Kamlesh Kumar Shahi, Ghaziabad V. ITO, New Delhi

ITA 4627/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6383 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-02-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 31-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBINA CHAUDHURI
• Assessee Lawyers: INDER MOHAN SINGH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 4627/DEL/2016 ASSESSMENT YEAR: 2006-07 KAMLESH KUMAR SHAHI, VS. ITO, WARD-43(2) F01303, ANSAL NEEL, PADAM KUNJ, NEW DELHI VAISHALI, GHAZIABAD-UP (PAN: AVVPS7193C) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. INDER MOHAN SINGH, ADV. REVENUE BY : MS. BEDOBINA, CHAUDHURI, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 28.6.2016 PASSED BY THE LD.CIT(A)-34, NEW DELHI REL ATING TO ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS:- 1. THAT THE APPELLATE ORDER AS PASSED IS AGAINST LAW A ND FACTS OF THE CASE. 2. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING RS. 13,46,320/- ON ACCOUNT OF DEPOSITS IN THE SAVINGS B ANK ACCOUNT OF THE APPELLANT. 3. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT T HE APPELLANT HAS NOTHING TO DO WITH THIS DEPOSITS AS T HE BANK ACCOUNT WAS OPENED BY MR. AMIT SAHI SON OF THE APPELLANT SH. KAMLESH KUMAR SAHI. HOWEVER, IT WAS ONLY AT A SUBSEQUENT DATE THAT THE NAME OF THE APPELLANT WAS ADDED TO THE ACCOUNT OF SH. AMIT SAH I FOR THE PURPOSES OF CONVENIENCE AS SH. KAMLESH KUMAR 2 SAHI WAS WORKING AS EMPLOYEE WITH THE BRANCH OF IND IAN OVERSEAS BANK. 4. THAT THE LD. CIT(A) HAS ERRED NOT APPRECIATING THE DETAILED ORDER PASSED BY LD. PREDECESSOR WHILE PASS ING THE FIRST APPELLATE ORDER. 5. THAT THE APPELLATE ORDER AS PASSED IS NOT SUSTAINAB LE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE COURSE OF HEARING, LD. COUNSEL OF THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING PAGES 1 TO 49 CONTA INING THE COPY OF ACCOUNT OPENING FORM WITH THE BANK; COPY OF FORM 60 OF SH. AMIT SAHI; COPY OF ANNEXURE TO ACCOUNT OPENING FORM; SPE CIMEN SIGNATURE CARD OF SH. AMIT SAHI; COPIES OF VARIOUS CHEQUES WI THDRAWN AND FROM THE ACCOUNT SIGNED BY SH. AMIT SAHI; COPY OF BANK S TATEMENT OF A/C NO. 17660 IN THE NAME OF SH AMIT SAHI AND SH. KAMLE SH KUMAR SAHI; COPIES OF VARIOUS VOUCHERS FOR DEPOSITS AND WITHDRA WALS FROM THE ACCOUNT; COPY OF ORDER PASSED BY THE ITO DATED 26.1 2.2008; COPY OF ORDER DATED 31.1.2012 PASSED BY THE CIT-21, NEW DEL HI AND COPY OF ORDER PASSED BY THE ITAT. LD. COUNSEL OF THE ASSE SSEE ALSO CERTIFIED THAT THE ABOVE DOCUMENTS WERE AVAILABLE TO BOTH THE AUTHORITIES I.E. AO & CIT(A). HE FURTHER STATED THAT LD.CIT(A) HAS N OT CONSIDERED THE VITAL AND LEGALLY TENABLE DOCUMENTARY EVIDENCES TEN DERED, AS AFORESAID AND CONTENTION RAISED DURING THE APPELLATE PROCEEDI NGS WHICH GOES TO THE ROOT OF THE MATTER AND ARE VERY ESSENTIAL TO AD JUDICATE THE ISSUE IN DISPUTE. IN VIEW OF THE ABOVE, HE REQUESTED THAT T HE ISSUE INVOLVED IN THE PRESENT APPEAL MAY BE SET ASIDE TO THE FILE OF THE LD.CIT(A) TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER CONSIDE RING ALL THE 3 DOCUMENTS AND GIVE ADEQUATE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE TO SUBSTANTIATE HIS CASE. 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE AND RELIED UPON THE ORDERS OF THE A UTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE AUTHOR ITIES ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE PAPER BOOK CONTA INING PAGES 1 TO 49 COPY OF ACCOUNT OPENING FORM WITH THE BANK; COP Y OF FORM 60 OF SH. AMIT SAHI; COPY OF ANNEXURE TO ACCOUNT OPENING FORM; SPECIMEN SIGNATURE CARD OF SH. AMIT SAHI; COPIES OF VARIOUS CHEQUES WITHDRAWN AND FROM THE ACCOUNT SIGNED BY SH. AMIT SAHI; COPY OF BANK STATEMENT OF A/C NO. 17660 IN THE NAME OF SH AMIT SAHI AND SH . KAMLESH KUMAR SAHI; COPIES OF VARIOUS VOUCHERS FOR DEPOSITS AND WITHDRAWALS FROM THE ACCOUNT; COPY OF ORDER PASSED BY THE ITO D ATED 26.12.2008; COPY OF ORDER DATED 31.1.2012 PASSED BY THE CIT-21, NEW DELHI AND COPY OF ORDER PASSED BY THE ITAT. I FIND THAT IT WAS THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT THE ABOVE DOCU MENTS WERE AVAILABLE TO BOTH THE AUTHORITIES I.E. AO & CIT(A) AND NO FRESH /NEW EVIDENCE IS ADDUCED AT THIS STAGE BEFORE THE TRIBUN AL. I FURTHER FIND THAT THE LD.CIT(A) HAS NOT CONSIDERED THE VITAL AND LEGALLY TENABLE DOCUMENTARY EVIDENCES TENDERED, AS AFORESAID, WHICH GOES TO THE ROOT OF THE MATTER AND ARE VERY ESSENTIAL TO ADJUDICATE THE ISSUE IN DISPUTE. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT IN THIS CASE THE ISSUE IN DISPUTE NEEDS TO BE REMITTED BACK TO THE FILE OF THE LD.CIT(A) TO DECIDE THE SAM E AFRESH, AS PER LAW. ACCORDINGLY, THE ISSUE IN DISPUTE IS SET ASIDE AND RESTORED BACK TO THE FILE OF THE LD.CIT(A) TO CONSIDER THE ISSUE IN DISP UTE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO CONSIDER ALL THE DOCUMENTS AVAILABLE WITH THE ASSESSEE. TH E ASSESSEE IS ALSO DIRECTED TO SUBMIT ALL THE NECESSARY DOCUMENTS BEFO RE THE LD.CIT(A) TO 4 SUBSTANTIATE HIS CASE AND FULLY COOPERATE WITH THE LD.CIT(A) DURING THE PROCEEDINGS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 20/03/2017 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