DCIT, Meerut V. Dr. Gopal Das Agarwal, Mathura

ITA 4019/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3727 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 17-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NAVEEN CHANDRA
• Keywords: Unexplained investment; Opportunity of being heard; Corroborative evidences
• Section: 69; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'C, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NOS. 4017 & 4019/DEL/2015 A.YRS. 2005-06 & 2011-12 DCIT, VS. DR. GOPAL DAS AGARWAL, CENTRAL CIRCLE, BHARATPUR GATE, MEERUT MATHURA (PAN: AAVPA3099C) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. NAVEEN CHANDRA, CIT(DR) ASSESSEE BY : NONE ORDER PER H.S. SIDHU, JM : THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST T HE RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEA LS), MEERUT PERTAINING TO ASSESSMENT YEARS 2005-06 & 2011-12. S INCE THE ISSUES INVOLVED IN THESE APPEALS, ARE COMMON AND IDENTICAL , HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY TH IS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 40 17/DEL/2015 (AY 2005-06). THE GROUNDS RAISED IN ASSESSMENT YEAR 2005-06 ARE REPRODUCED BELOW:- 1. THAT LD. CIT{A} HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,08,011/- MADE BY THE A.O. 2 U/S 41{1} WITHOUT APPRECIATION OF THE FACT THAT PRI MARY ONUS ON PROVING ANY EXPENSES DEBITED IN ITS/HIS BOO K OF ACCOUNT LIES WITH ASSESSEE WHICH HE FAILED TO DISCH ARGE. 2. THAT LD. CIT{A} HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 34,23,600/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69 WITH TOTAL DISREGARD OF THE PROVISIONS OF SECTION292C(1} OF THE I.T.ACT. 3. THAT LD. CLT{A} HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION ON ACCOUNT OF DISALLOWANCES O F ADHOC EXPENSES OF RS. 3,69,806/- AND UNEXPLAINED INVESTMENT OF RS. 34,23,600/- U/S 69 HOLDING THAT A .O. HAS NOT MADE PROPER ENQUIRY WITHOUT MAKING ENQUIRY HIMSELF IN TERMS OF SECTION 250{4} OF THE I.T. ACT, 1961 IGNORING THE JUDGMENT OF HON'BLE HIGH COURT OF DELH I IN ITA NO. 525 OF 2014 IN THE CASE OF CLT-LI NEW DELHI VS M/S JANSARNPARK ADVERTISING AND MARKETING {P} LTD. & ANR. 4. THAT LD. CLT{A} HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION IN FIXED ASSETS TO THE TUNE O F RS. 7,69,694/- WITHOUT APPRECIATION OF THE FACT THAT ASSESSEE FAILED TO PRODUCE ANY BILL/VOUCHER OF SUPPORTING EVIDENCE IN SUPPORT OF HIS CLAIM. 5. THAT THE ORDER OF THE LD. CIT{A} BEING ERRONEOUS IN LAW AND ON FACTS WHICH NEEDS TO BE VACATED AND T HE ORDER OF THE A.O. BE RESTORED. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANYONE OR MORE OF THE GROUND OF THE APPEAL AS STATE D ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 1.1 THE GROUNDS RAISED IN ASSESSMENT YEAR 2011-12 READ AS UNDER:- 3 1. THAT LD. CIT{A} HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.6,10,260/- MADE BY THE A.O. U/S 41{1} WITHOUT APPRECIATION OF THE FACT THAT PRI MARY ONUS ON PROVING ANY EXPENSES DEBITED IN ITS/HIS BOO K OF ACCOUNT LIES WITH ASSESSEE WHICH HE FAILED TO DISCH ARGE. 2. THAT LD. CIT{A} HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 46,78,318/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69 WITH TOTAL DISREGARD OF THE PROVISIONS OF SECTION292C(1} OF THE I.T.ACT. 3. THAT LD. CLT{A} HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION ON ACCOUNT OF DISALLOWANCES O F ADHOC EXPENSES OF RS. 7,49,309/- AND UNEXPLAINED INVESTMENT OF RS. 46,78,318/- U/S 69 HOLDING THAT A .O. HAS NOT MADE PROPER ENQUIRY WITHOUT MAKING ENQUIRY HIMSELF IN TERMS OF SECTION 250{4} OF THE I.T. ACT, 1961 IGNORING THE JUDGMENT OF HON'BLE HIGH COURT OF DELH I IN ITA NO. 525 OF 2014 IN THE CASE OF CLT-LI NEW DELHI VS M/S JANSARNPARK ADVERTISING AND MARKETING {P} LTD. & ANR. 4. THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACT IN DELETING THE ADDITION U/S. 69 BY SUBSTITUTING HIS O WN SATISFACTION IN PLACE OF AOS SATISFACTION AS REQUI RED BY PROVISION OF SECTION 69 OF THE I.T. ACT. 5. THAT THE ORDER OF THE LD. CIT{A} BEING ERRONEOUS IN LAW AND ON FACTS WHICH NEEDS TO BE VACATED AND T HE ORDER OF THE A.O. BE RESTORED. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANYONE OR MORE OF THE GROUND OF THE APPEAL AS STATE D ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 4 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE N OT DISPUTED HERE, HENCE, THE SAME ARE NOT REPEATED FOR THE SAKE OF BR EVITY. 3. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 4. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INV OLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE W OULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THERE FORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEAR ING THE LD. DR AND PERUSING THE RECORDS. 5. WE HAVE HEARD LD. DR AND PERUSED THE RECORDS, E SPECIALLY THE ORDERS OF THE AUTHORITIES BELOW. ON GOING THROUGH T HE FINDINGS OF THE LD.CIT(A) MADE IN THE IMPUGNED ORDER AS WELL AS THE FINDING OF THE ASSESSING OFFICER MADE IN THE ASSESSMENT ORDER, WE FIND THAT AO HAS MADE THE ADDITION U/S. 41(1) OF THE ACT AMOUNTING T O RS. 1,08,011/- AND LD. CIT{A} HAS DELETED THE SAME WITHOUT APPRECIATIO N OF THE FACT THAT PRIMARY ONUS ON PROVING ANY EXPENSES DEBITED IN ITS /HIS BOOK OF ACCOUNT LIES WITH ASSESSEE WHICH HE FAILED TO DISCHARGE. T HEREFORE, IN OUR CONSIDERED OPINION, THE MATTER NEEDS TO BE REMITTED BACK TO THE FILE OF THE AO TO VERIFY THE EXPENSES AND DECIDE THE ISSUE IN DISPUTE AFRESH, AFTER 5 GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. WE HOLD AND DIRECT ACCORDINGLY. HOWEVER, THE ASSESSEE IS ALSO DIRECTED TO PRODUCE ALL THE EVIDENCES WITH REGARD TO THESE EXPENSES BEFORE THE AO AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. 5.1 WE FURTHER FIND THAT LD. CIT{A} WHILE DELETING THE ADDITION OF RS. 34,23,600/- ON ACCOUNT OF UNEXPLAINED INVESTMEN T U/S 69 IS WITH TOTAL DISREGARD OF THE PROVISIONS OF SECTION 292C(1} OF T HE I.T.ACT, BECAUSE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION ON AC COUNT OF DISALLOWANCES OF ADHOC EXPENSES OF RS. 3,69,806/- AND UNEXPLAINED INVESTMENT OF RS. 34,23,600/- U/S. 69 OF THE ACT HOLDING THAT AO HAS NOT MADE PROPER ENQUIRY WITHOUT MAKING ENQUIRY HIMSELF IN TERMS OF SECTION 250(4) OF THE I.T. ACT, 1961 IGNORING THE JUDGMENT OF HONBLE HIG H COURT IN ITA NO. 525 OF 2014 IN THE CASE OF CIT-II, NEW DELHI VS. M/S JA NSAMPARK ADVERTISING AND MARKETING (P) LTD. & ANR. THEREFORE, IN THE INT EREST OF JUSTICE, WE REMIT BACK THIS ISSUE TO THE FILE OF THE AO TO DECI DE THE SAME AFRESH, UNDER THE LAW AND IN VIEW OF THE HONBLE HIGH COURT DECISION, AS CITED ABOVE, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 5.2 WE FURTHER NOTE THAT LD. CIT(A) ALSO DELETED THE ADDITION IN FIXED ASSETS TO THE TUNE OF RS. 7,69,694/- WITHOUT APPR ECIATION OF THE FACT THAT ASSESSEE FAILED TO PRODUCE ANY BILL / VOUCHER OF SU PPORTING EVIDENCE IN SUPPORT OF HIS CLAIM, WHICH IS NOT SUSTAINABLE IN T HE EYES OF LAW. HOWEVER, IN THE INTEREST OF JUSTICE, WE REMIT BACK THIS ISSUE TO THE FILE OF 6 THE AO TO DECIDE THE SAME AFRESH, UNDER THE LAW, AF TER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. FOLLOWING THE CONSISTENT VIEW AS TAKEN IN ITA NO . 4017/DEL/2015 (AY 2005-06), THE GROUNDS RAISED IN ITA NO. 4019/DE L/2015 (AY 2011-12) ARE ALSO SET ASIDE TO THE FILE OF THE AO WITH THE S IMILAR DIRECTIONS, AS AFORESAID. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE VENUE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 23/10/2017. SD/- SD/- (L.P. SAHU) (H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:23/10/2017 'SRBHATNAGAR' COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES