Raj Thakur, New Delhi V. ITO, New Delhi

ITA 4261/DEL/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7217 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 19-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 16-09-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL SENIOR
• Assessee Lawyers: G N GUPTA I T P
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68; 144; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH F FF F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO S SS S . .. . 4261/DEL/2010 & 103/DEL/2014 4261/DEL/2010 & 103/DEL/2014 4261/DEL/2010 & 103/DEL/2014 4261/DEL/2010 & 103/DEL/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR S SS S : : : : 2006 2006 2006 2006 - -- - 07 & 2007 07 & 2007 07 & 2007 07 & 2007 - -- - 08 0808 08 SHRI RAJ THAKUR, SHRI RAJ THAKUR, SHRI RAJ THAKUR, SHRI RAJ THAKUR, F FF F- -- -20, 20, 20, 20, 1 11 1 ST STST ST FLOOR, FLOOR, FLOOR, FLOOR, LAJPAT NAGAR, LAJPAT NAGAR, LAJPAT NAGAR, LAJPAT NAGAR, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 024. 110 024. 110 024. 110 024. PAN : AEAPT0676B. PAN : AEAPT0676B. PAN : AEAPT0676B. PAN : AEAPT0676B. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -32(3), 32(3), 32(3), 32(3), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NO .4292/DEL/2010 .4292/DEL/2010 .4292/DEL/2010 .4292/DEL/2010 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2006 2006 2006 2006 - -- - 07 0707 07 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -32(3), 32(3), 32(3), 32(3), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. SHRI SHRI SHRI SHRI RAJ THAKUR, RAJ THAKUR, RAJ THAKUR, RAJ THAKUR, F FF F- -- -20, 1 20, 1 20, 1 20, 1 ST STST ST FLOOR, FLOOR, FLOOR, FLOOR, LAJPAT NAGAR, LAJPAT NAGAR, LAJPAT NAGAR, LAJPAT NAGAR, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 024. 110 024. 110 024. 110 024. PAN : AEAPT0676B. PAN : AEAPT0676B. PAN : AEAPT0676B. PAN : AEAPT0676B. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.N. GUPTA, ITP. REVENUE BY : SHRI AMRIT LAL, SENIOR DR. DATE OF HEARING : 19.05.2016 19.05.2016 19.05.2016 19.05.2016 DATE OF PRONOUNCEMENT : 27.06.2016 27.06.2016 27.06.2016 27.06.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - ITA NO.4261/DEL/2010 ITA NO.4261/DEL/2010 ITA NO.4261/DEL/2010 ITA NO.4261/DEL/2010 ASSESSEES APPEAL FOR AY 2006 ASSESSEES APPEAL FOR AY 2006 ASSESSEES APPEAL FOR AY 2006 ASSESSEES APPEAL FOR AY 2006- -- -07 : 07 : 07 : 07 :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2006-07 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXVI, NEW DELHI DATED 30 TH JUNE, 2010. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN THIS APPEAL :- ITA-4261/DEL/2010 & 2 OTHERS 2 1. THAT ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) XVII, N EW DELHI (HEREINAFTER CALLED THE CIT(A) FOR SHORT) ERR ED IN HOLDING THAT THE ASSESSING OFFICER WAS JUSTIFIED IN FRAMING THE ASSESSMENT ORDER U/S 144 OF THE INCOME TAX ACT, 1961 IGNORING THE PLEA OF THE APPELLANT THAT BARRING A N OTICE U/S 143(2) DATED 20.07.2007 IN RESPECT OF WHICH AN ADJOURNMENT WAS DULY SOUGHT FOR NO SUBSEQUENT NOTIC E WAS EVER SERVED ON THE APPELLANT. 2. THAT ON FACTS AND IN CIRCUMSTANCES OF THE CASE, CIT(A) ERRED IN HOLDING THAT THE EVIDENCE PRODUCED BEFORE HIM BY THE APPELLANT WAS INADMISSIBLE UNDER RULE 46 A OF THE INCOME TAX RULES, 1962. 3. THAT ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN SUSTAINING AN ADDITION OF R S.26.5 LACS UNDER THE PROVISIONS OF SECTION 68 OF THE INCO ME TAX ACT, 1961. 4. THAT THE APPELLANT CRAVES LIBERTY TO ADD, ALTER, VARY OR AMEND ANY GROUND OF APPEAL. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL THAT EXCEPT THE FIRST NOTICE WHICH WAS ISSU ED U/S 143(2), NO OTHER NOTICE WAS SERVED UPON THE ASSESSEE. HE STAT ED THAT THE APPELLANT HAS CHANGED THE ADDRESS AND, THEREFORE, T HE NOTICES WERE NOT SERVED UPON HIM. HE HAS FILED A CHRONOLOGICAL TABLE GIVING THE DATE-WISE DETAILS OF THE CHANGE OF ASSESSEES ADDRE SS AND THE DATES ON WHICH THE NOTICES WERE ISSUED. HE, THEREFORE, SUBM ITTED THAT THE ORDERS OF AUTHORITIES BELOW SHOULD BE SET ASIDE AND THE MATTER SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER. HE ALSO POINTED OUT THAT THE MAIN ADDITION IN THIS APPEAL IS WITH REGAR D TO ADDITION FOR CASH CREDIT. SINCE THE ASSESSEE DID NOT GET ANY OPPORTU NITY BEFORE THE ASSESSING OFFICER, HE COULD NOT FILE ANY EVIDENCE I N SUPPORT OF CASH CREDIT. HOWEVER, ALL THOSE EVIDENCES WERE FILED BE FORE THE LEARNED CIT(A). LEARNED CIT(A) DISCUSSED THOSE EVIDENCES, GAVE ADVERSE REMARK AND THEN IN PARAGRAPH 7 OF HIS ORDER HAS MEN TIONED THAT THE ADDITIONAL EVIDENCES ARE NOT ADMISSIBLE UNDER RULE 46A. HE STATED ITA-4261/DEL/2010 & 2 OTHERS 3 THAT IF THE ADDITIONAL EVIDENCES ARE NOT ADMITTED, THEN THERE IS NO QUESTION OF MAKING ANY COMMENT ON THOSE EVIDENCES. HE SUBMITTED THAT THE ORDER OF LEARNED CIT(A) IS NOT JUSTIFIED. HE, THEREFORE, SUBMITTED THAT THE ORDERS OF AUTHORITIES BELOW SHOU LD BE SET ASIDE AND MATTER RESTORED TO THE FILE OF THE ASSESSING OFFICE R FOR READJUDICATION FOR ALLOWING OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE ASSESSING OFFICER. HOWEVER, HE STATED THAT IF THE GROUNDS RAISED IN THE ASSESSEES APPEAL ARE SET ASIDE, THEN THE GROUNDS R AISED IN THE REVENUES APPEAL SHOULD ALSO BE SET ASIDE AND LET T HE ENTIRE MATTER MAY BE EXAMINED BY THE ASSESSING OFFICER. 5. IN THE REJOINDER, LEARNED COUNSEL FOR THE ASSESS EE HAS NO OBJECTION TO THIS SUGGESTION OF THE LEARNED DR. LE ARNED COUNSEL ALSO SUGGESTED THAT THE ISSUE RAISED IN THE APPEAL FOR A SSESSMENT YEAR 2007-08 SHOULD ALSO BE SET ASIDE BECAUSE THAT YEAR WAS REOPENED AND ADDITION WAS MADE IN VIEW OF SOME ADVERSE COMMENTS MADE BY THE CIT(A) WHILE DECIDING THE APPEAL FOR ASSESSMENT YEA R 2006-07. HE POINTED OUT THAT LEARNED CIT(A) MADE SOME INCORRECT AND UNCALLED FOR ADVERSE COMMENTS WHILE DECIDING THE APPEAL FOR ASSE SSMENT YEAR 2006-07 RELATING TO ASSESSMENT YEAR 2007-08, THAT T OO, WITHOUT ALLOWING ANY OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE IN THIS REGARD. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND HAVE PERUSED THE MATERIAL PLACED BEFORE US. FR OM THE CHRONOLOGICAL TABLE, WE FIND THAT THE ASSESSEE WAS EARLIER RESIDING AT C- 131, LAJPAT NAGAR-1, NEW DELHI BUT, LATER ON, IN AU GUST 2006, THE ASSESSEE SHIFTED TO F-20, LAJPAT NAGAR-1, NEW DELHI . IT SEEMS THAT THE NOTICES WERE ISSUED AT THE EARLIER ADDRESS I.E., C- 131, FIRST FLOOR, LAJPAT NAGAR-1, NEW DELHI WHICH LED TO NON-SERVICE OF NOTI CE UPON THE ASSESSEE. IN VIEW OF THESE FACTS, IN OUR OPINION, IT WOULD MEET THE ENDS ITA-4261/DEL/2010 & 2 OTHERS 4 OF JUSTICE IF THE ORDERS OF AUTHORITIES BELOW ARE S ET ASIDE AND THE MATTERS ARE RESTORED TO THE FILE OF THE ASSESSING O FFICER. WE, THEREFORE, SET ASIDE ALL THE ISSUES RAISED BY THE ASSESSEE AS WELL AS THE REVENUE IN ASSESSMENT YEAR 2006-07 AS WELL AS 2007-08 AND R ESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER. WE ALSO OBSE RVE THAT WHILE MAKING THE REASSESSMENT, THE ASSESSING OFFICER WOULD READJ UDICATE THE ISSUE AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD AND WOULD MAKE THE ASSESSMENT AFRESH UNINFLUENCED BY ANY OBSERVATI ON MADE BY THE LEARNED CIT(A) IN THE IMPUGNED APPELLATE ORDERS. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE AS WE LL AS THE APPEAL OF THE REVENUE ARE DEEMED TO BE ALLOWED FOR STATISTICA L PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 27.06.2016 . SD/- SD/- (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. ASSESSEE : SHRI RAJ THAKUR, SHRI RAJ THAKUR, SHRI RAJ THAKUR, SHRI RAJ THAKUR, F FF F- -- -20, 1 20, 1 20, 1 20, 1 ST STST ST FLOOR, LAJPAT NAGAR, FLOOR, LAJPAT NAGAR, FLOOR, LAJPAT NAGAR, FLOOR, LAJPAT NAGAR, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 024. 110 024. 110 024. 110 024. 2. REVENUE : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -32(3), NEW DELHI. 32(3), NEW DELHI. 32(3), NEW DELHI. 32(3), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR