ACIT, New Delhi V. Sh. Naresh Kumar Beri, New Delhi

ITA 4733/DEL/2012

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5385 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Delhi
• Next Hearing Date: 07-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Keywords: Capital asset; Opportunity of being heard
• Section: 69C; 68; 69

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH E, NEW DELHI BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 4733/DEL./2012 ASSESSMENT YEAR: 2009-10 A.C.I.T., CIRCLE 44(1), NEW DELHI. (APPELLANT) VS. NARESH KUMAR BERI, D - 36, IFS FLATS, MAYUR VIHAR, NEW DELHI. (RESPONDENT) A PPELLANT BY SH. S.R. SENAPATI, SR. DR RE SPONDENT BY SH. VINOD KUMAR, FCA ORDER PER L.P. SAHU, A.M.: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A)- XXX, NEW DELHI DATED 12.06.2012 FOR THE ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS : 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN; 1. DELETING THE ADDITION OF RS. 11,40,000/- MADE BY THE AO U/S 68 OF THE I.T. ACT, 1961, IGNORING THE FACT THAT THE ASSE SSEE HAD FAILED TO PRODUCE SIGNED/AUTHENTIC ENCASHMENT CERTIFICATES/ME MOS IN SUPPORT OF THIS CLAIM. 2. DELETING THE ADDITION OF RS.2,37,000/- BY IGNO RING THE FACT THAT THE ASSESSEE HAD FAILED TO PRODUCE EVIDENCE OF SOURCE O F PAYMENT OF RS. 2,37,000/- MADE AGAINST HIS CREDIT CARD. DATE OF HEARING 12.03.2018 DATE OF PRONOUNCEMENT 03 .04.2018 ITA NO. 4733/DEL/2012 2 3. DELETING THE ADDITION OF RS. 53,73,860/- BY IG NORING THE FACTS THAT THE ACT OF EXECUTING REGISTRATION DOCUMENTS BEFORE THE SUB-REGISTRAR IV, GHAZIABAD BY THE ASSESSEE IN FAVOUR OF HIS BROT HER FOR A SALE CONSIDERATION COMES WITHIN THE AMBIT OF TRANSFER IS ALSO CONSIDERED A TRANSFER OF CAPITAL ASSET U/S 2 (47) OF THE I.T.ACTL 961 AND SUCH A PROPERTY ACT AND AS SUCH IT IS SUBJECT TO TAX ON CA PITAL GAINS. 4. DELETING THE ADDITION OF RS. 14,00,000/- MADE BY THE A.O U/S 69 OF THE I.T. ACT , 1961 BY IGNORING THE FACT THAT THE AS SESSEE HAD FAILED TO EXPLAIN THE SOURCE OF INVESTMENT TO PURCHASE THE PR OPERTY AT PLOT NO.M-28,1252, VASUNDHRA , GHAZIABAD. 5. DIRECTING THE ASSESSING OFFICER TO WITHDRAW TH E PENALTY PROCEEDINGS INITIATED U/S 271 (1) (C) OF THE ACT. 2. FROM THE AFORESAID GROUNDS OF APPEAL, IT EMERGES OUT THAT THE REVENUE HAS CHALLENGED THE DELETION OF FOLLOWING ADDITION : (I). ADDITION OF RS.11,40,000/- MADE U/S. 68 (II). ADDITION OF RS.2,37,000/- MADE U/S. 69C (IV). ADDITION OF RS.53,73,860/- AS INCOME FROM CA PITAL GAIN (IV). ADDITION OF RS.14,00,000/- U/S. 69 3. THE LEARNED DR, AT THE OUTSET, SUBMITTED THAT TH E LD. CIT(A) HAS FAILED TO CONSIDER THE OBJECTIONS RAISED BY THE ASSESSING OFF ICER ON EACH AND EVERY ISSUE FOR MAKING THE ADDITIONS, BUT HAS PASSED A NON-SPEA KING ORDER, WHICH IS NOT SUSTAINABLE IN THE EYE OF LAW. IT WAS SUBMITTED THA T THE LD.CIT(A) HAS ACCEPTED SUCH EVIDENCES, WITHOUT MAKING PROPER VERIFICATION, THE AUTHENTICITY OF WHICH WAS SUSPECTED BY ASSESSING OFFICER AFTER MAKING APP ROPRIATE PROBE. IT IS ALSO STATED THAT THE LD. CIT(A) HAS STRAIGHTWAY ACCEPTED THE SUBMISSIONS OF THE ASSESSEE AND EVIDENCES PRODUCED BEFORE HIM WITHOUT SEEKING ANY COMMENTS FROM THE ASSESSING OFFICER OR GIVING HIM ANY OPPORT UNITY TO REBUT THE SAME. ITA NO. 4733/DEL/2012 3 4. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE RE ITERATED THE SUBMISSIONS MADE BEFORE THE FIRST APPELLATE AUTHORITY AND SUBMI TTED THAT THE LD. CIT(A) HAS PASSED A REASONED ORDER, WHICH NEEDS NO INTERFERENC E. 5. AFTER HEARING THE SUBMISSIONS OF BOTH THE PARTIE S AND HAVE GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD AND WE FIND THAT THE LD. CIT(A) WHILE DELETING ALL THE ADDITIONS MADE BY ASSESSING OFFICE R HAS FAILED TO REBUT THE OBJECTIONS RAISED BY ASSESSING OFFICER ON THE REPLI ES FILED BY THE ASSESSEE AND SUPPORTING DOCUMENTARY EVIDENCE PRODUCED. IN ORDER TO EXAMINE THE VERACITY OF ASSESSEES REPLY AND THE ENCASHMENT MEMOS SUBMITTED , ON ISSUE NO. 1, THE ASSESSING OFFICER MADE ENQUIRIES FROM FIRST MONEY C HANGER, NAMELY UAE EXCHANGE & FINANCIAL SERVICES LTD. NOIDA WHO DENIED TO HAVE MADE ANY TRANSACTION WITH THE ASSESSEE ON THE GIVEN DATES, T HE DETAILS OF WHICH ARE GIVEN AT PAGES 3 TO 6 OF THE ASSESSMENT ORDER. WHEN THE A SSESSEE WAS APPRISED OF THE ENQUIRY RESULT, THE ASSESSEE SUBMITTED THE ENCASHME NT MEMOS OF OTHER MONEY CHANGER, NAMELY, R.R. SEN & BROS PVT. LTD., SECTOR 18 NOIDA TO JUSTIFY ITS CLAIM, WHICH WERE ALSO FOUND TO HAVE SEVERAL DISCREPANCIES , AS NOTED BY THE ASSESSING OFFICER AT PAGES 7, 8 & 9 OF THE ASSESSMENT ORDER. HOWEVER, THE LD. CIT(A) WHILE DELETING THE ADDITION DID NOT BOTHER TO REBUT THE O BJECTIONS RAISED BY THE ASSESSING OFFICER ON THIS COUNT. SIMILARLY, THERE W AS DIFFERENCE IN AMOUNT DEPOSITED IN THE BANK AS PER AIR INFORMATION AND TH AT DECLARED BY THE ASSESSEE, WHICH TOO HAS BEEN CASUALLY DEALT WITH BY THE LD. C IT(A) AND HAS NOT MET OUT THE OBJECTION OF UNDERSTATEMENT OF CREDITS. SIMILAR IS THE POSITION WITH RESPECT TO OTHER TWO ADDITIONS, ON WHICH THE ASSESSING OFFICER HAS MADE AN ELABORATE DISCUSSION AND HAS RAISED VARIOUS DOUBTS ON THE EXP LANATION OF THE ASSESSEE REGARDING PURCHASE AND SALE OF PROPERTY AND HAS ALS O CONSIDERED THE SALE DEEDS. HOWEVER, THE LD. CIT(A) HAS DELETED THE ADDITIONS A FTER ACCEPTING THE SIMILAR ITA NO. 4733/DEL/2012 4 REPLIES OF THE ASSESSEE IN A VERY SLIP SHOD MANNER WITHOUT MEETING OUT THE OBJECTIONS OF THE ASSESSING OFFICER. WE, THEREFORE, FIND THAT THE IMPUGNED ORDER IS NOT A SPEAKING ORDER, WHICH CANNOT BE SUPPORTED AT ALL. IN PRESENCE OF ALL THESE FACTS, WE DEEM IT APPROPRIATE TO REMIT THE CASE BAC K TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE APPEAL AFRESH AFTER MEETING OUT AL L THE OBJECTIONS RAISED BY THE ASSESSING OFFICER IN SPEAKING TERMS AND AFTER GIVIN G REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. ACCORDINGLY, THE A PPEAL OF THE REVENUE DESERVES TO BE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD APRIL, 2018. SD/- SD/- (BHAVNESH) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 RD APRIL, 2018 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI