Sher Singh, Gurgaon V. ITO WARD -4(2), Gurgaon

ITA 4182/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0111 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV PUNDIR
• Assessee Lawyers: VED BHANU ARYA
• Keywords: Unexplained cash credit; Principle of natural justice; Reasonable cause; Set aside
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI SMC-2 BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.4182/DEL/2019 ASSESSMENT YEAR : 2010-11 SHER SINGH, C/O-VED BHANU ARYA, ADV., H.NO.7, FRIENDS COLONY, JHARSA ROAD, GURGAON, HARYANA-122001. PAN-BWDPS8994R VS I T O, WARD-4(2), GURGAON APPELLANT RESPONDENT APPELLANT BY SH. VE D BHANU ARYA, ADV. RESPONDENT BY SH.GAURAV PUNDIR, SR. DR DATE OF HEARING 19.07.2021 DATE OF PRONOUNCEMENT 23 .07.2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2010-11 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-1, GURGAON DATED 26.02.2019. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. 'THAT THE IMPUGNED ORDER OF CIT (APPEALS)-1, GUR UGRAM, UPHOLDING THE ADDITIONS MADE BY THE ASSESSING OFFIC ER, ITO WARD-4(2), GURUGRAM, THEREBY CREATING A DEMAND OF RS.18,86,120/- ON ACCOUNT OF TAX AND INTEREST DUE T HEREON VIS 144 R.W. SEC. 147 OF THE INCOME TAX ACT, 1961 IS AR BITRARY, UNJUSTIFIED, UNFAIR AND AGAINST THE PRINCIPLES OF N ATURAL JUSTICE. 2. THAT THE BEST JUDGMENT ASSESSMENT ORDER OF THE I TO WARD - 4(2), GURUGRAM CREATING THE DEMAND OF RS.18,86,120/ - IS GROSSLY UNJUSTIFIED SINCE THE NOTICES PURPORTED TO HAVE BEEN SENT BY THE ASSESSING OFFICER WERE NEVER RECEIVED BY THE APPELLANT, THEREBY MAKING THE CONTENTION OF THE ASSESSING OFFI CER THAT THE ITA NO.4182/DEL/2019 2 | P A GE APPELLANT WAS 'DELIBERATELY AVOIDING THE ASSESSMENT PROCEEDINGS' UNFOUNDED. 3. THAT THE UPHOLDING OF THE ORDER OF THE ASSESSING OFFICER BY THE LD. CIT (APPEALS)-L, GURUGRAM, IS GROSSLY UNJUSTIFI ED AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE, SINCE THE SAME I S ALSO BASED ON THE BELIEF 'THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL'. IN THE INSTANT CASE, THE NOTICES CLAIMED T O HAVE BEEN SENT BY THE DEPARTMENT INTIMATING THE APPELLANT ABO UT THE DATE OF HEARING OF THE APPEAL WERE NEVER RECEIVED BY THE APPELLANT, THEREBY RENDERING THE BELIEF OF THE LD. CIT (APPEAL S)-1, GURUGRAM INCORRECT. IT IS PERTINENT TO NOTE THAT IF THE APPE LLANT WAS 'NOT INTERESTED IN PURSUING THE APPEAL', THEN HE WOULD N OT HAVE FILED THE APPEAL IN FIRST PLACE. 4. THAT THE ASSESSING OFFICER GROSSLY ERRED IN CONS IDERING THE CASH DEPOSIT OF RS.25,00,000/- BY THE APPELLANT INTO HIS BANK ACCOUNT NO. 2041101004797 WITH CANARA BANK, HAILY M ANDI, GURUGRAM, AS UNEXPLAINED CREDIT VIS 69 OF THE INCOM E TAX ACT, 1961, SINCE THE AMOUNT OF CASH DEPOSITED BY THE APP ELLANT INTO HIS BANK ACCOUNT COMPRISED PRIMARILY OF CASH RECEIV ED BY THE APPELLANT BY WAY OF ADVANCE AGAINST AGREEMENTS FOR SALE OF IMMOVABLE PROPERTY OWNED AND POSSESSED BY HIM. THE SUMMARY OF THE CASH DEPOSIT OF RS.25,00,000/- BY TH E APPELLANT INTO HIS SAID BANK ACCOUNT IS AS FOLLOWS: ADVANCE RECEIVED AGAINST AGREEMENT FOR SALE RS.22,0 0,000/- PROCEEDS FROM SALE OF LIVESTOCK RS. 1,40,000/- ACCUMULATED SAVINGS RS. 1,60,000/- TOTAL RS.25,00,000/- 5. THAT DENYING THE APPELLANT TO EXPLAIN THE PERCE IVED 'UNEXPLAINED CREDITS U/S 69 OF THE INCOME TAX ACT, 1961' AS FALSELY CONCLUDED BY THE ASSESSING OFFICER AND UPHE LD BY CIT (APPEALS) - 1, GURUGRAM WOULD BE A GROSS MISCARRIAG E OF JUSTICE, SINCE THE REALITY OF THE CASE AS INDICATED HEREINAB OVE CLEARLY ITA NO.4182/DEL/2019 3 | P A GE PROVE THAT EVERY PENNY DEPOSITED BY THE APPELLANT I NTO HIS SAID BANK ACCOUNT CAN BE EXPLAINED AND ACCOUNTED FOR AND THAT THERE EXISTS NO UNEXPLAINED AND ILLEGITIMATE DEPOSIT OF C ASH BY THE APPELLANT INTO HIS BANK ACCOUNT RENDERING THE DEPOS IT PUNISHABLE UNDER THE PROVISIONS OF THE INCOME TAX A CT, 1961. 6. THAT THE APPELLANT HEREIN CRAVES FOR YOUR LEAVE TO RESERVE HIS RIGHT TO ADD TO, ALTER, AMEND OR MODIFY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF THE HEARING THEREOF. 7. THAT IN THE LIGHT OF THE EXPLANATIONS PROVIDED H EREINBEFORE, THE ORDER OF THE ASSESSING OFFICER AS UPHELD BY THE LD. CIT (APPEALS)-1, GURUGRAM IS BAD AND NEEDS TO BE QUASHE D. 2. FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE CASE OF THE ASSESSEE WAS RE-OPENED ON THE GROUND THAT THE ASSES SEE HAD DEPOSITED CASH IN SAVING BANK ACCOUNT HELD WITH CANARA BANK A MOUNTING TO RS.55,90,000/- DURING THE FINANCIAL YEAR 2009-10 RE LEVANT TO ASSESSMENT YEAR 2010-11. A NOTICE U/S 148 OF THE INCOME TAX A CT, 1961 (THE ACT) WAS ISSUED ON 27.03.2017. HOWEVER, IN RESPONSE TO THE NOTICE, NO REPRESENTATION WAS MADE ON BEHALF OF THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER PROCEEDED TO MAKE ADDITION OF RS. 25,00,000/- DEPOSITED IN THE BANK ACCOUNT. 3. AGGRIEVED AGAINST THIS, THE ASSESSEE PREFERRED A PPEAL BEFORE LD.CIT(A). BEFORE LD.CIT(A) ALSO, THERE WAS NO RE PRESENTATION ON BEHALF OF THE ASSESSEE. THEREFORE, LD.CIT(A) DISMISSED THE A PPEAL OF THE ASSESSEE. 4. NOW, THE ASSESSEE PREFERRED PRESENT APPEAL BEFOR E THIS TRIBUNAL. 5. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A RETIRED ARMY PERSONNEL AND AT THE RELEVANT TIME, HE WAS POS TED AT VARIOUS PLACES. ITA NO.4182/DEL/2019 4 | P A GE HE COULD NOT RECEIVE THE NOTICE AS SENT BY THE REVE NUE. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE INTEREST OF PRINCIPL ES OF NATURAL JUSTICE AND IN THE FAIR PLAY, THE MATTER MAY BE REMANDED BACK T O THE LD.CIT(A) TO SUB- SERVE THE PRINCIPLES OF NATURAL JUSTICE. 6. ON THE CONTRARY, LD. SR. DR OPPOSED THESE SUBMIS SIONS AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 7. I HAVE HEARD CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. I FIND THAT THE ASSESSEE HAS D EMONSTRATED REASONABLE CAUSE OF NON-ATTENDING THE PROCEEDINGS BEFORE THE A UTHORITIES BELOW. THEREFORE, THE IMPUGNED ORDER IS SET ASIDE AND THE GROUNDS RAISED BY THE ASSESSEE ARE RESTORED TO LD.CIT(A) TO DECIDE THE AP PEAL AFRESH AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. HOWEVER, T HE ASSESSEE IS HEREBY DIRECTED NOT TO SEEK ADJOURNMENT WITHOUT ANY REASON ABLE CAUSE. THE ASSESSEE IS FURTHER DIRECTED TO APPEAR SUO MOTTO BEFORE LD.CIT(A) AFTER OBTAINING THE ORDER OF THE TRIBUNAL. THUS, GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES . 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRT UAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 23 RD JULY, 2021. SD/- (KUL BHARAT) JUDICIAL MEMBER *AMIT KUMAR* ITA NO.4182/DEL/2019 5 | P A GE COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI