VIKAS KUMAR, GURGAON V. ITO, WARD- 4(5), GURGAON

ITA 4129/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5139 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 30-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR ANJULA JAIN
• Assessee Lawyers: RAMESH RAHEJA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 133(6); 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.4129/DEL./2018 ASSESSMENT YEAR 2014-15 VIKAS KUMAR C/O RAHEJA & CO., CA, 139, HUDA, SECTOR-11, PANIPAT, HARYANA BAZPK9070L VS. INCOME TA X OFFICER, WARD 4(5), GURGAON (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI RAMESH RAHEJA, CA FOR REVENUE : DR. ANJULA JAIN, SR. DR DATE OF HEARING : 17.10.2018 DATE OF PRONOUNCEMENT : 24 .10.2018 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD.CIT(A)-1, GURGAON DATED 15.03.2018 FOR AY 2014- 15. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 19,90,960/- . THE ASSESSEE ALSO DECLARED NET AGRICULTURAL INCOME OF R S. 2 ITA.NO.4129/DEL./2018 28,20,828/- IN HIS RETURN OF INCOME. THE ASSESSEE S REPRESENTATIVE ATTENDED THE ASSESSMENT PROCEEDINGS AND FILED NECESSARY INFORMATION AND DETAILS WHICH WERE PLACED ON RECORD BY THE AO. THE ASSESSEE ALSO FILED WRITTEN SUBMISS ION ALONG WITH NECESSARY DOCUMENTS. THE AO NOTED THAT ASSESS EE WAS ASKED TO PROVIDE DETAILS OF AGRICULTURE INCOME SHOW N, COPY OF PROOF OF LAND HOLDING, PROOF OF AGRICULTURE PRODUCE IN THE FORM OF FIRD, JAMABANDI, FORM J ETC. AND DETAILS OF EXPE NDITURE SUPPORTED BY THE DOCUMENTARY EVIDENCE. NO COMMUNIC ATION WAS RECEIVED FROM THE SIDE OF THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FILED REPLY STATING THEREIN THAT HE WAS IN POSSESSION OF APPROXIMATELY 20 ACRES OF LAND TAKEN ON LEASE FROM S/SH. ATAL SINGH, SURESH K UMAR, OM PAL ALL SONS OF SHRI ROOP CHAND OF VILLAGE BAHRA MPUR, DISTRICT PANIPAT. THE ASSESSEE ALSO SUBMITTED COPI ES OF FORM J AMOUNTING TO RS. 28,20,828/- RECEIVED FROM DIFFER ENT MANDIS FOR SALE OF CROPS. THE AO ISSUED NOTICE U/S 133(6) OF THE ACT TO THE ABOVE THREE PERSONS FOR VERIFICATION BUT THERE WAS NO REPLY RECEIVED. THE ASSESSEE WAS ASKED TO P RODUCE ALL 3 ITA.NO.4129/DEL./2018 THE ABOVE PERSONS ALONG WITH THEIR IDS AND RELEVANT DOCUMENTS IN SUPPORT OF THE CLAIM OF ASSESSEE. THE ASSESSEE ALSO EXPLAINED THAT OUT OF IGNORANCE, ASSESSEE FILE D AGRICULTURE INCOME OF RS. 28,20,828/- INSTEAD OF RS. 8,04,226/- . THE ASSESSEE FILED REPLY TO THE SHOW CAUSE NOTICE IN WH ICH IT WAS SUBMITTED THAT ALL CONFIRMATIONS FROM THE RELEVANT PARTIES ARE FILED, NET AGRICULTURE INCOME IS RS. 8,04,226/- AND REVISED COMPUTATION OF INCOME WAS ALSO FILED. THE AO, HOWE VER, NOTED THAT NO ORIGINAL DOCUMENTS HAVE BEEN PRODUCED. THE COPIES ARE NOT HAVING BACK PAGE, WHERE DATE OF STAMP PAPER IS MENTIONED. THERE IS NO SIGNATURE OF THE WITNESS. THE SIGNATURE APPEARS ONLY OF SURESH KUMAR. FORM J HAV E BEEN PRODUCED FOR THE PERIOD PRIOR TO THE EXECUTION OF T HE AGREEMENT. NO REPLY HAS BEEN RECEIVED U/S 133(6) O F THE ACT FOR THE ABOVE THREE PERSONS AND NONE OF THEM HAVE B EEN PRODUCED FOR EXAMINATION. THE AO, ACCORDINGLY, REJ ECTED THE EXPLANATION OF THE ASSESSEE AND TREATED THE AGRICUL TURE INCOME OF RS. 28,20,828/- AS INCOME FROM OTHER SOURCES AND MADE THE ADDITION. 4 ITA.NO.4129/DEL./2018 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(A). THE LD.CIT(A) RECORDED THAT TWICE COUNSEL FOR ASSES SEE APPEARED BEFORE HIM AND REQUESTED FOR ADJOURNMENT W HICH WAS GRANTED. ON 22.01.2018 AGAIN REQUEST WAS MADE FOR ADJOURNMENT WHICH WAS GRANTED AND THEREAFTER, ON OT HER DATES NOBODY ATTENDED THE APPELLATE PROCEEDINGS. THEREFO RE, APPEALS OF ASSESSEE WAS DECIDED ON MERITS ON THE BA SIS OF THE DOCUMENT ON RECORD. THE FINDINGS OF THE LD. CIT(A) IN PARA 3.3 OF THE ORDER IS REPRODUCED AS UNDER: 3.3 I HAVE CAREFULLY CONSIDERED THE FACTS RECORDED IN THE ASSESSMENT ORDER. THE ASSESSING OFFICER IN A DETAILED ORDER HAS CLEARLY ESTABLISHED THAT THE CLAIM OF AGRICULTURAL INCOME WAS NOT GENUI NE. THE APPELLANT HAS NOT BEEN ABLE TO CONTROVERT ANY O F THE FINDINGS BY THE ASSESSING OFFICER AS REPRODUCED ABOVE. THE ADDITION MADE BY THE ASSESSING OFFICER IS ACCORDINGLY CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. 4. THE ASSESSEE IN THE PRESENT APPEAL HAS CHALLENGE D THE ORDER OF LD. CIT(A) ON TWO GROUNDS THAT APPELLATE O RDER HAVE 5 ITA.NO.4129/DEL./2018 BEEN PASSED WITHOUT PROVIDING AN ADEQUATE OPPORTUNI TY OF BEING HEARD AND THAT ADDITION OF RS. 28,20,828/- IS UNJUSTIFIED. THE ASSESSEE ALSO FILED ADDITIONAL GR OUNDS OF APPEAL IN WHICH JURISDICTION OF THE AO IS CHALLENGE D ON THE GROUND THAT AO, WARD 54(4) DELHI HAS ERRED IN TRANS FERRING THE CASE TO THE ITO, WARD 4(4), GURGAON WITHOUT COMMUNI CATING THE REASONS RECORDED TO TRANSFER THE CASE U/S 127 O F THE ACT. THE ASSESSEE ALSO RAISED ADDITIONAL GROUND THAT ASS ESSMENT HAD BEEN FRAMED WITHOUT SERVING NOTICE U/S 143(2) O F THE ACT. 5. AFTER CONSIDERING THE RIVAL SUBMISSION, I AM OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEV EL OF THE LD. CIT(A). THE AO RECORDS FACTS IN THE ASSESSMENT OR DER THAT ASSESSEE FILED REQUIRED DETAILS AND DOCUMENTS AT AS SESSMENT STAGE. HOWEVER, THE EXPLANATION OF ASSESSEE HAS NO T BEEN ACCEPTED ON THE FINDING THEREIN MANY INCONSISTENCIE S, THAT THE OWNER OF THE AGRICULTURAL LAND WERE NOT PRODUCED FO R EXAMINATION, NO REPLY TO THE NOTICES U/S 133(6) OF THE ACT HAVE BEEN FILED BY THE CONCERNED PARTIES. HOWEVER, IT I S A FACT THAT 6 ITA.NO.4129/DEL./2018 ASSESSEE PRODUCED SOME DOCUMENTS BEFORE THE AO IN S UPPORT OF CLAIM OF AGRICULTURAL INCOME. IT WAS ALSO EXPLA INED BEFORE AO THAT INSTEAD OF SHOWING NET AGRICULTURAL INCOME IN THE RETURN OF INCOME ASSESSEE HAS SHOWN GROSS AGRICULTU RAL INCOME. REVISED COMPUTATION INCOME WAS ALSO FILED. THOUGH THE ASSESSEE ULTIMATELY DID NOT APPEAR BEFORE LD. C IT(A) AND LD.CIT(A) DECIDED THE APPEAL OF ASSESSEE EX-PARTE, THE LD.CIT(A) RECORDED IN HIS FINDINGS THAT APPEAL IS D ECIDED ON MERITS ON THE BASIS OF DOCUMENTS ON RECORD. HOWEVE R, THE LD. CIT(A) WITHOUT CONSIDERING THE DOCUMENTS ON RECORD PASSED THE ORDER IN SUMMARY MANNER DISMISSING THE APPEAL O F THE ASSESSEE WITHOUT GIVING REASONS FOR DECISION IN THE APPELLATE ORDER AS REQUIRED BY SECTION 250(6) OF THE ACT. TH E ASSESSEE IN THE PAPER BOOK HAS FILED COPIES OF THE SUBMISSIONS AND THE DOCUMENTS FROM PAGES 6 TO 82, WHICH WERE FILED BEFO RE THE AO. IT WOULD THEREFORE, REVEAL THAT DESPITE THE DOCUMEN TS WERE PART OF THE RECORD, THE LD. CIT(A) WITHOUT GIVING FINDIN GS ON THE SAME DOCUMENTS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING REASONS FOR DECISION ON THE SAME. THE ASSES SEE ALSO 7 ITA.NO.4129/DEL./2018 FILED AFFIDAVIT IN THE PAPER BOOK IN WHICH IT IS AF FIRMED THAT FOR THE LAST DATE OF HEARING ON 13.03.2018, NO NOTICE H AS BEEN SERVED UPON ASSESSEE OR HIS COUNSEL. THEREFORE, IT APPEARS TO ME THAT PRINCIPLE OF NATURAL JUSTICE HAVE BEEN VIOL ATED IN THE MATTER. NO FINDINGS HAVE ALSO BEEN GIVEN BY THE AU THORITIES BELOW AS TO WHETHER THE GROSS AGRICULTURAL INCOME I S TO BE TAXED OR THE NET AGRICULTURAL INCOME TO BE TAXED FO R THE PURPOSE OF HIGHER RATE OF TAX. THEREFORE, ORDER OF THE LD. CIT(A) CANNOT BE SUSTAINED IN LAW. THE MATTER REQU IRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). IN THIS VIEW OF THE MATTER, THERE IS NO NEED TO ADJUDICATE UPON ADD ITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE AND ASSESS EE WOULD BE AT LIBERTY TO RAISE SUCH ADDITIONAL GROUNDS BEFO RE LD. CIT(A), IF SO, ADVISED IN ACCORDANCE WITH LAW. 6. IN THIS VIEW OF THE MATTER, I SET ASIDE THE IMPU GNED ORDER AND RESTORE THE APPEAL OF THE ASSESSEE TO THE FILE OF LD.CIT(A) WITH DIRECTION TO RE-DECIDE APPEAL OF THE ASSESSEE STRICTLY ON MERITS GIVING REASONS FOR DECISION IN THE ORDER BY REFERRING TO 8 ITA.NO.4129/DEL./2018 ALL DOCUMENTARY EVIDENCES ON RECORD OF ASSESSMENT. LD. CIT(A) SHALL GIVE REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE AO. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI. DATED 24.10.2018 *KAVITA ARORA COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI. 9 ITA.NO.4129/DEL./2018 DATE OF DICTATION 17.10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2 4 . 10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS 24.10.18 DATE ON WHICH THE FAIR ORDER I S PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 24.10.18 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 24.10.18 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 24.10.18 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24.10.18 DATE ON WHICH THE FILE G OES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER