Shri Kamlesh Behari Mathur, Ghaziabad V. DCIT, New Delhi

ITA 4718/DEL/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1665 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 03-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 16-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: INDRA DEV NARAYAN
• Keywords: Principle of natural justice; Additional evidence
• Section: 143(3); 153A; 234B

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC-2: NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4716 TO 4722/DEL/2015 A.YRS. : 2005-06 TO 2011-12 SH. KAMLESH BEHARI MATHUR, VS. ACIT, CENTRAL C IRCLE-20 501, SUNBREEZE TOWER-II NEW DELHI SECTOR-4, VAISHALI, GHAZIABAD (PAN : AEAPM1119E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. INDRA DEV NARAYAN DEPARTMENT BY : SH. RAVI JAIN, CIT(DR) DATE OF HEARING : 03-11-2015 DATE OF ORDER : 03-11-2015 O R D E R THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST T HE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, NEW DELH I DATED 31.3.2015 PERTAINING TO ASSESSMENT YEARS 2005-06 TO 2011-12. SINCE THE ISSUES INVOLVED IN THESE APPEAL ARE COMMON AND IDENTICAL, HENCE, I AM PASSING THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 4716/DEL/2015 (AY 2005-06). 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ASSESSMENT ORDE R DT.28.03.2013 AND UPHOLDING THE ADDITIONS MADE, FOR A.Y.2005-06 U/S 153A RW.S.143(3) OF THE ACT, PASSED BY LD. AO FOR EACH OF 7 ASSESSMENT YEARS FROM 2005-06 TO 2 011-12. 2 2. WITHOUT PREJUDICE TO THE ABOVE, THAT ON THE FACT S AND CIRCUMSTANCES OF THE CASE AND IN LAW, SINCE NO ASSE SSMENT WAS PENDING AND NO INCRIMINATING MATERIAL WAS FOUND, TH E PROVISION OF SEC.153A OF THE ACT IS NOT APPLICABLE AND THE NO TICE ISSUED U/S 153A AND THE ASSESSMENT ORDER PASSED ARE WITHOU T JURISDICTION, VOID-AB-INITIO AND NOT SUSTAINABLE IN LAW. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS GROSSLY ERRED IN LAW, NOT ADMITTING THE EXPLANATION AND ADDITIONAL EVIDENCES FURNISHED DURING THE COURS E OF APPELLATE PROCEEDINGS AND DISMISSING THE APPELLANTS SUBMISSIONS SUMMARILY WITHOUT GIVING ANY COGENT REA SONS. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.1, 08,000/- BEING THE AGGREGATE AMOUNT OF CASH DEPOSITS IN BANK ACCOUNT WITH SBI, IGNORING THE EXPLANATION THAT THESE WERE O N, ACCOUNT OF ADVANCES FOR OR REIMBURSEMENTS OF TRAVEL EXPENSES F ROM EMPLOYER COMPANY AGAINST WHICH THE EXPENSES WERE IN CURRED THROUGH CREDIT CARD. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.5 8,515/- BEING THE AMOUNT OF INVESTMENTS IN SHARES DURING TH E YEAR IGNORING THE EXPLANATION AND WITHOUT GIVING ANY COG ENT REASONS. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.9 6,888/- BEING THE AGGREGATE AMOUNT OF CREDITS / DEPOSITS IN THE ACCOUNT WITH BANK OF RAJASTHAN (BOR) DURING THE YEAR IGNORI NG THE FACTS THAT THEY WERE CLEARLY INDICATED IN THE BANK STATEM ENTS. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS ERRED IN UPHOLDING THE ESTIMATED ADDITI ON OF RS.2 LACS MADE IN THE ASSESSMENT ORDER ON ACCOUNT OF ALL EGED DRAWINGS, IGNORING THE EXPLANATION AND WITHOUT GIVI NG ANY COGENT REASONS. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ASSESSMENT ORDER PASSED BY AO U/S 153(A) 1 143(3) IS WRONG 3 AND BAD IN LAW. THE LD.AO HAS PASSED ASSESSMENT ORDE RS FOR 7 YEARS IN A HIGH ENDED MANNER MAKING INDISCRIMINATE ADDITIONS AS ALLEGED UNEXPLAINED INCOMES OR INVESTMENTS WITHO UT EXERCISE OF SUFFICIENT AND REASONABLE FAIR PLAY AND IGNORING THE PRINCIPLES OF NATURAL JUSTICE. 9. THAT TAX DEMANDED AND INTEREST CHARGED U/S. 234B BEING CONSEQUENTIAL IN NATURE ARE WRONG. 10. THE PENALTY PROCEEDINGS INITIATED U/S. 271(1)(C) O F THE ACT ARE CONSEQUENTIAL AND MECHANICAL AND ARE WRONG. 11. THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PREJ UDICE TO EACH OTHER. 12. THE APPELLANT SEEKS LEAVE TO ADD, ALTER, AMEND, O R ABANDON ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING OF THE APPEAL. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE ASSESSEE HAS RAISED ALMOST 12 GROUNDS OF APPEAL, BUT DURING THE HEARING, MAINLY HE IS PRESSING THE GROUND NO. 3 IN WHICH HE HAS STATED TH AT THE LD. CIT(A) HAS NOT ADMITTED THE EXPLANATION AND ADDITIONAL EVIDENCES F URNISHED DURING THE COURSE OF APPELLATE PROCEEDINGS AND DISMISSING THE APPELLANTS SUBMISSIONS SUMMARILY WITHOUT GIVING ANY COGENT REASONS. HE FURTHER STATED THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER WITHOUT HEARING THE ASSESSEE AND WIT HOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. HE DRAW MY ATTENTION TOWARDS THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND STATED THAT IN THE INTER EST OF JUSTICE, THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A), FOR F RESH DECISION, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HE ARD. 4 5. ON THE CONTRARY, LD. CIT(DR), SHRI RAVI JAIN RELIE D UPON THE ORDER PASSED BY THE LD. CIT(A). 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE REC ORDS, ESPECIALLY THE ORDER OF THE LD. CIT(A) WHO HAS PASSED THE CONSOLIDATED ORD ER FOR THE ASSESSMENT YEARS 2005-06 TO 2011-12. I HAVE SEEN THAT LD. CIT(A) HAS REP RODUCED THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEALS FO R THE ASSESSMENT YEARS IN DISPUTE AND AFTER THAT IN PARA NO. 4.2 OF HIS IMPUGNED ORDE R HAS STATED THAT THE ASSESSEE HAS RAISED SOME ISSUES FIRST TIME BEFORE THE APPEL LATE PROCEEDINGS I.E. AFTER THOUGHT. FINALLY THE ADDITION MADE BY THE AO HAS BE EN UPHELD BY THE LD. CIT(A). AFTER GOING THROUGH THE IMPUGNED ORDER, I AM OF TH E CONSIDERED VIEW THAT LD. CIT(A) HAS PASSED THE IMPUGNED ORDER CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE AND WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. I AM ALSO OF THE VIEW THAT THE ASSESSEE CAN RAISE ANY ISSUE AND FILE ANY EVIDENCE FOR SUBSTANTIATING HIS/HER CLAIM BEFORE THE LD. CIT(A) WHICH CANNOT BE R EJECTED IN A SUMMARILY MANNER WHICH HAS BEEN REJECTED BY THE LD. CIT(A) IN THE IM PUGNED ORDER. I HAVE ALSO PERUSED THE ASSESSMENT ORDER WHICH ALSO CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE IN WHICH NO ADEQUATE OPPORTUNITY WAS PROVIDED TO T HE ASSESSEE. THEREFORE, IN MY CONSIDERED VIEW, THE LD. CIT(A) HAS UPHELD THE ASSESS MENT ORDER CONTRARY TO THE LAW AND FACTS ON THE FILE, SPECIALLY AGAINST THE PRINCI PLE OF NATURAL JUSTICE, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. HENCE, IN THE INTE REST OF JUSTICE, I REMIT THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) FOR FRESH CONSI DERATION, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE AND ALSO CONSIDER THE EVIDENCES/DOCUMENTS, IF ANY, TO BE PRODUCED BY THE ASSESSEE TO SUBSTANTIATING HIS/H ER CLAIM AND DECIDE THE APPEALS, AS PER LAW BY PASSING A SPEAKING ORDER. 5 7. IN THE RESULT, ALL THE 7 APPEALS FILED BY THE ASS ESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/11/2015. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 03/11/2015 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 6