SERVICE AND RE EMPLOYME NT. 3. CONFIRMATION OF DETAIL OF ACCOUNT BY DBS BANK SINGAPORE. 4. SINGLE TRANSACTION CREDIT TRANSFER BY BANK DBS. 5. COPY OF BANK A/C HDFC BANK, NEW DELHI IN SUPPORT OF TRANSACTION. 6. PAN COPY. 3. THAT SNEH LATA WIFE OF ASSESSEE EXPIRED ON 11.07.2009 AND ASSESSEE BEING OLD AND ALONE COULD N OT TRACE THE DOCUMENTS DURING COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER HE HAS NOW WITH HELP OF ONE O F HIS ITA-3940/DEL/2010 3 RELATIVE PROCURED THE FOLLOWING DOCUMENTS IN SUPPOR T OF LOAN AMOUNT OF RS.1,70,000/-. A. COPY OF THE BANK A/C IN AXIS BANK REFLECTING THE TRANSFER OF RS.1,70,000/- TO THE TUNE OF ASSESSEE. B. COPY OF BANK A/C SINCE 2002, WHEN SHE GOT MONEY FROM HIS HUSBAND FOR HER EXPENSES AND PLACED IT IN FIXED DEPOSIT IN JULY 2002. C. LOAN A/C COPY OF AXIS BANK, CONTAINING THE ENTRY OF LOAN OF RS.1,70,000/- TAKEN BY THE AGAINST HER FIXE D DEPOSIT AND TRANSFER TO ASSESSEE FUND. 4. THAT ASSESSEE MADE AN ADDITION OF RS.17,20,000/- IN HIS CAPITAL A/C. HE PRODUCED THE BANK STATEMENT AN D EXPLAINED THE SOURCE, BUT WAS NOT ADVISED TO FILE T HE COPY OF SALE DEED OF HIS FLAT IN SUPPORT OF AMOUNT DEPOS ITED IN THE ACCOUNT. 5. THAT UNDER THE ABOVE CIRCUMSTANCES OF THE ASSESS EE, WHO BEGS TO SUBMIT THE RELEVANT PAPER DOCUMENTS B ANK STATEMENT, SALE DEED, ETC. UNDER RULE 29 OF APPELLA TE TRIBUNAL RULES. I PRAY THAT PERMISSION MAY KINDLY BE GRANTED TO ADDUCE THE SAME AS ADDITIONAL EVIDENCE F OR DECIDING THE APPEAL. 4. WE HAVE HEARD BOTH THE PARTIES ON THIS POINT AND FIND THAT IN THE LIGHT OF THE REASONS GIVEN BY THE ASSESSEE, THE ASS ESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FROM F URNISHING AND PRODUCING ALL THESE EVIDENCES BEFORE THE AO. WE, T HEREFORE, ADMIT THESE ADDITIONAL EVIDENCES FOR CONSIDERATION. HOWE VER, THESE ADDITIONAL EVIDENCES WERE NOT BEFORE THE AO, AND TH E AO HAD NO OPPORTUNITY TO EXAMINE AND VERIFY THE SAME. THEREF ORE, WE RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDIC ATION AFTER EXAMINING AND VERIFYING ALL THE EVIDENCES INCLUDING THESE ADD ITIONAL EVIDENCES NOW FILED BY THE ASSESSEE BEFORE US. THE ASSESSEE SHALL BE AT LIBERTY TO PRODUCE ANY OTHER EVIDENCE OR EVIDENCES BEFORE THE AO IN SUPPORT OF HIS CASE. THE AO SHALL DECIDE THE MATTER AS PER LA W AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THEREFORE, ALL ITA-3940/DEL/2010 4 THE ISSUES RAISED IN THIS APPEAL ARE RESTORED TO TH E FILE OF THE AO FOR FRESH ADJUDICATION AS HELD ABOVE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH, 2011. SD/- SD/- (K.G.BANSAL (K.G.BANSAL (K.G.BANSAL (K.G.BANSAL) )) ) (C.L.SETHI (C.L.SETHI (C.L.SETHI (C.L.SETHI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 11.03.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR ITA-3940/DEL/2010 5