Dinesh Kumar, Delhi V. ITO ward 39(1), New Delhi

ITA 4004/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8074 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings; Borrowed satisfaction; Set aside
• Section: 143(2); 69A; 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-I, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCE) ITA NO. 4004/DEL/2019 A.Y. : 2010-11 DINESH KUMAR, H.NO. 85, VILLAGE IBRAHIMPUR, NEAR BUS STAND, NEW DELHI 110 036 (PAN: BAUPK7776C) VS. ITO, WARD 39(1), NEW DELHI (APPELLANT) (RESPONDENT) ORDER PER H.S. SIDHU, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 28.03.2019 PASSED BY THE LD. CIT(A)-13, NEW DELHI IN RELATION TO ASSESSMENT YE AR 2010-11 ON THE FOLLOWING GROUNDS:- ASSESSEE BY MS. RANO JAIN, ADVOCATE & SH. PRANSHU SINGHAL, CA DEPARTMENT BY SHRI R.K. GUPTA, SR. DR. 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS BAD, BOTH IN THE EYE OF LA W AND ON THE FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER WITHOUT GIVING ASSESSEE A PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD IN CLEAR VIOLATION OF TH E PRINCIPLE OF NATURAL JUSTICE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE AO DESPITE THE FACT THA T THE INITIATION OF THE PROCEEDINGS UNDER SECTION 147 , READ WITH SECTION 148, IS BAD IN LAW AS THE CONDITI ON AND PROCEDURE PRESCRIBED UNDER THE STATUTE HAVE NOT BEEN SATISFIED AND COMPLIED WITH. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE AO DESPITE THE FACT THA T THE INITIATION OF THE PROCEEDINGS UNDER SECTION 147 , READ WITH SECTION 148, IS BAD IN LAW AS THE REASONS ON THE BASIS OF WHICH THE REASSESSMENT IS INITIATED HAS NO LIVE LINK BETWEEN THE MATERIAL AND THE BELIE F FORMED. 3 5. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE A.O. DESPITE THE SAME HAVING BEEN MADE ON THE BASIS OF REASONS RECORDED WITHOUT THERE BEING ANY INDEPENDENT APPLICATION OF MIND. (II) THAT THE REASSESSMENT ORDER PASSED BY THE A.O. IS BAD AND LIABLE TO BE QUASHED AS THE SAME HAS BEE N REOPENED ON THE BASIS OF THE REASONS WHICH ARE VAGUE AND HAS BEEN RECORDED ONLY ON BORROWED SATISFACTION. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE AO, IGNORING THE FACT T HAT MERE DEPOSITING CASH IN THE BANK ACCOUNTS DOES NOT TANTAMOUNT TO ESCAPEMENT OF INCOME. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE AO DESPITE THE FACT THA T THE REOPENING U/S 147 OF THE INCOME TAX ACT, 1961 IS BAD IN LAW HAVING BEEN MADE WITHOUT OBTAINING VALID APPROVAL FROM THE PRESCRIBED AUTHORITY AS REQUIRED U/S 151 OF THE INCOME TAX ACT, 1961. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE AO DESPITE THE FACT THA T 4 THE INITIATION OF THE REASSESSMENT PROCEEDINGS UNDE R SECTION 147, READ WITH SECTION 148, IS BAD IN LAW AS NOTICE U/S 143(2) WAS ISSUED BY THE A.O. ON THE SAME DATE ON WHICH RETURN OF INCOME WAS FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT, HENCE BEING ISSUED WITHOUT APPLICATION OF MIND. 9. (I). ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN L AW IN CONFIRMING THE ACTION OF THE AO IN MAKING AN ADDITION OF RS.20,OO,OOO/- ON ACCOUNT OF CASH DEPOSITS BY INVOKING THE PROVISIONS OF SECTION 69A R.W.S 115BBE OF THE ACT. (II). THAT THE ADDITION HAS BEEN CONFIRMED ARBITRARI LY REJECTING THE EXPLANATION AND EVIDENCES BROUGHT ON RECORD BY THE ASSESSEE TO PROVE THE SOURCE OF CASH. 10. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ACTION OF THE AO IN LEVYING TAX BY INVOKING THE PROVISIONS OF SECTION 115BBE OF THE AC T DESPITE THE FACT THAT THE PROVISIONS OF THE SAID SECTION ARE APPLICABLE W.E.F. AY 2013-14 AND NOT APPLICABLE TO THE YEAR UNDER CONSIDERATION. 11. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 5 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO R EPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, MS. RANO JAIN, ADVOCATE, LD. COUNSEL FOR THE ASSESSEE STATED THAT LD. FIRST AP PELLATE AUTHORITY HAS DECIDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE EXPARTE WITHOUT AFFORDING SUFFICIENT OPP ORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CASE. SHE REQU ESTED THAT THE ISSUES INVOLVED IN THE GROUNDS OF APPEAL MAY BE SET ASIDE TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. 4. ON THE CONTRARY LD. SR. DR STRONGLY OPPOSED THE R EQUEST OF THE LD. COUNSEL FOR THE ASSESSEE AND STATED THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE REVENUE AUTHORI TIES AND HAS ALSO NOT FILED ANY DOCUMENTARY EVIDENCE BEFORE THE ASSESSING OFFICER FOR SUBSTANTIATING HIS CLAIM AND REQUESTED THAT THE APPEAL FILED BY THE ASSESSE MAY BE DISMISS ED BY UPHOLDING THE IMPUGNED ORDER. 6 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IM PUGNED ORDER DATED 28.03.2019 PASSED BY THE LD. CIT(A)-13, NE W DELHI. WE ARE OF THE VIEW THAT LD. FIRST APPELLATE AUTHORITY HAS GIVEN AN OPPORTUNITY FOR HEARING TO THE ASSESSEE, BUT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. FIRST APPEL LATE AUTHORITY. BUT KEEPING IN VIEW OF THE FINDING GIVE N BY THE LD. CIT(A) IN PARA NO. 4.1 AT PAGE NO. 4 & 5 OF HIS IMP UGNED ORDER, WE ARE OF THE VIEW THAT LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE ON ACCOUNT OF NON-COMPLIANCE AND NON-PURSUANCE OF APPEAL BY RE SPECTFULLY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. BN BHATTACHARYA (1977) 118 ITR 461 (SC) AND DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. MULTIPLAN INDIAN PVT. LTD, REPORTED IN 38 ITD 320 (D ELHI). BUT WE ARE OF THE VIEW THAT NO DOUBT THAT THE LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE APPEAL EXPARTE ASSESSEE ON MERITS ALSO, BUT IN THE INTEREST OF JUSTICE THE SUFFICIENT OPPORTUNITY HAS NOT BEEN GIVEN FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE BY THE LD. FIRST APPELLATE AUTHORITY. THEREFORE, IN TH E INTEREST OF JUSTICE, WE ARE SETTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF 7 THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE SAM E AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. 6. KEEPING IN VIEW OF THE NON-COOPERATION OF THE ASS ESSEE BEFORE THE LD. CIT(A), WE ARE DIRECTING THE ASSESSEE THROUGH HIS COUNSEL TO APPEAR BEFORE THE LD. CIT(A) ON 10.11.2020 AT 10.00 AM FOR SUBSTANTIATING HIS CASE. THERE IS NO NEED TO ISSUE ANY NOTICE TO THE ASSESSEE FOR 10.11.2020, B ECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FO R STATISTICAL PURPOSES. THE DECISION IS PRONOUNCED ON 24.08.2020. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI