Shri Ashok Nanchahal, New Delhi V. ACIT, New Delhi

ITA 4827/DEL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4198 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 03-08-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 23-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BA RANWAL
• Assessee Lawyers: T R TALWAR
• Keywords: Opportunity of being heard

Judgement Text

PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-482 7/DEL/2015 (ASSESSMENT YEAR- 2011-12) ASHOK NANCHAHAL, 2474, NALWA STREET, PAHARGANJ, NEW DELHI-110055. PAN-ACKPN0993P (APPELLANT) VS ACIT, CIRCLE-38(1), NEW DELHI (RESPONDENT) APPELLANT BY SH.T.R.TALWAR, ADV. RESPONDENT BY MS. ANIMA BAR A NWAL, SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 19.05.2015 OF CIT(A)-20, NEW DELHI PERT AINING TO 2011-12 ASSESSMENT YEAR. ALTHOUGH VARIOUS GROUNDS HAVE BEEN RAISED BY THE AS SESSEE IN THE PRESENT APPEAL. HOWEVER, AT THE TIME OF HEARING, BOTH THE PARTIES A DDRESSED ONLY GROUND NO. 2 WHICH READS AS UNDER:- 2. IN IGNORING THE FACT THAT THE ASSESSING OFFICER HAD WRONGLY ADDED RS.1,00,835/- TO THE RETURNED INCOME OF THE ASSESSE E ON ACCOUNT OF ADDITIONAL GROSS RECEIPTS FROM M/S SINDH PROJECTS MASONARY DAM DIVISION, WHICH WAS BEING CONTESTED IN APPEAL BEFORE THE CIT(A), WHILE THE SAME REPRESENTED TDS ON THE GROSS RECEIPTS OF RS.42,72,686/- RECEIVED BY THE ASSESSEE FROM THE SAID CLIENT AND DULY ENTERED BY HIM IN HIS BOOKS OF ACCO UNTS AND IN HIS TURNOVER. 2. INVITING ATTENTION TO THE ASSESSMENT ORDER, IT W AS SUBMITTED BY THE LD. AR THAT THE ASSESSEE DECLARED AN INCOME OF RS.30,83,170/- ON 30 /09/2011. THE ASSESSEE, IT WAS SUBMITTED IS ENGAGED IN THE BUSINESS OF INSTALLATIO NS OF POTACABIN MADE UP OF FIBER, DATE OF HEARING 0 4 .08.2016 DATE OF PRONOUNCEMENT 2 1 . 1 0.2016 I.T.A .NO.-4827/DEL/2015 PAGE 2 OF 4 PLYWOOD, WOOD AND G.I. SHEETS ETC. BASICALLY COMPL ETE POTA CABIN ALSO CONSTRUCTED AND INSTALLED. 2.1. IT WAS SUBMITTED THAT SINCE AT THE TIME OF FIL ING OF THE RETURN, THE ASSESSEE HAD NOT RECEIVED THE FULL PARTICULARS OF THE DEDUCTION MADE BY M/S SINDH PROJECTS MASONRY AMOUNTING TO RS.1,00,835/- THE ASSESSEE FILED REVIS ED COMPUTATION OF INCOME IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESS ING OFFICER BEING OF THE VIEW THAT IT WAS NOT REFLECTED IN THE BOOKS OF ACCOUNTS OF THE A SSESSEE ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 3. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE FILED FRESH EVIDENCES AND SUBMITTED THAT THE NECESSARY CORRECTIONS HAD BEEN C ARRIED OUT IN THE COMPUTATION OF INCOME. HOWEVER, DESPITE THE AVAILABILITY OF REMAN D REPORT WHERE THE ASSESSING OFFICER HAD ACCEPTED THAT THE RECEIPT OF RS.42,72,686/- FRO M M/S SINDH PROJECTS MASONARY WERE REFLECTED THEREIN THE CIT(A) DID NOT APPRECIATE THI S FACT. 4. INVITING ATTENTION TO THE PAPER BOOK PAGES 4 AND 5, IT WAS SUBMITTED THAT IT IS A COPY OF FORM NO.16A ISSUED BY M/S E.E.SINDH PROJECT MASON RY DAM DIVISION MANIKHADA ON 12.10.2012 WHERE THE BREAKUP OF THESE SPECIFIC AMOU NTS DEDUCTED IS INDICATED. AS A RESULT OF THIS FACT, IT WAS HIS SUBMISSION THAT THE RETURN WAS REVISED BY THE ASSESSEE BY WAY OF FILING A REVISED COMPUTATION OF INCOME AND THESE AR E REFLECTED IN THE SAID REVISED COMPUTATION FILED BEFORE THE AO. ATTENTION WAS IN VITED TO THE FACT THAT THE RETURN WAS FILED ON 30.09.2011. IN THE CIRCUMSTANCES AND IN THE FAC E OF THE REMAND REPORT WHERE ALL THESE FACTS HAVE BEEN EXAMINED, ADDITION ON THIS ACCOUNT WAS NOT WARRANTED ON FACTS. REFERRING TO THE ORDER OF THE CIT(A), IT WAS HIS SUBMISSION T HAT THE LD. CIT(A) MISDIRECTED HERSELF I.T.A .NO.-4827/DEL/2015 PAGE 3 OF 4 WHILE TRYING TO DO A RECONCILIATION OF THE 26AS WIT H THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND RELYING UPON THE COMPUTATION OF INCOME FILED OR IGINALLY. 4.1. THE LD. SR. DR RELYING UPON THE ORDERS OF THE TAX AUTHORITY SUBMITTED THAT THE ASSESSEE MAY NEED TO DEMONSTRATE THAT THE RETURN FI LED COULD BE REVISED AND WHETHER THE REVISED COMPUTATION WAS ACCEPTED BY THE AO OR NOT. HOWEVER, SHE HAD NO OBJECTION IF THE FACTS ARE VERIFIED. 5. THE RECORD SHOWS THAT FRESH EVIDENCE WAS FILED B EFORE THE CIT(A) AND THE RELIANCE HAS BEEN PLACED ON THE REMAND REPORT WHERE FACTS AR E STATED TO BE ACCEPTED HOWEVER ALLEGATION OF CONTRADICTORY STATEMENTS DURING THE A SSESSMENT STAGE ARE RELIED UPON. I FIND THAT THE ISSUE NEEDS TO DECIDED ON THE BASIS OF FAC TS AND EVIDENCES AND NOT NECESSARILY ONLY BY AN ARGUMENT ADVANCED BEFORE THE AO AT THE ASSESS MENT STAGE. AS PER THE RECORD, ASSESSEE CLAIMS RELIEF ON THE BASIS OF AFORESAID FO RM 16A STATED TO BE MADE AVAILABLE TO THE ASSESSEE ONLY ON OR AFTER 12.10.2012 THUS IN THE O RIGINAL COMPUTATION THESE COULD NOT BE REFLECTED. SINCE THE ASPECT HAS NOT BEEN ADDRESSED AND EXAMINED THE IMPUGNED ORDER IS SET ASIDE AND THE LD.CIT(A) IS DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE ADDRESSING THE SPECIFIC DOCUMENT AND INCASE THE CIT(A) IS OF THE V IEW THAT THE SAID EVIDENCE IS NOT A RELEVANT EVIDENCE FOR DECIDING THE ISSUE THEN THE S PECIFIC REASONING AND CONCLUSION IT IS MADE CLEAR IS REQUIRED TO BE SET OUT IN WRITING AFT ER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE MERE ARGUMENT THAT THE SAID PLEA WAS NOT RAISED BEFORE THE AO, IT IS MADE CLEAR SHOULD NOT BE THE BASIS FO R REJECTING THE FACTS AND EVIDENCE IN SUPPORT OF THE ARGUMENT. ACCORDINGLY THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE CIT(A) IN TERMS OF THE ABOVE D IRECTION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* I.T.A .NO.-4827/DEL/2015 PAGE 4 OF 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI