M/s. Sanjeev Roy, New Delhi V. ITO, New Delhi

ITA 4860/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5194 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 12-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: PRABHAT KUMAR
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4860/DEL/2016 ASSESSMENT YEAR: 2008-09 SANJEEV ROY, VS. ITO, WARD 20(3), G-3/36, MODEL TOWN, NEW DELHI NEW DELHI 110 009 (PAN: AAHPR6112M) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PRABHAT KUMAR, CA REVENUE BY : SH. T. VASANTHAN, SR. DR ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 28.5.2016 OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS)- 12, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND T HE LAW, THE ORDER PASSED BY CIT(A) CONFIRMING THE ADDITIONS TO THE EXTENT OF RS. 4,81,940- U/S 68 AND CONFIRMING DISALLOWANCE OF SHARE LOSS OF RS. 6,72,659/- IS BAD AND ILLEGAL. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND THE LAW, THE ORDER PASSED BY CIT(A) ENHANCING ADDITIONS BY A SUM OF RS. 6,68,000/- ON ACCOUNT OF CASH DEPOSIT IS BAD AND ILLEGAL. 2 3. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS. 4,81,940/- ON SURMISES AND CONJECTURES IGNORING THE FACT THAT THE LD. AO IN HIS REMAND REPORT HAD STATED THAT THESE SUMS ARE EXPLAINABLE WITH REFERENCE TO THE DETAILS AND DOCUMENTS FURNISHED BY ASSESSEE DURING COURSE OF APPELLATE PROCEEDINGS. 4. THE LD. CIT(A) HAS ERRED IN CONFIRMING DISALLOWA NCE OF SHARE LOSS OF RS. 6,72,659/- AND CONSEQUENTLY DENYING CARRY FORWARD OF SUCH LOSS TO THE EXTENT OF RS. 5,86,671/- ON MISCONCEPTION OF THE FACTS THAT EVEN AFTER SUFFERING LOSS HOW THE ASSESSEE RECEIVED THE SUM FROM THE BROKER, CLEARLY DEMONSTRATING LACK OF UNDERSTANDING OF STOCK MARKET BUSINESS AT THE END OF LD. CIT(A). 5. LD. CIT(A) HAS ERRED IN ENHANCING THE INCOME BY A SUM OF RS. 6,68,000/- ON ACCOUNT OF CASH DEPOSIT DISREGARDING THE EVIDENCE(S) PLACED ON RECORD BY THE APPELLANT AND CONSIDERED BY ASSESSING OFFICER DURING COURSE OF ASSESSMENT PROCEEDINGS. 6. THE APPELLANT CRAVES LEAVE TO ADD, MODIFY, ALTER , WITHDRAWAL OF GROUND IN COURSE OF APPELLANT PROCEEDINGS. 3 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE, HA S STATED THAT ASSESSEE HAS FILED ALL THE NECESSARY DOCUMENTARY E VIDENCES BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) WHICH HAS N OT BEEN CONSIDERED BY BOTH THE AUTHORITIES. HE REQUESTED T HAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO WITH THE DIRECTIONS TO DECIDE THE SAME AS PER LAW, AFTER GIVING ADEQUATE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE ALSO UNDERTAKES TH AT IF THE MATTER IS SET ASIDE TO THE AO, THE ASSESSEE WILL APPEAR BEFO RE THE AO AND FULLY COOPERATE WITH THE AO AND WILL NOT TAKE ANY UNNECES SARY ADJOURNMENT. LD. COUNSEL OF THE ASSESSEE ALSO FILED A PAPER BOOK CONTAINING PAGES NO. 1 TO 75 HAVING THE INCOME TAX RETURN, AY 2008-09; REMAND REPORT BY AO DATED 12.3.2014; UTI B ANK STATEMENT (4669); PERTAINING TO SANJEEV ROAY & HUF; STATEMENT OF ACCOUNT INDIABULLS SECURITIES LTD; STATEMENT OF ACCOUNT INFOLINE SECURITIES PVT. LTD; STATEMENT OF PROFIT/LOSS ON SH ARE TRADING; ICICI BANK STATEMENT (1511) OF APPELLANT; ICICI BANK STAT EMENT (8867) OF APPELLANT; AXIS BANK STATEMENT (4191) OF APPELLANT; PURCHASE INVOICE IN RESPECT OF JEWELLERY PURCHASED BY JEWELE RS FROM APPELLANT; SALE RECEIPT FOR CAR SOLD BY APPELLANT. LD. COUNSE L OF THE ASSESSEE ALSO CERTIFIED THAT THE ABOVE DOCUMENTS WERE PLACED ON RECORD OF AUTHORITIES BELOW. HE FURTHER STATED THAT THESE DOC UMENTS WERE NOT APPROPRIATELY CONSIDERED BY THE AUTHORITIES BELOW. 5. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ORDERS OF THE AUTHORITIES BELOW. I F IND THAT LD. COUNSEL OF THE ASSESSEE FILED A PAPER BOOK CONTAINING PAGE S NO. 1 TO 75 HAVING THE INCOME TAX RETURN, AY 2008-09; REMAND RE PORT BY AO DATED 12.3.2014; UTI BANK STATEMENT (4669); PERTAI NING TO SANJEEV 4 ROAY & HUF; STATEMENT OF ACCOUNT INDIABULLS SECU RITIES LTD; STATEMENT OF ACCOUNT INFOLINE SECURITIES PVT. LTD ; STATEMENT OF PROFIT/LOSS ON SHARE TRADING; ICICI BANK STATEMENT (1511) OF APPELLANT; ICICI BANK STATEMENT (8867) OF APPELLANT ; AXIS BANK STATEMENT (4191) OF APPELLANT; PURCHASE INVOICE IN RESPECT OF JEWELLERY PURCHASED BY JEWELERS FROM APPELLANT; SAL E RECEIPT FOR CAR SOLD BY APPELLANT, WHICH HAS NOT BEEN CONSIDERED B Y THE AO. IN THE INTEREST OF JUSTICE, I AM OF THE VIEW THAT ISSUE IN DISPUTE DESERVE TO BE SET ASIDE TO THE FILE OF THE AO WITH THE DIREC TIONS TO DECIDE THE SAME AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AFTER APPRECIATING THE DOCUMENTARY E VIDENCE FILED IN THE SHAPE OF PAPER BOOK, AS MENTIONED ABOVE. THE AS SESSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH THE AO AND DID NOT SEEK ANY UNNECESSARY ADJOURNMENT AND PRODUCE ALL THE DOCUMEN TARY EVIDENCES BEFORE HIM. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 02-08-2017. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 02-08-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.