Sh. Vijay Pal Singh, Ghaziabad V. ITO, Ghaziabad

ITA 4294/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6949 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 12-12-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 03-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 4294/DEL/2016 ASSESSMENT YEAR: 2012-13 VIJAY PAL SINGH, VS. ITO, WARD 1(5), GURJAR MARKET, GHAZIABAD OPPOSITE SURESH PARK, MODI NAGAR, GHAZIABAD UP (PAN: AWKPS2894N) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. RAJESH JAIN, CA REVENUE BY : SH. S.S. RANA, CIT(DR) ORDER PER H.S. SIDHU, JM THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 25.5.2016 PASSED BY THE LD. CIT(A), GHAZIABAD RELAT ING TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE ASSESSMENT ORDER PASSED BY THE AO MAKING ADDITION OF RS. 30,77,00,000/- IN THE RETURNED INCOME OF RS. 6,04,522/- FILED BY THE ASSESSEE, WITHOUT GIVING ADEQUATE OPPORTUNTIY OF BEING HEARD. 2 2. THAT THE LD. CIT(A) ERRED IN UPHOLDING ADDITION OF RS. 30,77,00,000/- AS UNDISCLOSED INCOME U/S. 68 OF THE ACT ON ACCOUNT OF ADVANCES RECEIVED DURING THE YEAR UNDER CONSIDERATION, IN SPITE OF HAVING FILED ALL DOCUMENTS, BANK ACCOUNTS AND ASSESSMENT DETAILS OF ALL THE CREDITORS, BY THE APPELLANT. 3. THAT THE ORDERS OF THE AO AND CIT(A) IS HIGHLY ARBITRARILY, CAPRICIOUS, UNWARRANTED AND ARE NOT BASED ON THE FACTS OF THE CASE AND AS PER LAW AND CONSEQUENTLY THEREFORE NOT SUSTAINABLE AS PER LAW. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR AL TER ANY OF THE GROUNDS OF APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, SH. RAJESH JAIN, CA/AUT HORISED REPRESENTATIVE OF THE ASSESSEE FILED AN APPLICATION FOR ADMITTING THE ADDITIONAL EVIDENCES UNDER RULE 29 OF THE ITAT RULE S AND STATED THAT THE ASSESSEE COULD NOT COLLECT ACKNOWLEDGEMENT FOR FILING THE INCOME TAX RETURN OF THE CREDITORS IN THE SUBSEQUENT YEAR AND ALSO THE DOCUMENT WHICH MAY ESTABLISH THE IDENTITY OF M/S SU SHILA STEELS. DURING THE COURSE OF PROCEEDINGS BEFORE THE LOWER A UTHORITY HE COULD NOT PRODUCE THE ADDITIONAL EVIDENCES ATTACHED WITH THE APPLICATION, HENCE, THE SAME MAY BE ADMITTED AND THE ISSUE IN DI SPUTE MAY BE DECIDED ACCORDINGLY. HE HAS ALSO FILED THE PAPER B OOK CONTAINING PAGES 1 TO 182 IN WHICH HE HAS ATTACHED VARIOUS DOC UMENTARY EVIDENCES AND ALSO CERTIFIED THAT THE DOCUMENTARY E VIDENCE AT SERIAL NO. 1 TO 4 ARE COPIES OF THEIR ORIGINAL DOCUMENTS WHICH FORM PART OF ASSESSMENT PROCEEDINGS BEFORE THE AO. BUT AT THAT T IME HEARING, LD. 3 CIT(DR) RAISED THE OBJECTION THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. CIT(A) AND DID NOT APPEAR IN SPITE O F THE VARIOUS OPPORTUNITIES GIVEN BY THE LD. CIT(A). HE DRAW OUR ATTENTION TOWARDS PARA NO. 5 AT PAGE NO. 12 OF THE IMPUGNED ORDER AND STATED THAT THE LD. CIT(A) HAS FIXED THE HEARING OF THE CASE OF AS SESSEE MANY TIMES BY ISSUING THE NOTICES TO THE ASSESSEE THROUGH SPEED P OST ON THE ADDRESS GIVEN IN FORM NO. 35, BUT ASSESSEE DID NOT ATTEND T HE PROCEEDINGS NOR FILED ANY APPLICATION FOR ADJOURNMENT. THEREFORE, NO LENIENT VIEW CAN BE TAKEN IN THE CASE OF THE ASSESSEE AND HE REQUEST ED THAT THE APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS ESPECIALLY THE IMPUGNED ORDER ALONGWITH THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE AND WE ARE OF THE C ONSIDERED VIEW THAT THE LD. CIT(A) HAS ISSUED NOTICE DATED 14.3.2016 FO R 18.4.2016, AND NOTICE DATED 27.4.2016 FOR 04.5.2016 AND NOTICE DAT ED 06.5.2016 FOR 13.5.2016, BUT THE ASSESSEE DID NOT ATTEND, NOR FI LED ANY APPLICATION FOR ADJOURNMENT AND THE LD. CIT(A) AFTER GIVING LA ST OPPORTUNITY FOR 13.5.2016 HAD DECIDED THE CASE OF THE ASSESSEE AGAI NST THE ASSESSEE BY DISMISSING THE APPEAL OF THE ASSESSEE VIDE IMPU GNED ORDER DATED 25.5.2016. AFTER GOING THROUGH THE IMPUGNED ORDE R, WE ARE OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS NOT WRITTEN ANY WHERE IN THE IMPUGNED ORDER THAT THE NOTICE OF HEARING HAS BEEN SERVED UPON THE ASSESSEE. MERELY ISSUING THE NOTICE DOES NOT MEAN THE SERVICES ON THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE SETTING ASIDE THE ISSUE IN DISPUTE TO THE LD. CIT(A) TO DECIDE THE SA ME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. AS PER THE IMPUGNED ORDER, WE FEEL THAT THERE IS SO ME MISTAKE IN THE ADDRESS OF THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE GIVING THE DIRECTION TO THE ASSESSEE THROUGH HIS AU THORISED REPRESENTATIVE SH. RAJESH JAIN, CA TO APPEAR BEFORE THE LD. CIT(A) ON 4 15.03.2017 AT 10.00 AM AND TO REMAIN COOPERATE BEFORE HIM AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. HOWEVER, LD. CIT(A) IS AT LIBERTY TO DECIDE THE CASE AS PER LAW. IT IS MADE CLEAR THAT NO NOTICE IS REQUIRED TO BE ISSUED AND SERVED UPON THE ASSESS EE FOR 15.03.2017, BECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/2017 . SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 16/01/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES