Ankush Gupta, Delhi V. ITO, New Delhi

ITA 4697/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7071 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 23-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 26-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARHAT KHAN
• Keywords: Opportunity of being heard; Principle of natural justice; Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SM C - 3 , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO S . 4697/DEL/2014 : ASSTT. YEAR : 2009 - 10 ANKUSH GUPTA, H - 4 & 5/88, SUVIDHA KUNJ, PITAMPURA DE LHI - 1100 34 VS INCOME TAX OFFICER, WARD - 25(1), NEW DELH I (APPELLANT) (RESPONDENT) PAN NO. A ETPG8736Q ASSESSEE BY : SH. VED JAIN, CA REVENUE BY : SH. FARHAT KHAN , SR. DR DATE OF HEARING : 23.06 .201 6 DATE OF PRONOUNCEMENT : 29 . 06 .201 6 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 23.06.2014 OF LD. CIT(A) - X VI II , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASS ED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)[CIT(A) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN PASSING THE ORDER WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEA RD IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN ITA NO . 4697 /DEL /201 4 ANKUSH GUPTA 2 DIRECTING THE AO TO ASSESS THE INCOME AT RS.36,27,500/ - AS AGAINST INCOME OF RS.2,42,300/ - DECLARED BY THE ASSESSEE. 4(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN ENHANCING THE INCOME OF THE ASSESSEE TO RS.33,85,000/ - AS AGAINST RS.14,78,275/ - ADDED BY THE AO TO THE RETURNED INCOME. (II) ON THE FACTS AND CIRCUMSTANCES O F THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN MAKING ADDITION OF AGGREGATE OF ALL CREDITS OF RS.33,85,000/ - IN THE BANK ACCOUNT IGNORING THE DEBITS IN THE BANK ACCOUNT. (III) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED C IT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT APPRECIATING THE REAL INCOME THEORY WHILE MAKING THE ADDITION OF AGGREGATE OF THE CREDIT ENTRY IN THE BANK ACCOUNT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS A ND IN LAW IN NOT DELETING THE ADDITION OF RS.14,78,275/ - MADE BY THE ASSESSING OFFICER. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION AND FURTHER ENHANCING THE SAME IGNORIN G THE EXPLANATION AND EVIDENCES SUBMITTED BY THE ASSESSEE. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 3. FROM THE ABOVE GROUNDS IT IS GATHERED THAT MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO. 2, RELATES TO THE EX - PARTE ORDER ITA NO . 4697 /DEL /201 4 ANKUSH GUPTA 3 PASSED BY THE LD. CIT(A) WHILE ENHANCING THE ADDITIONS AND NOT GIVING THE OPPORTUNITY OF BEING HEARD. 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 12.03.2010 DECLARING AN INCOME OF RS.2,42,300/ - . LAT ER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE AO ADDED A SUM OF RS.3,38,500/ - BEING 10% OF THE ESTIMATED TRADE BUSINESS AMOUNTING TO RS.33,85,000/ - AND ALSO ADDED 11,39,775/ - BEING THE PEAK CREDIT IN BANK ACCOUNT OF THE ASSESSEE. ACCORDINGLY, THE ASSESSME NT WAS FRAMED AT AN INCOME OF RS.17,20,580/ - . A G AINST THE SAID ASSESSMENT ORDER, T HE ASSESSEE PREFERRED AN APPEAL TO THE LD. CIT(A) WHO ENHANCED THE ADDITION BY MAKING AN ADDITION OF RS.33,85,000/ - TO THE RETURNED INCOME, THE SAID ADDITION WAS ON ACCOUNT O F THE CASH DEPOSITED IN THE BANK ACCOUNT ON DIFFERENT DATES. 5 . BEING AGGRIEVED THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EX - PARTE WITHOUT AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 7 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN T HE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EX - PARTE BY OBSERVING THAT THE ASSESSEE SOUGHT ADJOURNMENTS FROM TIME TO TIME AND ITA NO . 4697 /DEL /201 4 ANKUSH GUPTA 4 DID NOT REPLY TO THE SHOW CAUSE RELATING TO THE ENHANCEMENT. IT IS ALSO NOTICED THAT THE LD. CIT( A) OBSERVED IN PARA 5.1 OF THE IMPUGNED ORDER THAT THE CASE WAS FINALLY FIXED FOR HEAR ING ON 19.06.2014 ON WHICH DATE NO ONE HAS ATTENDED. HOWEVER, NOTHING WAS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE NOTICE FOR HEARING ON THE SAID DA TE WAS SERVED UPON T HE ASSESSEE, THE LD. CIT(A) SIMPLY STATED THAT THE CASE WAS FIXED FOR HEARING ON 19.06.2014. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . IN THE PRESENT CASE, I N MY OPINION, A PROPER AND DUE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE BY THE LD. CIT(A). I, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REMAND THE SAME TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (O RD ER PRONOUNCED IN THE COURT ON 29 /06 /2016 ) SD/ - (N. K. SA INI) ACCOUNTANT MEMBER DAT ED: 29 /06 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR