Sh. Deepak Gupta, New Delhi V. ACIT, New Delhi

ITA 4298/DEL/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 6706 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-11-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 20-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `B : NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER I.T.A.NO.4298/DEL/2010 ASSESSMENT YEAR : 2006-07 SHRI DEEPAK GUPTA, ADDL. COMMISSIONER OF INCOME -TAX, C-54, NEETI BAGH, VS. RANGE-43, NEW DELHI. NEW DELHI. PAN: AAAPGO239P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJAN BHATIA, ADVOCATE RESPONDENT BY : SHRI H. K. LAL, SR. DR. O R D E R PER C.L. SETHI, JUDICIAL MEMBER. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER, DATED 23.07.2010 OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) PASSED IN THE MATTER OF AN ASSESSMENT DATED 16.12.2008 MADE BY THE ASSESSING O FFICER UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961(THE ACT) PERTAIN ING TO THE ASSESSMENT YEAR 2006-07. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IS AS UN DER:- THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FA CTS OF THE CASE IN NOT ADMITTING THE ADDITIONAL EVIDENCE IN TE RMS OF RULE 46A AND IN UPHOLDING THE ADDITION U/SEC. 68. 2 3. IN THIS CASE, THE ADDITION OF RS.2,50,000/- HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED UNEXPLAINED DEPOSIT IN THE ASSESSEES BANK ACCOUNT ON 11.03.2006. THE ASSESSE E WAS ASKED TO SUBMIT SOURCE OF THE DEPOSIT BY THE AO. IN REPLY THERETO, ON 16.12.2008 THE ASSESSEE FURNISHED A CONFIRMATION OF SHRI LALIT KOT HARI IN WHICH IT WAS STATED THAT THE AMOUNT OF RS.2,50,000/- WAS REPAID BY HIM AGAINST THE LOAN TAKEN BY HIM FROM THE ASSESSEE IN EARLIER YEARS. THIS CONFI RMATION OF SHRI LALIT KOTHARI HAS NOT BEEN ACCEPTED BY THE AO FOR THE REA SON THAT EVEN THE YEAR IN WHICH THE LOAN WAS TAKEN BY SHRI LALIT KOTHARI FROM THE ASSESSEE, WAS NOT SPECIFIED NOR THE PASSBOOK OF THE ASSESSEE OR THAT OF SHRI LALIT KOTHARI FOR THE YEAR IN WHICH LOAN WAS GIVEN BY THE ASSESSEE TO SHRI LALIT KOTHARI, WAS FURNISHED. THE AO HAS ALSO STATED THAT THE BANK PA SSBOOK OF SHRI LALIT KOTHARI SHOWING REPAYMENT OF THE LOAN HAS ALSO NOT BEEN FURNISHED. THE AO THEREFORE, ADDED THE SUM OF RS.2,50,000/- TO THE AS SESSEES TOTAL INCOME. 4. ON APPEAL BEFORE THE CIT(A), THE ASSESSEE FURNIS HED FOLLOWING ADDITIONAL EVIDENCES:- (1) BANK STATEMENT OF THE ASSESSEE SHOWING PAYMENT OF L OAN ON 04.08.1997. (2) BANK STATEMENT OF THE ASSESSEE SHOWING RECEIPT OF R EPAYMENT OF LOAN ON 11.03.2006. (3) BANK STATEMENT OF BORROWER I.E. SHRI LALIT KOTHARI SHOWING LOAN RECEIVED ON 04.08.1997. 3 (4) BANK STATEMENT OF SHRI LALIT KOTHARI SHOWING LOAN R EPAYMENT ON 11.03.2006. HOWEVER, THESE ADDITIONAL EVIDENCES HAVE NOT BEEN A DMITTED BY THE LEARNED CIT(A) BY OBSERVING THAT WHY THESE DOCUMENTS WERE N OT SUBMITTED BEFORE THE AO AND WHY THE ASSESSEE HAS FAILED TO COLLECT T HESE DOCUMENTS WHEN THE CASE WAS PICKED-UP FOR SCRUTINY BY THE AO. THE CIT (A), THEREFORE, REJECTED THE ASSESSEES REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE AND CONFIRMED THE ADDITION. 5. HENCE, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 6. THE ASSESSEE HAS FILED BEFORE US AN APPLICATION FOR ADMITTING ADDITIONAL EVIDENCES AS UNDER:- (I) FRESH TYPES CONFIRMATION OF SHRI LALIT KOTHARI ON S AME LINE AS WAS SUBMITTED BEFORE THE AO. (II) PHOTO COPY OF PAN CARD OF SHRI LALIT KOTHARI. (III) BANK STATEMENT OF SHRI LALIT KOTHARI, EVIDENCING RE CEIPT OF LOAN OF RS.2,50,000/- IN THE YEAR 1997. (IV) BANK STATEMENT OF SHRI LALIT KOTHARI FOR THE RELEVA NT PERIOD IN THE YEAR OF 2006 EVIDENCING PAYMENT OF RS.2,50,000/- AG AINST LOAN TO THE ASSESSEE. (V) BANK STATEMENT OF 1997 OF THE ASSESSEE EVIDENCING P AYMENT OF RS.2,50,000/- BY CHEQUE TO SHRI LALIT KOTHARI. (VI) BANK STATEMENT OF 2006 OF THE ASSESSEE (ON RECORD.) . 4 7. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT IN DISPUTE THA T THE ASSESSEE FURNISHED CONFIRMATION OF SHRI LALIT KOTHARI BEFORE THE AO ON 16.12.2008 STATING THEREIN THAT HE HAD REPAID AN AMOUNT OF RS.2,50,000 /- TO THE ASSESSEE AGAINST A LOAN TAKEN BY HIM IN EARLIER YEARS. IN THIS CONF IRMATION, IT IS ALSO MENTIONED THAT SHRI LALIT KOTHARI WAS ASSESSED TO I NCOME-TAX UNDER PAN CARD NO.AAHPK6435A AT WARD 29(3), NEW DELHI. THIS CONFIRMATION WAS FILED BY THE ASSESSEE BEFORE THE AO ON 16.12.2008. FROM THE ORDER OF THE AO IT APPEARS TO US THAT THE AO NEEDED CERTAIN FURT HER INFORMATION FROM THE ASSESSEE WHICH WERE NOT AVAILABLE IN THE CONFIRMATI ON LETTER. THE AO STATED THAT IN THE CONFIRMATION LETTER FULL DETAILS WERE N OT FURNISHED AS TO THE YEAR IN WHICH THE LOAN WAS TAKEN AND AS TO THE BANK PASSBOO K OF SHRI LALIT KOTHARI AS WELL AS OF SHRI DEEPAK GUPTA FOR THE YEAR IN WHI CH THE LOAN WAS GIVEN BY THE ASSESSEE TO SHRI LALIT KOTHARI. ON THE BASIS O F THESE POINTS, THE AO MADE THE ADDITION WITHOUT MAKING ANY FURTHER ENQUIRY FRO M THE ASSESSEE. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON 16.12 .2008 ITSELF. IT IS, THUS CLEAR THAT THERE WAS A LACK OF PROVIDING PROPER OPP ORTUNITY TO THE ASSESSEE TO EXPLAIN THE MATTER IN THE WAY IN WHICH IT WAS REQUI RED BY THE AO. THE AO FAILED TO ISSUE ANY NOTICE TO SHRI LALIT KOTHARI TH OUGH HIS PERMANENT ACCOUNT NO. WAS DULY FURNISHED IN THE CONFIRMATION LETTER. WE THEREFORE, 5 FIND THAT THE MATTER HAS NOT BEEN PROPERLY EXAMINED AND VERIFIED BY THE AO. THE ASSESSEE HAS NOW FURNISHED BEFORE US NECESSARY EVIDENCES IN SUPPORT OF HIS CASE, WHICH NEED TO BE EXAMINED AND VERIFIED AT THE AOS LEVEL. WE THEREFORE, RESTORE THE MATTER BACK TO THE FILE OF T HE AO FOR HIS FRESH ADJUDICATION AFTER EXAMINING AND VERIFYING ALL THE EVIDENCES THAT THE ASSESSEE HAS PRODUCED BEFORE US AND AFTER PROVIDING REASONAB LE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS HEREBY DIRE CTED TO PRODUCE ALL THE EVIDENCES OR DETAILS BEFORE THE AO AS SOUGHT TO BE PRODUCED BEFORE US FOR OUR CONSIDERATION. WE ORDER ACCORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES. 9. THIS DECISION IS PRONOUNCED IN THE OPEN COURT ON 26 TH NOVEMBER, 2010. SD/- SD/- (K.G. BANSAL) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26 TH NOVEMBER, 2010. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.