Hari Ram Jaiswal, New Delhi V. ITO, New Delhi

ITA 446/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9960 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 29-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 25-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS MONA MOHANTY
• Assessee Lawyers: C L SHARMA
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER I.T. A. NO.446/DEL/2011 ASSESSMENT YEAR : 2007-08 HARI RAM JAISWAL, INCOME-TAX OFFICER, WZ-438, GROUND FLOOR, VS. WARD 27(4), NEW DELHI. MS BLOCK, HARI NAGAR, NEW DELHI. PAN: AATPJ5189L (APPELLANT) (RESPONDENT ) APPELLANT BY: SHRI C.L. SHARMA, ADVOCATE RESPONDENT BY: MRS. MONA MOHANTY, SR. DR. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 2 5.11.2010 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN THE MATTER OF AN EX 2 PARTE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDE R SEC. 144 OF THE INCOME-TAX ACT, 1961 (THE ACT), FOR THE ASSESSMENT YEAR 2007-08. 2. IN THE GROUNDS THE ASSESSEE HAS TAKEN A PLEA THA T THE ASSESSEE COULD NOT PRODUCE THE RECORDS AND INFORMATION BEFORE THE AO D UE TO NON-AVAILABILITTY OF RECORDS WITH HIM. THE ASSESSEE, THEREFORE, PRAY ED THAT THE ORDER OF THE ASSESSING OFFICER MAY BE SET ASIDE AND THE OPPORTUN ITY BE GIVEN TO THE ASSESSEE TO FURNISH RECORDS AND DETAILS. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF THE AUTHORITIES BELOW. 4. IN THIS CASE, THE AO HAS PASSED THE ORDER EX PAR TE UNDER SEC. 144 OF THE ACT VIDE HIS ORDER DATED 30.12.2009. IN THE AS SESSMENT, THE AO MADE THE ADDITION OF RS.34,12,200/- ON ACCOUNT OF CASH D EPOSITS IN THE ASSESSEES BANK ACCOUNT. THE AO HAS MADE THE ADDITION FOR WANT OF DETAILS OR EVIDENCES IN RESPECT OF CASH DEPOSITS MADE IN THE B ANK ACCOUNT. ON AN APPEAL, THE LEARNED CIT(A) ALSO DECIDED THE APPEAL EX PARTE BY OBSERVING THAT VARIOUS NOTICES ISSUED BY HIM WERE NOT COMPLIE D WITH. ON PERUSAL OF THE VARIOUS DATES FIXED BY THE LEARNED CIT(A), WE FIND THAT ON SOME DATES REQUEST FOR ADJOURNMENT WAS MADE BY THE ASSESSEE. IN THE COURSE OF HEARING OF THIS APPEAL, THE LEARNED COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE ASSESSEE COULD NOT COMPLY WITH THE NOTICES OF HEARI NG FIXED BY THE AO AS 3 WELL AS BY THE LEARNED CIT(A) BECAUSE OF THE REASON THAT HIS TAX ADVOCATE HAD FAILED TO APPEAR BEFORE THEM DUE TO UNAVOIDABLE CIRCUMSTANCES. 5. WE FIND THAT THE ASSESSEE IS AN INDIVIDUAL AND I S DEPENDENT UPON THE TAX CONSULTANT TO COMPLY WITH THE NOTICES OF HEARIN G ISSUED BY THE INCOME- TAX AUTHORITIES. THE ASSESSEE HAS NOW SUBMITTED BE FORE US THAT HE COULD NOT SUBMIT THE DETAILS BEFORE THE AO AS WELL AS BEFORE THE CIT(A) AS THESE DETAILS WERE NOT READILY AVAILABLE WITH HIM. WE FU RTHER FIND THAT THE AO AS WELL AS THE CIT(A) HAS DECIDED THE ISSUE AGAINST TH E ASSESSEE FOR WANT OF EVIDENCES. 6. FOR ENDS OF JUSTICE AND KEEPING IN MIND THAT THE ISSUE INVOLVED IN THIS APPEAL BE DECIDED AFTER CONSIDERING THE ASSESSEES EXPLANATION AND EXAMINING AND VERIFYING THE VARIOUS DETAILS THAT TH E ASSESSEE SHALL PRODUCE BEFORE THE AO, WE ARE OF THE CONSIDERED VIEW THAT L ET THIS MATTER GO BACK TO THE ASSESSING OFFICER FOR HIS FRESH ASSESSMENT. WE , THEREFORE, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND REMIT THE WHOLE ASSESSMENT BACK TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATION. WE FURT HER DIRECT THE ASSESSEE TO FURNISH ALL THE DETAILS AND INFORMATION AS TO THE S OURCE OF CASH DEPOSIT MADE IN THE ASSESSEES BANK ACCOUNT. IT WILL BE THE BUR DEN OF THE ASSESSEE TO PROVE, ESTABLISH AND EXPLAIN THE SOURCE OF MONEY DE POSITED IN THE BANK ACCOUNT BY ADDUCING ADEQUATE AND SUFFICIENT EVIDENC ES. THE ASSESSEE SHALL 4 COOPERATE WITH THE AO IN FINALIZING THE FRESH ASSES SMENT AND SHALL NOT INDULGE INTO ANY DILATORY TACTICS BY TAKING UNNECES SARY ADJOURNMENTS ON ONE OR OTHER PRETEXT. WE ORDER ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. 8. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 29 TH MARCH, 2011 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- SD/- (K.D. RANJAN) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH MARCH, 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.