Shri Amitava Roy, New Delhi V. ITO, New Delhi

ITA 3972/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86509 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-01-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 25-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARWINDER KAUR
• Keywords: Opportunity of being heard
• Section: 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. GEORGE GEORGE K. , JM ITA NO. 3972 /DEL/2013 : ASSTT. YEAR : 2005 - 06 SHRI AMITAVA ROY K - 144, C. R. PARK, NEW DELHI - 110019 VS INCOME TAX OFFICER, WARD - 40(4), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A IIPR5866M ASSESSEE BY : SH. K. SAMPATH, ADV. REVENUE BY : SMT. PARWINDER KAUR , SR. DR DATE OF HEARING : 07 .01.2015 DATE OF PRONOUNCEMENT : 07 .01.2015 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 26.03 .2013 OF LD. CIT(A) - X IX , NEW DELHI. 2. THE ONLY GROUND RAISED IN THIS APPEAL READ AS UNDER: ON THE FA CTS AND CIRCUMSTANCES OF THE CASE THE HON BLE CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE LD. INCOME TAX OFFICER S ORDER ASSESSING THE INCOME OF THE ASSESSEE AT RS. 6,00,000/ - WHICH IS INVESTMENT IN MUTUAL FUND AS AN NRI. 3. FACTS OF THE CASE IN BRIE F ARE THAT THE ASSESSMENT IN THIS CA SE WAS FRAMED U/S 144 OF THE I. T . ACT, 1961(HEREINAFTER ITA NO. 3972 /DEL /2013 AMITAVA ROY 2 REFERRED TO AS THE ACT) VIDE ASSESSMENT ORDER DATED 27.12.2007 DETERMINING THE INCOME AT RS. 6,00,000/ - . THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMI TTED THAT HE WAS NON - RESIDENT F ROM OCTOBER , 1998 TO MAY , 2005 AND THE INVESTMENT OF RS. 6,00,000/ - WAS MADE OUT OF FUND S EARNED AS A NON - RESIDENT (COPY OF BANK ACCOUNT WAS ALSO FURNISH ED). THE LD. CIT(A), HOWEVER, DID NOT FIND MERIT IN THE SUBMISSIONS OF T HE ASSESSEE ON THE TECHNICAL GROUND THAT THE SIGNATURE ON FORM NO. 35 AND THE SIGNATURE ON THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2006 - 07 WERE DIFFERENT AND THAT THE EXPLANATION OF THE ASSESSEE FOR INVESTMENT LACKED CREDIBILITY . A GAINST THE SAI D ORDER OF THE CIT(A), T HE ASSESSEE FILED AN APPLICATION U/S 154 OF THE ACT STATING THEREIN AS UNDER: YOUR HONOUR HAS PASSED THE ORDER OF APPEAL VIDE YOU ORDER DATED 05.01.2012 IN THE CASE OF THE ABOVE REFERRED APPELLANT, WHICH THE SAME HAS BEEN DISMISS ED BY MAKING AN OBSERVATION THAT NO PROPER EXPLANATION WAS GIVEN FOR THE SOURCES OF THE FUNDS DEPOSITED IN THE BANK ACCOUNT. IT IS HUMBLY SUBMITTED THAT AT THE TIME OF HEARING OF THE APPEAL, THE PROOF OF THE APPELLANT BEING NRI WAS FILED ALONGWITH THE BA NK STATEMENTS SHOWING THE INVESTMENT AND INCOME. ITA NO. 3972 /DEL /2013 AMITAVA ROY 3 THE ISSUE BEFORE YOUR GOODSELF WAS THE INVESTMENT IN MUTUAL FUNDS OF RS. 6,00,000/ - WHICH WAS SHOWN TO HAVE INVESTED FROM THE INCOME OF THE APPELLANT AS AN NRI. THE APPELLANT HAS NOT BEEN IN INDIA, ITSELF I S A PROOF THAT HE HAS NO INCOME FROM INDIA EXCEPT INCOME FROM INTEREST AND DIVIDEND FROM MUTUAL FUND. THE APPELLANT HAS FILED THE FOLLOWING TO PROVE HIS INVESTMENT AND INCOME: 1. COPY OF BANK ACCOUNT DETAIL 2. DETAIL OF INVESTMENT 3. PROOF OF BEING NRI FURTHER AS FAR AS THE SIGNATURES ARE CONCERNED BEING DIFFERENT, THEY ARE FROM THE APPELLANT ITSELF AND IF REQUIRED AND AFFIDAVIT TO THE EFFECT MAY BE FILED. THUS, IT IS PRAYED THAT THE ORDER MAY PLEASE BE RECTIFIED IN VIEW OF THE DETAILS ALREADY PLACED ON RECORD AT THE TIME OF HEARING OF THE APPEAL. 4 . THE LD. CIT(A), HOWEVER, DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE BY OBSERVING THAT THE ISSUE HAD BEEN DULY CONSIDERED AND DECIDED BY HIS PREDECESSOR AND THAT THE ASSESSEE SOUGHT A REVIEW OF THE ORDER RA THER THAN RECTIFICATION. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO PASSED THE ASSESSMENT ORDER EX PARTE U/S 144 OF THE ACT WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE COPY OF BANK ACCOUNT SHOW ING THE INVESTMENT. IT WAS FURTHER STATED THAT THE LD. CIT(A) ALSO WITHOUT CONSIDERING THE SUBMISSIONS AND THE ITA NO. 3972 /DEL /2013 AMITAVA ROY 4 DETAILS FURNISHED BY THE ASSESSEE SUSTAINED THE ARBITRARY ADDITION MADE BY THE AO . IT WAS ALSO SUBMITTED THAT WHEN THE MISTAKE WAS POINTED OUT FO R NOT CONSIDERING THE EVIDENCES AND THE SUBMISSIONS OF THE ASSESSEE, T HE LD. CIT(A) AGAIN DISMISSED THE APPLICATION MOVED BY THE ASSESSEE U/S 154 OF THE ACT. HE REQUESTED THAT THE MATTER MAY BE SENT BACK TO THE LD. CIT(A) FOR FRESH ADJUDICATION AFTER CONSI DERING ALL THE DOCUMENTS AND THE SUBMISSIONS WHICH ARE ALREADY ON RECORD. IN HER RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT SEEMS THAT THE EXPLANATION AND THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE HAD NOT BEEN CONSIDERED PROPERLY BY THE LD. CIT(A). IT IS ALSO NOTICED THAT THE ASSESSEE CLAIMED BEFORE THE LD. CIT( A) THAT THE REPLY WAS SENT TO THE AO BY POST VIDE LATTER DATED 20.11.2007 WHICH WAS NOT CONSIDERED BY HIM . HOWEVER, T HE LD. CIT(A) IS SILENT ON THE SAID SUBMISSIONS OF THE ASSESSEE AND EVEN WHEN THE ASSESSEE FURNISHED THE EVIDENCE FOR MAKING THE INVESTM ENT IN THE FORM OF BANK ACCOUNT, T HE LD. CIT(A) HAS NOT GIVEN ANY COGNIZANCE TO THE SAME. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO ITA NO. 3972 /DEL /2013 AMITAVA ROY 5 BE ADJUDICA TED AFRESH IN ACCORDANC E WITH LA W AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 07 /01/2015 ) SD/ - SD/ - (GEORGE GEORGE K. ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 /01/2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATE D ON 0 7 .01.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 0 7 .01.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEME NT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.