Shri Gajender Kumar, New Delhi V. ITO, New Delhi

ITA 4466/DEL/2010

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0008 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: R S ADLAKHA
• Section: 80C; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : C NEW DELHI BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ITA NO: 4466/DEL/2010 ASSESSMENT YEAR : - 2007-08 GAJENDER KUMAR VS. I TO C/O RRA TAXINDIA WARD-39(1) D-28, SOUTH EXTENSION, PART-1, NEW DELHI. NEW DELHI 110 049. (PAN ATAPK9146L) (APPELLANT) (RE SPONDENT) APPELLANT BY : SHRI R.S. ADLAKHA, ADVOCATE RESPONDENT BY :SHRI T. VASANTHAN, SR. DR DATE OF HEARING :16.4.2015 DATE OF PRONOUNCEMENT : 6 .5.2015 O R D E R PER G.C. GUPTA,VICE PRESIDENT THIS APPEAL BY THE ASSESSEE FOR THE ASSE SSMENT YEAR 2007-08 IS DIRECTED AGAINST THE ORDER OF THE CIT(A). THE ASSESSEE HAS F ILED APPLICATION FOR ADJOURNMENT OF THE CASE, WHICH WAS REJECTED BY THE BENCH AS THE RE WAS NO VALID REASON FOR ADJOURNING THE APPEAL OF THE ASSESSEE. 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER : 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING THE IMPUG NED ASSESSMENT ORDER FRAMED BY LD. AO U/S 144 THAT TOO WITHOUT GIVING AD EQUATE OPPORTUNITY OF HEARING. ITA NO. 4466/DEL/2010 GAJENDER KUMAR VS. ITO 2 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A IN CONFIRMING THE ACTION OF LD. AO IN FRAMING THE IMPU GNED ORDER U/S 144 IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF T HE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. C T( ) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS.1,04,97,5001- ON ACCOUNT OF CASH DEPOSITED IN TH E BANK ACCOUNT OF THEE ASSESSEE. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN NOT ALLOWING THE BENEFIT OF DEDUCTION U/S 80C TO THE ASSESSEE. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ADEQUA TE OPPORTUNITY OF HEARING WAS NOT ALLOWED TO THE ASSESSEE AND HEAVY ADDITION OF RS. 1.04 CRORE WAS MADE BY THE AO. HE SUBMITTED THAT THE SOURCE OF CASH DEPOSI TED IN BANK IS VERIFIABLE AND, THEREFORE, THE ADDITION MADE MAY BE DELETED. THE LD . DR HAS OPPOSED THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE ASSESEE WAS NON-COOPERATIVE BEFORE THE AO AS WELL AS BEFORE THE CIT(A) AND EX PARTE ASSESSMENT WAS FRAMED BY THE AO. HE RELIED ON THE O RDER OF THE AO AND THE CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PERUSED THE ORDER OF THE AO AND CIT(A). WE FIND THAT THE ASSESSEE WAS NON-CO OPERATIVE DURING THE ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS BEFORE THE CIT(A). HOWEVER, IN THE FACTS OF THE CASE AND IN VIEW OF THE CLAIM OF THE A SSESSEE THAT IT WAS IN A POSITION TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE BANK ACC OUNTS OF THE ASSESSEE AND WAS PREVENTED BY THE ADVERSE CIRCUMSTANCES FROM COMPLYI NG WITH THE NOTICE OF HEARING BEFORE THE AO AND THE CIT(A), WE CONSIDER THAT IT S HALL BE IN THE INTEREST OF JUSTICE TO ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE TO PROVE ITS CASE. ACCORDINGLY, THE ISSUES IN THE GROUNDS OF APPEAL ARE RESTORED TO THE FILE OF THE CIT(A) WITH DIRECTION TO PASS A DENOVO APPELLATE ORDER IN ACCORDANCE WITH LA W AFTER PROVIDING REASONABLE ITA NO. 4466/DEL/2010 GAJENDER KUMAR VS. ITO 3 OPPORTUNITY OF HEARING TO BOTH THE PARTIES. CIT(A ) IS DIRECTED TO ASK FOR A REMAND REPORT FROM THE AO ON THE ISSUES BEFORE HIM AND THE ASSESSEE IS DIRECTED TO FULLY COOPERATE WITH THE DEPARTMENT AT THE STAGE OF THE R EMAND REPORT AS WELL AS IN THE APPELLATE PROCEEDINGS BEFORE THE CIT(A). THE ASSESS EE SHALL BE AT LIBERTY TO FILE ANY EVIDENCE IN SUPPORT OF HIS CASE BEFORE THE REVENUE AUTHORITIES. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH MAY, 2015. SD/- SD/- (N.K. SAINI) (G.C. GUPTA) ACCOUNTANT MEMBER VICE PRESIDE NT DATED: THE 6 TH MAY, 2015 VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER DY. REGISTRAR ITA NO. 4466/DEL/2010 GAJENDER KUMAR VS. ITO 4 SL. NO. DESCRIPTION DATE 1. DATE OF DICTATION BY THE AUTHOR 16.4.2015 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 16.4.2 015 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY THE SECOND MEMBER 5. DATE OF APPROVED ORDER COMES TO THE SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER 7. DATE OF FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER