Ms. Neelam Dhillon, New Delhi V. ITO, New Delhi

ITA 4158/DEL/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0222 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 11-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 22-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH SONKAR SENIOR
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4158/DEL./2009 (ASSESSMENT YEAR : 2005-06) MS. NEELAM DHILLON, VS. ITO, WARD 22 (4), E-13/7, VASANT VIHAR, NEW DELHI. NEW DELHI. (PAN : AMRPD4566F) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI PIYUSH SONKAR, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT (APPEALS)- XXIII, NEW DELHI DATED 14.9.2009. THE GROUNDS OF APPEAL READ AS UNDER :- 1. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN NOT QUASHING ASSESSMENT U/S 144. 2. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS PRESUMED THAT THE APPELLANT WAS AWARE OF CONTENTS O F THE NOTICE INSPITE OF THE FACT THAT NO NOTICE WAS SERVED ON HE R. 3. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAI LED TO APPRECIATE THAT INVESTMENT OF RS.26 LAKH HAS BEEN M ADE BY THE FATHER OF THE APPELLANT WHO HAS DISCLOSED THE SAME IN HIS RETURN. ITA NO.4158/DEL./2009 2 4. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAI LED TO TAKE COGNIZANCE OF THE ASSESSMENT HAVING BEEN MADE IN THE HANDS OF FATHER OF THE APPELLANT. 5. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT ACCEPTED THE REPORT OF THE INCOME TAX OFFICER U/S 2 50 (4) OF THE INCOME TAX ACT. 6. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT INVESTMENT OF RS.91AKH IN MUTUAL FU ND IS OF HER HUSBAND SHRI T.5 WALIA WHERE SHE IS SECOND HOLDER. 7. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAI LED TO APPRECIATE THAT THE INVESTMENT OF RS.9 LAKH MADE IN THE MUTUAL FUND OF FRANKLIN TEMPELTON HAS BEEN WRONGLY INCLUDED BOT H IN APPELLANT AS WELL AS HER HUSBANDS HAND. 8. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS MADE THE ORDER ON PRESUMPTIONS, SUSPICION, SURMISES, CON JECTURES AND WITHOUT APPRECIATING THE SUBMISSIONS MADE. 9. APPELLANT CRAVES LEAVE TO ADD AMEND THE GROUNDS OF APPEAL. 2. THE ASSESSEE IS AN INDIVIDUAL AND A CANADIAN NAT IONAL. THE ASSESSING OFFICER MADE ASSESSMENT U/S 144 OF THE INCOME-TAX A CT. THE CASE WAS SELECTED FOR SCRUTINY ON ACCOUNT OF INVESTMENT IN THE MUTUAL FUN D. THE CIT (A) ASKED A REMAND REPORT FROM ASSESSING OFFICER WHICH READ AS UNDER : - IN COMPLIANCE TO THE DIRECTION ISSUED U/S 250(4), A LETTER TO THE ASSESSEE WAS WRITTEN ON 09/07/2009 ASKING CERTAIN I NFORMATION. IN PERUSAL OF THE REPLY FILED BY THE A RS. OF THE ASSE SSEE IT APPEARS THAT THE INVESTMENTS TO THE EXTENT OF RS.26 LAKHS BELONG S TO THE ASSESSEE AND REMAINING RS.9 LAKHS BELONGS TO THE HUSBAND OF THE ASSESSEE. THE NECESSARY PAPERS FILED BY THE ASSESSEE APPEARS TO BE IN ORDER (COPY OF PAPER ENCLOSED). AS REGARD TO THE FILING OF RETURN OF INCOME IN CANA DA THE ASSESSEE WAS ASKED ABOUT IT. BUT THE A RS. EXPRESSED HIS IN ABILITY TO FILE ANY PROOF IN THIS REGARD. ITA NO.4158/DEL./2009 3 HOWEVER, WHILE DECIDING THE APPEAL THE LEARNED CIT (A) HAS STATED THAT ASSESSEE HAS MADE CONTRADICTORY SUBMISSIONS WHICH HE HAS NARRATE D AS FOLLOWS :- (I) IN THE FIRST STAGE OF THE APPEAL BEING HEARD, T HE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE STATED TH AT THE ENTIRE FUNDS FOR INVESTMENT IN MUTUAL UNITS HAD COME FROM THE RE TIRED FATHER OF THE ASSESSEE, SHRI H.S. DHILLON. HOWEVER, IN THE CO NFIRMATION FILED, HE HAS ONLY MENTIONED RS.26 LACS AS HIS INVESTMENT. (II) IN THE REMAND REPORT, THE LEARNED ASSESSING OF FICER STATED THAT RS.26 LACS OF INVESTED AMOUNT BELONGED TO THE ASSES SEE AND THE BALANCE OF 9 LACS BELONGED TO THE HUSBAND OF THE AS SESSEE, SHRI T. S. WALIA. THE ASSESSEE, HAD ALSO FILED, A CONFIRMATION , ACCORDINGLY, BEFORE THE LEARNED ASSESSING OFFICER. THIS REMAND R EPORT HAD BEEN GIVEN TO THE LEARNED AUTHORISED REPRESENTATIVE OF T HE ASSESSEE, ALONG WITH THE NOTICE DATED 23.07.2009, VIDE REGISTERED A /D., FIXING THE CASE FOR 08.09.2009. DURING THE COURSE OF HEARING, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE DID NOT F ILE A REJOINDER THAT RS.26 LACS INVESTMENT HAD NOT COME FROM THE AS SESSEE, AS ORIGINALLY SUBMITTED BY HIM, ON 12.11.2008. NOR DID HE ALLUDE TO THE SOURCE OF INVESTMENT MADE BY THE HUSBAND OF THE ASS ESSEE, SHRI T. S. WALIA. (III) IN FACT, ON 08.09.2009, THE LEARNED AUTHORISE D REPRESENTATIVE OF THE ASSESSEE RE-ITERATED THAT THE ENTIRE SOURCE OF INVESTMENT HAD COME FROM THE FATHER OF THE ASSESSEE, WHO WAS ASSES SED TO TAX WITH ITO, WARD 24(4), NEW DELHI. 3. NONE ATTENDED ON BEHALF OF THE ASSESSEE. THE LE ARNED DR WAS HEARD. 4. FROM THE RECORDS, WE ALSO FIND THAT THERE IS AN ORDER OF CIT (A)-XXIII, NEW DELHI DATED 9.9.2009 IN THE CASE OF SHRI TEJBIR SIN GH WALIA WHEREIN THE INVESTMENT IN MUTUAL FUND HAS BEEN ACCEPTED AND THE TOTAL INVE STMENT WAS OF RS.28 LACS. THE DETAILS ARE ALSO AVAILABLE AT PAGES 16 & 17 OF THE PAPER BOOK. THE OTHER DETAILS AVAILABLE AT PAGE 1 & 2 ARE REGARDING THE INVESTMEN T OF NEELAM DHILLON, OF RS.34 LACS. THE ASSESSEES CLAIM THAT INVESTMENT OF RS.9 LACS HAD BEEN DONE BY HER HUSBAND SHRI T.S. WALIA IS NOT COMING OUT OF FACTS AVAILABLE ON RECORD BUT THE FACTS ITA NO.4158/DEL./2009 4 SHOW A DIFFERENT PICTURE. THE THREE INVESTMENTS OF RS.3 LAC EACH SHOWING NAME OF NEELAM DHILLON WERE MADE ON 13.8.2004, 14.7.2004 AN D 6.9.2004. THE LINE AND RRR NO. OF THESE TRANSACTIONS WERE 127178, 127176 A ND 127180. WHILE THE LIST OF TRANSACTIONS MADE BY SHRI TEJBIR SINGH WALIA, HUSBA ND OF THE ASSESSEE AVAILABLE AT PAGE 16 & 17 OF PAPER BOOK SHOWS THAT THREE INVESTM ENTS WERE MADE BY HIM ON 14.7.2004, 6.9.2004 AND 13.8.2004 AND LINE NO. AND RRR NO.. ARE 127175, 127179 AND 127177 RESPECTIVELY. SIMILARLY, THE ASSESSMENT ORDER OF SHRI H.S. DHILLON, FATHER OF ASSESSEE AVAILABLE AT PAGE 7 OF THE PAPER BOOK DOES SPEAK ABOUT THE INVESTMENTS MADE AS CLAIMED. COPY OF THE BANK ACCO UNT AVAILABLE AT PAGE 3 OF THE PAPER BOOK SHOWS THAT THE ACCOUNT WAS IN THE NAME O F NEELAM DHILLON AT KOTAK MAHINDRA BANK, NEW DELHI. ALL THESE FACTS SHOW THA T THE CORRECT FACTS HAVE NOT BEEN BROUGHT ON RECORD AND WHATEVER FACTS AVAILABLE HAVE NOT BEEN APPRECIATED BY THE AUTHORITIES BELOW. THEREFORE, IN THE INTEREST OF JUSTICE AND EQUITY, WE SET ASIDE THE ORDER OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE DE NOVO AFTER PR OVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 11 TH DAY OF MARCH, 2011 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (RAJPAL YADAV) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 11 TH DAY OF MARCH, 2011/TS ITA NO.4158/DEL./2009 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XXI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.