Mukthyar Singh Yadav, New Delhi V. ACIT Circle-66(1), New Delhi

ITA 4002/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2303 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Salary income; Principle of natural justice
• Section: 44AD; 68

Judgement Text

1 ITA NO. 4002/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2) + SM C NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 4002/DEL/2019 ( A.Y 2014-15) MUKTHYAR SINGH YADAV HONE NO. 606, RAJOKARI NEW DELHI PIN: 110075 PAN: ACVPY2698H (APPELLANT) VS ACIT CIRCLE-66 (1) NEW DELHI PIN 110001 (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. PRADEEP SINGH GAUTAM, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 28/01/2019 PASSED BY CIT(A)-21 FOR ASSESSMENT YEAR 2014-15. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORD ER PASSED BY THE LEARNED CIT(A) IS BAD, BOTH IN THE EYE OF LAW AND O N THE FACTS. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CI T(A) HAS ERRED BOTH ON FACTS AND IN LAW, IN REJECTING THE CONTENTION OF TH E ASSESSEE, THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF SALE OF MILK TO RETA IL CUSTOMERS AND WAS CARRYING THE SAME BUSINESS FROM THE LAST MANY YEARS & HAS BEEN ACCEPTED BY THE DEPARTMENT. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CI T(A) HAS ERRED BOTH ON FACTS AND IN LAW, IN REJECTING THE CONTENTION OF TH E ASSESSEE THAT THE ASSESSEE DATE OF HEARING 03.03.2020 DATE OF PRONOUNCEMENT 19.03.2020 2 ITA NO. 4002/DEL/2019 IS COVERED UNDER SECTION 44AD AND IS CARRYING ON AN ELIGIBLE BUSINESS AND IS NOT REQUIRED TO KEEP THE BOOKS OF ACCOUNTS. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID . CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING AN ADDITION OF RS. 5 ,71,000/- U/S 68 ON ACCOUNT OF PEAK CASH CREDIT REJECTING THE EXPLANATI ONS AND EVIDENCES FILED BY THE ASSESSEE. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CI T(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION MADE BY A.O. U/S 68 OF THE ACT, DESPITE THE FACT THAT ASSESSEE DOES NOT MAINTAIN BO OKS OF ACCOUNTS, HENCE NO ADDITION U/S 68 IS CALLED FOR. 3. THE ASSESSEE IS A GOVERNMENT EMPLOYEE AND FILED HIS INCOME TAX RETURN SHOWING SALARY INCOME, RENTAL INCOME AND INCOME FRO M OTHER SOURCES. THE ASSESSEE DECLARED INCOME OF RS. 24,93,020/-. THE A SSESSING OFFICER MADE ADDITION OF RS. 3,956/- IN RESPECT OF INCOME FROM H OUSE PROPERTY AND RS. 5,71,000/- IN RESPECT OF ADDITION U/S 68 OF THE IN COME TAX ACT, 1961 AS UNEXPLAINED CASH CREDIT. THE ASSESSING OFFICER FUR THER MADE ADDITION OF RS. 2,483/- IN RESPECT OF BALANCE INTEREST. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF TH E ASSESSEE. 5. NONE APPEARED ON BEHALF OF THE ASSESSEE AND THER E IS NO ADJOURNMENT APPLICATION ON BEHALF OF THE ASSESSEE. THE NOTICE HAS BEEN SERVED TO THE ASSESSEE. THEREFORE, WE ARE TAKING UP THE SUBMISSI ONS OF THE ASSESSEE BEFORE THE CIT(A) AS WELL AS BEFORE THE ASSESSING OFFICER . 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. THERE IS A DELAY OF 29 DAYS IN FILING THE PRESENT A PPEAL IS CONDONED. FROM THE PERUSAL OF THE ORDER OF THE CIT(A), IT IS NOT CLEAR THAT THE ASSESSEE HAD UNDERTAKEN SOME BUSINESS DURING THE ASSESSMENT YEAR AS THERE IS ONLY MENTION OF SECTION 44AD, BUT THERE IS NO MENTION OF NATURE OF BUSINESS. THE CIT (A) HAS ALSO NOT GIVEN ANY CATEGORICAL FINDING AS TO WHY THE SOURCES OF 3 ITA NO. 4002/DEL/2019 DEPOSITS MADE IN THE BANK ACCOUNTS REMAIN UNEXPLAIN ED. THEREFORE, IT WILL BE APPROPRIATE TO REMAND BACK THIS ISSUE TO THE FILE O F THE CIT (A) FOR FRESH ADJUDICATION. NEEDLESS TO SAY, THE ASSESSEE BE GIV EN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MARCH, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19/03/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. 4002/DEL/2019 DATE OF DICTATION 04.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 1 9 .03.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 9 .03.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 9 .03.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER