Anil Kumar Kharbanda, New Delhi V. ITO WARD - 49(3), New Delhi

ITA 492/DEL/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6619 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 27-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 68

Judgement Text

ITA NO.-492/DEL/2020 ANIL KUMAR KHARBANDA. PAGE 1 OF 5 THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: SMC: NEW DELHI) (THROUGH VIDEO CONFERENCING) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 492/DEL/2020 ( ASSESSMENT YEAR: 2015-16) ANIL KUMAR KHARBANDA, NEW DELHI. VS. ITO, WARD 49(3), NEW DELHI. APPELLANT RESPONDENT PAN NO: AOSPK8718Q ASSESSEE BY : NONE REVENUE BY : SHRI R.K. GUPTA, SR. DR PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL BY ASSESSEE IS FILED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-17, NEW DELHI, DATED 27.09.2019 FOR ASSESSMENT YEAR 2015-16. GROUNDS TAKEN IN THIS APPEAL OF ASSESSEE ARE AS UNDER: 1. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE LD. CIT(A) HAD ERRED IN APPROVING THE ID. AOS ARBITRARY AND ILLEGAL ACTION OF DOUBTING THE GENUINENESS OF THE LTCG WHICH AROSE TO THE ASSESSEE ON SALE OF 25000 SHARES OF LIFELINE DRUGS & PHARMA LIMITED AND CONSEQUENTLY REJECTING THE ASSESSES CLAIM OF EXEMPTION U/S 10(38). ITA NO.-492/DEL/2020 ANIL KUMAR KHARBANDA. PAGE 2 OF 5 2. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE CLAIM OF EXEMPTION U/S 10(38) IN RESPECT OF LTCG AROSE ON SALE OF 25000 SHARES OF LIFELINE DRUGS & PHARMA LIMITED, OUGHT TO HAD BEEN ALLOWED. 3. THAT THE APPELLATE ORDER PASSED BY THE LD. CIT(A) IS LIABLE TO BE SET- ASIDE AND ANNULLED, BECAUSE THE PRINCIPLE OF NATURAL JUSTICE WAS VIOLATED. 4. THAT THE ORDERS OF THE LOWER AUTHORITIES DESERVE TO BE SET ASIDE BECAUSE NO DIRECT EVIDENCE, EITHER TO DISPROVE THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE OR TO SUPPORT THE BASELESS PRESUMPTIONS/ASSUMPTIONS WHICH RESULTED INTO ADDITION U/S 68 AS WELL AS REJECTION OF CLAIM U/S 10(38), WAS BROUGHT ON RECORD BY THE LOWER AUTHORITIES. DURING THE COURSE OF APPELLATE PROCEEDINGS, VIDE REPLY DATED 20.09.2019 THE ASSESSEE HAD MADE A REQUEST TO THE LD. CIT(A) 'TO KINDLY ARRANGE TO PROVIDE CERTIFIED TRUE COPIES OF ALL THE ENTIRE MATERIAL INCLUDING THE PRE RECORDED STATEMENTS TO THE ASSESSEE AND IMPART NATURAL JUSTICE TO THE ASSESSEE. AFTER GETTING SUCH MATERIAL INCLUDING THE PRE-RECORDED STATEMENTS, THE ASSESSEE WISHES TO CROSS EXAMINE THE CONCERNED PERSONS WHO HAVE ALLEGEDLY TOLD SOMETHING AGAINST THE ASSESSEE IN PARTICULAR. THE ASSESSEE HEREBY MAKES IT CLEAR THAT THE ASSESSEE IS WILLING TO BEAR THE EXPENSES WHICH MAY BE INCURRED IN CONNECTION WITH CALLING THE SUCH CONCERNED PERSONS/BROKERS/PARTIES.' HOWEVER, INSTEAD OF SUPPLYING THE SAME THE LD. CIT(A) HAD PASSED THE APPELLATE ORDER. 5. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE INVOCATION OF PROVISION OF SECTION 68 IS ILLEGAL IN AS MUCH AS THERE IS NO RECORDING IN THE ASSESSMENT ORDER THAT THE BOOKS OF ACCOUNT WERE EXAMINED AND DURING THE EXAMINATION, SUCH ENTRIES WERE FOUND CREDITED IN THE BOOKS OF ACCOUNT. AS A MATTER OF FACT THE SALE PROCEEDS OF SHARES WERE CREDITED IN THE SB ACCOUNT PASSBOOK OF THE ASSESSEE ISSUED BY AXIS BANK, WHICH WAS CERTAINLY NOT THE BOOK OF ACCOUNT OF THE ASSEESSE. 6. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE INVOCATION OF PROVISION OF SECTION 68 APROPOS THE ADDITION OF RS. 1,33,278/- (WHICH AMOUNT WAS WORKED OUT BY APPLYING RATE OF 2% ON RS. 66,63,899/-] ITA NO.-492/DEL/2020 ANIL KUMAR KHARBANDA. PAGE 3 OF 5 IS ILLEGAL, FIRSTLY BECAUSE NO SUCH AMOUNT WAS EVER RECEIVED BY THE ASSESSEE AND SECONDLY BECAUSE IN AS MUCH AS THE ASSESSEE WAS NEITHER REQUIRED UNDER THE LAW TO MAINTAIN BOOKS OF ACCOUNT, NOR HAD MAINTAINED BOOKS OF ACCOUNT. FURTHER, THERE IS NO RECORDING IN THE ASSESSMENT ORDER THAT THE BOOKS OF ACCOUNT WERE EXAMINED AND DURING THE EXAMINATION, SUCH ENTRY OF RS. 1,33,278/- WAS FOUND CREDITED IN THE BOOKS OF ACCOUNT. (B) AT THE TIME OF HEARING, WE TOOK NOTICE OF EMAILED LETTER SENT BY SRI SANJEEV BHATIA, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. IN THIS LETTER, IT HAS BEEN INTIMATED THAT THE ASSESSEE WISHES TO WITHDRAW THE APPEAL IN VIEW OF THE FACT THAT THE APPELLANTS DECLARATION UNDER VIVAD SE VISHWAS SCHEME, 2020 HAS BEEN ACCEPTED. A COPY OF FORM-3 DATED 24.12.2020 ISSUED BY DESIGNATED AUTHORITY UNDER VSVS WAS ALSO ATTACHED ALONGWITH THIS LETTER. IN VIEW OF THIS, THE LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE (LD. SR. DR, FOR SHORT) SUBMITTED BEFORE US THAT THIS APPEAL MAY BE TREATED AS WITHDRAWN AND MAY BE DISMISSED ON ACCOUNT OF THE AFORESAID VSVS. AFTER DUE CONSIDERATION, AND IN VIEW OF THE FOREGOING; WE TREAT THIS APPEAL AS WITHDRAWN ON ACCOUNT OF THE AFORESAID VSVS. ACCORDINGLY, THIS APPEAL IS DISMISSED, AS WITHDRAWN. (B.1) BEFORE WE PART, WE HEREBY CLARIFY, BY WAY OF ABUNDANT CAUTION, THAT IF FOR SOME REASON IT IS FOUND BY ASSESSEE THAT THE DISPUTES UNDER THIS APPEAL BEFORE US ARE NOT FULLY SETTLED UNDER THE AFORESAID VSVS, THEN ASSESSEE WILL BE AT LIBERTY TO APPROACH ITAT FOR RESTORATION OF THIS APPEAL, IN ACCORDANCE WITH LAW. (C) IN THE RESULT, THIS APPEAL IS DISMISSED. ITA NO.-492/DEL/2020 ANIL KUMAR KHARBANDA. PAGE 4 OF 5 THIS ORDER WAS ORALLY PRONOUNCED ON 07 TH SEPTEMBER, 2021 IN OPEN COURT, IN THE PRESENCE OF SR. DR FOR THE REVENUE, AFTER CONCLUSION OF THE HEARINGS. NOW THIS ORDER IN WRITING IS SIGNED TODAY ON 09/09/21. SD/- SD/- (DIVA SINGH) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09/09/21 (POOJA) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.-492/DEL/2020 ANIL KUMAR KHARBANDA. PAGE 5 OF 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER