ITO, New Delhi V. Anil Kumar Bansal (HUF), New Delhi

ITA 4582/DEL/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74343 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 04-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK WADEKAR
• Keywords: Income from undisclosed sources; Opportunity of being heard; Additional evidence
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI SHAMIM YAHYA ITA NO. 4582/DEL/2009 ASSTT. YR: 2002-03 INCOME-TAX OFFICER, VS. ANIL KUMAR BANSAL (HUF), WARD 28(2), NEW DELHI. KATRA OF M/S RAM KISHORE & SONS, 4032, CHAWARI BAZAR, DELHI-110006. PAN: ABDPM 6914 E ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI VIVEK WADEKAR CIT (DR) RESPONDENT BY : SHRI K. SAMPATH ADV. & SHRI V. RAJA KUMAR ADV. O R D E R PER R.P. TOLANI, J.M: : THIS IS REVENUES APPEAL AGAINST THE ORDER OF CIT (A)-XXV, NEW DELHI DATED 25-9-2009RELATING TO A.Y. 2002-03. FOLL OWING GROUNDS ARE RAISED: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD. CIT(A) HAS ERRED IN HOLDING THAT ADEQUATE OPPORTUNI TY WAS NOT PROVIDED TO THE ASSESSEE WHILE COMPLETING THE ASSES SMENT U/S 147/144 OF IT ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 18 8,61,967/- MADE ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES. 2. FACTS, IN BRIEF ARE: ORIGINAL ASSESSMENT OF THE ASSESSEE WAS COMPLETED U/S 143(1). THEREAFTER, ASSESSING OFFICER RECEIVED INFORMATION THAT SOME ACCOMMODATION LOANS WERE GIVEN BY MR. NAGARMAL TO A SSESSEE. 148 NOTICE 2 WAS ISSUED AFTER FULFILLING THE FORMALITIES INCLUDI NG RECORDING OF REASONS. DETAILS FOUND FROM THE DIARY PERTAINING TO MR. NAGA RMAL, MAINTAINED IN THE NAME OF M/S RAM KISHORE & SONS, ARE LISTED IN A.O S ORDER. BESIDES, STATEMENT OF RAJIV GUPTA SON OF SHRI BRIJ MOHAN GUP TA; AND ACCOUNTANT RAM AVTAR SINGHAL, IN WHOSE HANDWRITING THE DIARY W AS WRITTEN WERE ALSO RECORDED. ACCORDING TO ASSESSEE, ON THE DATE FIXED FOR HEARING I.E. 2-12-2008 NO BODY APPEARED. THEREAFTER AGAIN SHOW CAUSE NOTIC E DATED 4-12-2008 WAS ISSUED FOR 9-12-2008, WHICH WAS NOT COMPLIED WITH. ANOTHER OPPORTUNITY WAS PROVIDED BY WAY OF NOTICE DATED 8-12-2008 FOR C OMPLIANCE ON 10-12- 2008. HOWEVER, NONE ATTENDED ON 10-12-2008. CONSEQU ENTLY ASSESSING OFFICER PASSED ASSESSMENT ORDER U/S 144 MAKING THE IMPUGNED ADDITION OF RS. 1,88,61,967/-. 2.1. AGGRIEVED, ASSESSEE PREFERRED FIRST APPEAL WHE RE CIT(A) ITSELF STATED THAT NO ADDITIONAL EVIDENCE WAS FILED. LD. CIT(A) W ITHOUT VERIFYING ANY OTHER DOCUMENTS, WITHOUT CALLING FOR REMAND REPORT, DELETED THE ADDITION BY FOLLOWING OBSERVATIONS: GROUND NO. 5 OF THE APPEAL RELATING TO THE QUANTUM ADDITION IS CONSIDERED NEXT. IT IS APPARENT FROM THE IMPUGNED O RDER THAT THE ASSESSING OFFICER COMPLETELY FAILED TO ESTABLIS H ANY CASE AGAINST THE APPELLANT. FURTHER INQUIRY/ INVESTIGATI ON WAS REQUIRED TO BE CARRIED OUT ON THE INFORMATION PASSE D BY THE DCIT, CENTRAL CIRCLE 19, NEW DELHI, BUT NO WORTHWHI LE OR COGENT WORK WAS DONE TOWARDS THIS END. NO CORROBORA TIVE EVIDENCE TO THAT FOUND DURING SEARCH ON SH BRIJ MOH AN GUPTA WAS GATHERED IN RELATION TO THE APPELLANT. THE ASSE SSING OFFICER MERELY REPRODUCED HIS COMMUNICATIONS WITH THE APPEL LANT AND SUMMARIZED THE SALIENT FEATURES OF THE ASSESSMENT P ROCEEDINGS RELATING TO SH BRIJ MOHAN GUPTA AND THEREAFTER PROC EEDED TO ADD RS. 1,88,61,967/- TO THE TOTAL INCOME OF THE AP PELLANT. IN VIEW OF THE DISCUSSION ABOVE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION OF RS. 1,88,61,967 /-. GROUND 5 OF THE APPEAL IS THEREFORE ALLOWED. 3 2.2. AGGRIEVED, REVENUE IS BEFORE US. 3. LD. DR CONTENDS THAT THE IMPUGNED ASSESSMENT WAS PASSED U/S 144/147 AFTER GIVING VARIOUS OPPORTUNITIES INCLUDIN G SPECIFIC SHOW CAUSE NOTICES TO THE ASSESSEE TO FURNISH THE INFORMATION AND EXPLAIN THE INCONSISTENCIES AND THE MENTIONING OF BOOK ENTRIES IN THE DIARIES IN THE NATURE OF LOANS. ASSESSEE DID NOT APPEAR IN ANY HEA RING AND A.O. FRAMED EX PARTE ASSESSMENT. CIT(A) BY CRYPTIC FINDING, WITHOU T MENTIONING ANY REASON OFFERED BY THE ASSESSEE FOR HIS FAILURE TO ATTEND T HE PROCEEDINGS HAD SUMMARILY HELD THAT ADEQUATE OPPORTUNITY WAS NOT P ROVIDED IN ASSESSMENT. THIS FINDING IS CONTRARY TO RECORD, WHICH IS CHALLE NGED BY GROUND NO. 1. CIT(A) CANNOT HOLD ANY ASSESSMENT ORDER TO BE PASSE D WITHOUT GIVING ADEQUATE OPPORTUNITY IN THE ABSENCE OF ANY COGENT R EASONS, JUSTIFYING THE ASSESSEES FAILURE TO ATTEND. ON MERITS ALSO, LD. C IT(A) HAS NOT VERIFIED ANY FURTHER DOCUMENT WAS ASSESSMENT WAS EX PARTE, AS NO NE EXISTED ON RECORD. NO ADDITIONAL EVIDENCE IS FILED AND MERELY THE CONT ENTIONS OF THE ASSESSEE HAVE BEEN ACCEPTED WITHOUT ANY QUESTIONS AND WITHO UT REFERRING TO THE SUBMISSIONS OF THE ASSESSEE, IF ANY. UNDER THESE CI RCUMSTANCES, THE RELIEF ON MERITS IS UNJUSTIFIED. 4. LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, RELIED ON ITAT ORDER IN THE CASE OF OTHER PERSONS WHOSE NAMES WERE ALSO FOUND IN THE DIARY 4 PERTAINING TO MR. NAGARMAL. RELIANCE IS PLACED ON THE ORDERS OF ITAT IN THE CASES OF : - ITAT DELHI BENCH B ORDER DATED 17-3-2011 IN CROSS APPEALS BEING ITA NOS. 1522/DEL/10 & 2727/DEL/10 M/S DEV DU TT PRASAD RAJ KUMAR GARG VS. ITO & VICE VERSA. - ITAT DELHI BENCH A IN THE CASE OF ATUL GUPTA VS. DCIT (ITA NOS. 24/DEL/2011 & 709 TO 712/DEL/2011 ORDER DATED 18-5-2012 - ITAT DELHI BENCH A IN THE CASE OF ITO VS. ANIL KU MAR BANSAL (HUF) (ASSESSEE) (ITA NO. 1156/DEL/2009 ORDER DAT ED 11-9- 2009). 4.1. IN THESE CASES THE ADDITIONS HAVE BEEN DELETED , THEREFORE, THE CIT(A)S ORDER STANDS JUSTIFIED BY THE FINDING OF THE ITAT I N OTHER CASES. 5. LD. DR IN REJOINDER VEHEMENTLY ARGUES THAT IN TH E CASES DECIDED BY THE ITAT, ASSESSMENTS WERE FRAMED U/S 143(3) AND NO T U/S 144. THUS, WHILE DECIDING THOSE CASES, THERE WAS SUFFICIENT MATERIAL BEFORE THE CIT(A) AS WELL AS THE ITAT BASED ON THEIR PERUSAL THE ITAT HAS PAS SED THE IMPUGNED ORDERS. IN CONTRADICTION, ASSESSMENT IN THE CASE OF THE ASSESSEE IS PASSED U/S 144 AND NOT U/S 143(3). IN VIEW THEREOF, THE ASSESS EES CASE CANNOT BE HELD TO BE COVERED IN FAVOUR OF THE ASSESSEE BY THOSE ITAT ORDERS. 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENT OF LD. DR THAT LD. CIT(A) HAS NEITHER GIVEN COGENT REASONS TO ESTABLIS H THAT THE FAILURE ON THE PART OF THE ASSESSEE WAS JUSTIFIED. BESIDES, WHILE ALLOWING RELIEF ON MERITS, NO EVIDENCE HAS BEEN REFERRED NOR JUSTIFIABLE OBSER VATIONS ARE RECORDED 5 WHICH CAN SUPPORT THE ACTION OF THE CIT(A) IN DELET ING THE ADDITIONS SUMMARILY. 6.1. APROPOS THE PLEA THAT ISSUE IS COVERED ITAT JU DGMENTS, THOUGH THEY MAY PERTAIN TO DIARY BELONGING TO SHRI NAGARMAL, TH E FACT IS THAT IMPUGNED ASSESSMENT IS FRAMED U/S 144 AND NOT U/S 143(3). ON THIS CRUCIAL FACT THE ABOVE REFERRED JUDGMENTS OF THE ITAT CANNOT BE APPL IED TO THE ASSESSEES CASE. IN CONSIDERATION OF ALL THE FACTS AND CIRCUM STANCES, WE ARE INCLINED TO SET ASIDE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE THE SAME AFRESH AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AFTER TAKING INTO CONSIDERATION THE ABOVE REFERRED ITAT JUDGMENT S AND PASSING AN ORDER IN ACCORDANCE WITH LAW. 7. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 14-03-2014. SD/- SD/- ( SHAMIM YAHYA) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14-03-2014. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 6