ITO, New Delhi V. Smt. Mukta Kapoor, New Delhi

ITA 4720/DEL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1847 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 17-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 07-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Business income
• Section: 144

Judgement Text

ITA NO.4720/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 4720 /DEL/2013 A.Y. 200 8 - 0 9 INCOME TAX OFFICER, WARD 46(2), ROOM NO. 307, CIVIC CENTRE, D BLOCK, 3 RD FLOOR, NEW DELHI 1 VS. SMT. MUKTA KAPOOR, R/O FLAT NO. A-63, AYUSH VIHAR, SECTOR-13, DWARKA, NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. P. DAM KANUNJNA, SR. DR ASSESSEE BY : NONE PRESENT DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 1 11 17 77 7- -- -11 1111 11- -- -201 201 201 2015 55 5 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 18 1818 18- -- -11 1111 11- -- -201 201 201 2015 55 5 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THE REVENUE HAS FILED THIS APPEAL ON 07.8.2013 AGA INST THE CONSOLIDATED ORDER DATED 27.5.2013 PASSED BY THE LD. CIT(A)-XXX, NEW DELHI ON THE FOLLOWING GROUNDS:- 1. DELETING THE ADDITION OF RS. 3111671/- AS RIGH TLY MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS WHICH REMAI NED UNEXPLAINED AND THE ADDITION WAS MADE ON THE BASIS OF INFORMATI ON IN HIS POSSESSION: 2. DELETING THE ADDITION OF RS. 3111671/- MADE BY T HE AD WHICH REMAINED UNEXPLAINED AS THE ASSESSEE COULD NOT EXPL AIN THE SOURCE OF CASH DEPOSITS SATISFACTORILY DURING THE REMAND PROC EEDING. ITA NO.4720/DEL/2013 2 3. TREATING THE DEPOSITS IN ASSESSEE'S BANK ACCOUNT AS BUSINESS RECEIPTS AND APPLYING A RATE OF 5% OF THE TURNOVER U/S 44AF OF THE I.T. ACT WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE OF BUSINESS INCOME AND HAS THR OUGHOUT SUBMITTED THAT SHE WAS A SALARIED PERSON. 4. DELETING THE PENALTY U/S 271(1) (C) AMOUNTING TO RS. 1062534/- AS RIGHTLY IMPOSED BY THE AO WITHOUT CONSIDERING THE F ACT THAT THE ASSESSEE DID NOT AVAIL OPPORTUNITIES TO SUBMIT ITS VERSION B OTH AT THE TIME OF SCRUTINY AND PENALTY PROCEEDINGS: 'THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, AD D OR SUBSTITUTE THE GROIN US OF APPEAL.' 2. AT THE TIME OF HEARING, WE NOTICED THAT ASSESSEE HAS FILED 3 APPEALS BEING APPEAL NOS. 1171/11-12, 1177/12-13 & 1178/12-13 BEF ORE THE LD. FIRST APPELLATE AUTHORITY AGAINST THE ORDER OF THE ASSESSING OFFIC ER PASSED U/S. 144 OF THE I.T. ACT, 1961 AND OTHER ORDERS PASSED U/S. 271(1)(B) AND 271(1)(C) OF THE I.T. ACT, 1961 FOR THE ASSESSMENT YEAR 2008-09 AND LD. CIT(A) HAS DECIDED THESE APPEALS VIDE HIS CONSOLIDATED ORDER DATED 27.5.20 13 BY PARTLY ALLOWING THE APPEAL U/S. 144 AND ALLOWED OTHER TWO APPEALS BY D ELETING THE PENALTY U/S. 271(1)(B) & 271(1)(C) IN DISPUTE. 3. AGGRIEVED BY THE CONSOLIDATED ORDER DATED 27.5.2 013, REVENUE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 4. AFTER HEARING THE LD. DR AND PERUSING THE RECORD S, WE FIND THAT IN SPITE OF THE RPAD ISSUED TO THE ASSESSEE TWO TIMES, NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE. THEREFORE, WE DECIDED TO PROCEED EXPARTE ASSESSEE. ITA NO.4720/DEL/2013 3 4.1 WE FIND THAT THE APPEAL FILED BY THE REVENUE IS A DEFECTIVE ONE, BECAUSE THE DEPARTMENT HAS FILED A COMBINED APPEAL BEFORE THE TRIBUNAL AGAINST THE LD. CIT(A)S CONSOLIDATED ORDER DATED 2 7.5.2013 WHICH WERE AGAINST THE SEPARATE ASSESSMENT ORDERS BEING DATED 20.12 .2010 PASSED U/S. 144 OF THE I.T. ACT, 1961 AND OTHER ORDERS PASSED U/S. 2 71(1)(B) AND 271(1)(C) OF THE I.T. ACT, 1961 FOR THE ASSESSMENT YEAR 2008-09, WHICH IS NOT MAINTANINABLE IN THE EYES OF LAW. HOWEVER, AS PER RULES, THE DEPARTMEN T OUGHT TO HAVE FILED SEPARATE APPEALS BEFORE THE TRIBUNAL AGAINST THE CO NSOLIDATED ORDER OF THE LD. CIT(A). THEREFORE, THE PRESENT APPEAL HAS BECOME DEFECTIVE AND IS DISMISSED AS SUCH. BUT IN THE INTEREST OF JUSTICE, THE DEPA RTMENT IS AT THE LIBERTY, IF SO ADVISED, CAN FILE SEPARATE APPEALS BEFORE THE TRIBU NAL, AGAINST THE CONSOLIDATED ORDER DATED 27.5.2013, WHICH WILL BE ENTERTAINED, AS PER RULES. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/11/2015. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [ [[ [PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE: 18-11-2015 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY COPY COPY COPY FORWARDED TO: FORWARDED TO: FORWARDED TO: FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES