Ashok Kumar, Karnal V. ITO, Karnal

ITA 4303/DEL/2014

• Counselvise Citation: 430320114 RSA 2014
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 09-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN RAWAL
• Assessee Lawyers: PERMIL GOEL
• Keywords: Unexplained investment; Opportunity of being heard; Additional evidence
• Section: 69

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC - 2 : NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4303 /DEL/201 4 A.Y. : 200 9 - 10 ASHO K KUMAR, VS. ITO, WARD - 1 S/O SHRI RAM PAI, KARNAL AYAAKAR BHAWAN, C/O DHARAMPAL GUPTA, SECTOR - 12, ADVOCATE, KARNAL 7, RAILWAY ROAD, KARNAL (PAN: AJOPK4646F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PERMIL GOEL, ADV. DEPARTMENT BY : SH. ROBIN RAWAL, SR. DR DATE OF HEARING : 09.7.2015 DATE OF ORDER : 09 .7.2015 O R D E R PER H.S. SIDHU, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMI SSIONER OF INCOME TAX (APPEALS), KARNAL DATED 2 . 12 .201 3 PERTAINING TO ASSESSMENT YEAR 200 9 - 10 . 2. T HE GROUNDS OF APPEAL READ AS UNDER: - I) THAT THE ORDER PASSED IS BAD IN LAW AND FACTS. (II) ON THE FACTS, THE FILE AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACTS AND EVIDENCE ON FILE AND REJECTING THE APPLICATIO N OF 2 THE ASSESSEE MOVED U/R. 46A OF THE INCOME TAX ACT HENCE ILLEGAL AND WRONG. (III) THAT ON THE FACTS AND LAW OF THE CASE THE DISMISSAL OF APPEAL IS ILLEGAL, AND WRONG THE CASE NEED TO BE DECIDED ON MERITS WHEN THE CASE HAS BEEN HEARD DISCUSSED, EVID ENCE LOOKED INTO ON MERITS AND LAW. (IV) THE CIT ERRED IS NOT DECIDING THE CASE ON MERITS. PRAYER: IT IS PRAYED THE CASE BE DECIDED ON MERITS AND ADDITION MADE BE DELETED. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED, THEREFORE, THE SAME ARE NOT REPEATED HER FOR THE SAKE OF CONVENIENCE. 4. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE STATED THAT LD. CIT(A) HAS WRONGLY REJECTED THE APPLICATION FILED BY THE ASSESSEE UNDER RULE 46A OF THE INCOME TAX RULES, 1962. HE FURT HER STATED THAT LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE EVIDENCE PRODUCED BY THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM BEFORE HIM. HE ALSO STATED THAT ASSESSEE HAS DISCLOSED MORE THAN RS. 20,05,000/ - AS INCOME IN HIS R ETURN OF INCOME AND FILED THE RETURN U/S. 44AF OF THE I.T. ACT AND PAID TAX ACCORDINGLY. THE AO HAS WRONGLY TREATED RS. 8 ,82,000 AS UNEXPLAINED INVESTMENT U/S. 69 OF THE I.T. ACT. OUT OF THE TOTAL WITHDRAWAL OF RS. 20,05,000/ - DEPOSIT IN ICICI BANK AND G IVEN THE BENEFIT OF WITHDRAWALS OF THE ASSESSEE. 4.1 LD. CIT(A) HAS ALSO UPHELD THE ORDER OF THE AO BY DISMISSING THE APPEAL FILED BY THE ASSESSEE WITHOUT CONSIDERING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE UNDER RULE 46A OF THE I.T. RULES, 1962. H E HAS ALSO FILED A SMALL PAPER BOOK CONTAINING PAGES 1 TO 23 IN WHICH 3 HE HAS ENCLOSE THE WRITTEN SUBMISSION, COPY OF THE ITR/ DETAILS OF INCOME SINCE 1.4.2003; COPY OF WRITTEN SUBMISSION DATED 3.10.2011 BEFORE AO; COPY OF BANK ACCOUNT 1.4.2008 TO 31.3.200 9; COPY OF BANK ACCOUNT 1.4.2007 TO 31.3.2008; COPY OF AGRICULTURAL LAND JAMABANDI AGREEMENT; COPIES OF TEHSILDAR / SARPANCH / BANK CONFIRMATION OF MILK BUSINESS; COPY OF A/C FROM COMMISSION AGENT / J FORM AND COPY OF APPLICATION U/R 46A FILED BEFORE CIT(A ). HE STATED THAT ADDITIONS IN DISPUTE MAY BE DELETED OR IN THE ALTERNATIVE THE MATTER MAY BE SET ASIDE TO THE FILE OF THE AO FOR APPRECIATION OF ADDITIONAL EVIDENCES FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND DECIDE THE ISSUE AFRESH UNDER THE LAW , AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 5. LD. DR RELIED UPON THE ORDERS PASSED BY THE REVENUE AUTHORITIES AND STATED THAT ASSESSEE HAS NOT FILED ANY EVIDENCE BEFORE THE AO, THEREFORE, CIT(A) HAS RIGHTLY REJECTED THE APPLICATION FILED BY THE ASSESSEE FOR ADMITTING ADDITIONAL EVIDENCES, BECAUSE THE ASSESSE HAS NOT ESTABLISHED ANY CIRCUMSTANCES WHY THE ASSESSEE HAS NOT FILED THE ADDITIONAL EVIDENCE BEFORE THE AO. HE REQUESTED THAT APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED , BUT H E HAS NOT RAISED ANY SERIOUS OBJECTION ON THE ALTERNATIVE REQUEST OF THE ASSESSEE OF REMITTING BACK THE MATTER TO THE AO. 6 . I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. I FIND CONSIDERABLE FORCE IN THE ASSESSEE S COUNSEL THAT ASSESSEE HAS DISCLOSED MORE THAN RS. 20,05,000/ - AS INCOME IN HIS RETURN OF INCOME AND FILED THE RETURN U/S. 44AF OF THE I.T. ACT AND PAID TAX ACCORDINGLY. I FURTHER FIND THAT LD. CIT(A) HAS ALSO UPHELD THE ORDER OF THE AO BY DISMISSING THE APPEAL FILED BY THE ASSESSEE WITHOUT CONSIDERING THE ADDITIONAL EVIDENCE FILED 4 BY THE ASSESSEE UNDER RULE 46A OF THE I.T. RULES, 1962 , WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. IN VIEW OF THE ABOVE, I FIND THAT THE LD. CIT(A) IS WRONG TO UPHOLD THE ORDER OF THE AO AND BY REJECTING THE ADDITIONAL EVIDENCE ONLY ON THE GROUND THAT THE SAME WERE NOT PRODUCED BEFORE THE AO. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE, I AM OF THE CONSIDERED V IEW THAT THE MATTER NEEDS TO BE RE - ADJUDICATED BY THE AO, AFTER CONSIDERING THE ADDITIONAL EVIDENCES FILED BEFORE THE LD. CIT(A). ACCORDINGLY, I REMIT THE ISSUES IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTIONS TO CONSIDER THE SAME AFRESH, AFTER CONS IDERING THE ADDITIONAL EVIDENCES, UNDER THE LAW. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09 /7/201 5 . SD/ - [ H.S. SIDHU ] JUDICIAL MEMBER DATE: 09 /7/201 5 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 5