Rizwan, Meerut V. ITO, Ward-2(2), Meerut

ITA 4477/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1934 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 13-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: V K GOEL
• Keywords: Opportunity of being heard; Peak credit
• Section: 44AD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-4477/DEL/2018 (ASSESSMENT YEAR-2010-11) RIZWAN, MEERUT C/O SHRI VINOD KUMAR GOEL, ADVOCATE, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT, UTTAR PRADESH. PAN NO. AKRPR4816L (APPELLANT) VS ITO WARD 2(2), MEERUT. (RESPONDENT) APPELLANT BY SHRI V.K. GOEL, ADVOCATE RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 23.04.2018 OF THE LD. CIT(A), MEERUT RELEVANT TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS: - 1. THAT THE ASSESSEE IS SMALL TRADER THEREFORE, ENTIR E SALE CANNOT BE TREATED AS PROFIT OF THE ASSESSEE. THEREFORE, THE ASSESSEE REQUESTS YOUR HONOUR TO KINDLY DIRECT AO TO TAKE PRO FIT AS PER SECTION 44AD OF THE I.T. ACT ON THE BASIS OF TECHNIC AL. THAT THE STATUS WAS MENTIONED IN THE BANK ACCOUNT RELATES TO SMALL AMOUNT OF TRANSACTIONS OF SHARES AND THIS CANNOT BE BASIS TO ASSESSED ENTIRE CASH DEPOSIT IN THE BANK ACCOUNT. 2. THAT THE ADDITION WAS MADE OF RS. 12,81,000/- WITHOU T CONSIDERING THE CREDIT AND DEBIT ENTRIES, HENCE, EN TIRE AMOUNT OF CASH WAS ASSESSED IN THE INCOME OF THE ASSESSEE. T HE AO ALSO NOT CONSIDERED THE PEAK CREDIT OF BANK ACCOUNT, THE REFORE, ADDITION MADE BY AO IS BAD IN LAW. DATE OF HEARING 19/11/2018 DATE OF PRONOUNCEMENT 20/11/2018 ITA NOS. 4477/D/2018 A.Y. 2010-11 RIZWAN, MEERUT 2 3. THAT THE AO AS WELL AS CIT(A) HAS PASSED THE ORDER W ITHOUT PROVIDING THE PROPER AND REASONABLE OPPORTUNITY BEI NG HEARD TO THE ASSESSEE. HENCE, ASSESSMENT MADE BY AO AND CON FIRMED BY CIT(A) IS BAD IN LAW. 4. THAT THE ASSESSEE HAS RIGHT TO ADD, MODIFY OR DELET E ANY GROUND DURING THE APPEAL PROCEEDINGS. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE HEARING, ASSESSEE, HAS STATED THAT AO HAS PASSED THE EXPARTE ORDER U/S. 144/147 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) AND SIMILARLY, THE LD. CIT(A) HAS ALSO UPHELD THE ACTION OF THE AO, WITHOUT GIVING SUFFI CIENT OPPORTUNITY TO THE ASSESSEE AND WITHOUT PROPERLY CO NSIDERED THE SUBMISSIONS OF THE ASSESSEE. HE REQUESTED THA T THE MATTER MAY BE SET ASIDE TO THE FILE OF THE AO TO DE CIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUATE O PPORTUNITY OF BEING HEARD. 4. LD. DR DID NOT RAISE ANY OBJECTION TO THE REQUES T OF THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE ALSO GONE THROUGH THE ORDER PASSED BY THE REVE NUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. I FIND FORCE IN THE ARGUMEN TS OF THE ASSESSEE THAT AO HAS COMPLETED THE ASSESSMENT VIDE EXPARTE ORDER DATED 09.11.2017 U/S. 147/144 OF THE INCOME TAX ACT AND SIMILARLY, LD. CIT(A) ALSO UPHELD THE ACTION OF THE AO, WITHOUT CONSIDERING THE MATERIAL ON RECORD. THEREFO RE, IN THE ITA NOS. 4477/D/2018 A.Y. 2010-11 RIZWAN, MEERUT 3 INTEREST OF JUSTICE, THE ISSUES IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO WITH THE DIRECTIONS TO DECIDE THE SAME AF RESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FILE ALL THE NECESSARY DOCUMENTS/EVIDENCES, IF ANY, TO SUBSTANTIATE HIS C ASE AND FULLY COOPERATE WITH THE AO IN THE PROCEEDINGS AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 20.11.2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 20/11/2018 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI