Sh. Manoj Mehra, Delhi V. ACIT, New Delhi

ITA 4036/DEL/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5717 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2004-2005
• Appeal Filed On: 17-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Opportunity of being heard; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI E BEN CH, NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER, ITA NO. 4036/DEL/2015 [ASSESSMENT YEAR: 2004-05] SHRI MANOJ MEHRA, 15A/16, AJMAL KHAN ROAD, KAROL BAGH, DELHI-110005 ACIT, CIRCLE-33(1), NEW DELHI, PAN - AAIPM1011B APPELLANT RESPONDENT ASSESSEE BY SHRI VED JAIN REVENUE BY SMT. RINKU SINGH DATE OF HEARING 05/08 /2019 DATE OF PRONOUNCEMENT 06 /08 /2019 ORDER PER T.S. KAPOOR, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-XVII, NEW DELHI, DATED 24/03/2015, PERTAININ G TO ASSESSMENT YEAR 2004-05. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THE AC TION OF THE LD. CIT(A) BY WHICH HE HAS CONFIRMED AN ADDITION OF RS.20,00,0 00/- WHICH HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF GIFTS R ECEIVED BY THE MINOR CHILDREN OF THE ASSESSEE. VIDE GROUND NO.2, THE AS SESSEE IS AGGRIEVED WITH THE ACTION OF THE LD. CIT(A) BY WHICH HE HAS N OT GIVEN APPROPRIATE AND ADEQUATE OPPORTUNITY OF BEING HEARD. 2 ITA NO.4036/DEL/2015 3. THE LD. AR, AT THE OUTSET, SUBMITTED THAT EARLIE R, THE LD. CIT(A) HAD ALLOWED RELIEF TO THE ASSESSEE BUT ON AN APPEAL FIL ED BY THE DEPARTMENT, THE TRIBUNAL HAD SET-ASIDE THE PROCEEDINGS TO THE A SSESSING OFFICER AND THE ASSESSING OFFICER AGAIN MADE THE ADDITIONS AND WHICH THE LD. CIT(A) HAS CONFIRMED DUE TO THE FACT THAT THE ASSESSEE WAS NOT ABLE TO PRESENT THE DONOR BEFORE THE ASSESSING OFFICER. THE LD. AR SUBMITTED THAT AT THAT POINT OF TIME THE RELATIONS OF THE DONORS WITH ASSE SSEE WERE NOT NORMAL BUT NOW THE RELATIONS ARE QUITE NORMAL AND THE DONO RS CAN BE PRODUCED BEFORE THE ASSESSING OFFICER AND THEREFORE, IT WAS PRAYED THAT THE MATTER MAY BE SET-ASIDE TO THE FILE OF THE ASSESSING OFFIC ER. 4. THE LD. DR VEHEMENTLY ARGUED THAT THE ASSESSEE H AD FAILED ON TWO OCCASIONS TO PRESENT THE DONOR AND THEREFORE, THE A SSESSEE HAS NO CASE AS THE GIFTS HAS BEEN RECEIVED BY MINOR CHILDREN OF THE ASSESSEE WHO HAD CONSIDERABLE INCOME, WHEREAS, THE DONORS HAD NEGLIG IBLE INCOMES THEREFORE, IT WAS PRAYED THAT THE GROUNDS OF APPEAL OF THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ASSESSE E DURING THE ASSESSMENT PROCEEDINGS, HAD CLAIMED LOANS AGGREGATI NG TO RS.20 LAKHS RECEIVED FROM HIS MINOR SON AND DAUGHTER WHO INTURN HAD CLAIM TO HAVE RECEIVED THROUGH GIFTS. THE AO TREATED THE AMOUNT O F ALLEGED GIFTS AS 3 ITA NO.4036/DEL/2015 UNEXPLAINED INCOME AND MADE THE ADDITION U/S 68 OF THE ACT. THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO AND THEREFORE , THE ASSESSEE FILED APPEAL BEFORE THE HONBLE ITAT AND ITAT REMITTED TH E MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE ISSUE AFRES H AFTER CONSIDERING THE MERITS OF THE CASE. THE LD. CIT(A) IN PURSUANCE OF DIRECTION OF ITAT, DECIDED THE APPEAL VIDE ORDER DATED 03/07/2009 IN F AVOUR OF THE ASSESSEE. HOWEVER, ON FURTHER APPEAL FILED BY THE D EPARTMENT, HONBLE ITAT VIDE ITS ORDER DATED 21/06/2011 REMITTED THE M ATTER BACK TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER CONSIDERING THE ME RITS OF THE CASE AND IN VIEW OF THE ORDER OF HONBLE ITAT, THE ASSESSING OF FICER AGAIN MADE ADDITIONS AND LD. CIT(A) CONFIRMED THE ADDITION. BE FORE THE LD. CIT(A), THE ASSESSEE ATTENDED ON 02/09/2014 TO RECORD HIS S TATEMENT BUT ON 02/09/2014, THE ASSESSEE DID NOT GET HIS STATEMENT RECORDED AND THEREFORE, THE CASE WAS ADJOURNED TO 08/10/2014 FOR RECORDING HIS STATEMENT. HOWEVER, ON 08/10/2014, THE ASSESSEE DI D NOT ATTEND AND THEREFORE ON THE BASIS OF PROCEEDINGS ON 02/09/2014 , THE LD. CIT(A) PASSED THE ORDER AGAINST THE ASSESSEE VIDE ORDER DA TED 24/03/2015, WHEREAS AFTER 08/10/2014, THE LD. CIT(A) DID NOT GI VE ANY OPPORTUNITY TO THE ASSESSEE TO GET HIS STATEMENT RECORDED. THOUGH IN THE PRESENT CASE A NUMBER OF OPPORTUNITIES HAS BEEN PROVIDED TO ASSESS EE AS THE MATTER WAS SET ASIDE TWICE BUT THE RECORDING OF STATEMENT OF A SSESSEE IS AN IMPORTANT PART OF ASSESSMENT PROCEEDINGS, THEREFORE, WE DEEM IT APPROPRIATE THAT 4 ITA NO.4036/DEL/2015 ONE MORE OPPORTUNITY BE GIVEN TO ASSESSEE AND THERE FORE WE SET-ASIDE THE ISSUE BACK TO THE ASSESSING OFFICER WHO SHOULD READJUDICATE THE ISSUE AFTER EXAMINATION OF DONORS AND AFTER EXAMINATION O F ASSESSEE BY GETTING HIS STATEMENT RECORDED. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE PROCEEDINGS AND IS FURTHER DIRECTED TO PRODUCE THE DONORS BEFORE THE ASSESSING OFFICER AT HIS OWN. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06/08/ 2019. SD/- SD/- [BHAVNESH SAINI] [T.S. KAPOOR] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 06/08/2019. F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI