NARESH KUMAR SINGAL, FARIDABAD V. ITO, WARD- 2(1), FARIDABAD

ITA 4928/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8404 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 11-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: HARVINDER S BINDRA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4928/DEL/2018 ASSESSMENT YEAR: 2014-15 SH. NARESH KUMAR SINGAL, VS. ITO, WARD 2(1) H.NO. 114, SECTOR-21 C, FARIDABAD FARIDABAD (PAN: AEZPS6193R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. HARVINDER S. BINDRA, CA REVENUE BY : SH. S.L. ANURAGI, SR. DR. ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 25.4.2018 OF THE LD. CIT(A), FARIDABAD PERTAINING TO ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS:- I) THAT THE ORDER PASSED BY THE LD. CIT(A) U/S. 250 OF THE I.T. ACT, 1961 IS BAD IN LAW AND NOT JUSTIFIED BECA USE LD. CIT(A) HAS DISMISSED THE APPEAL SIMPLY ON ACCOUNT O F NON-PROSECUTION OF THE APPEAL BY THE APPELLANT WITH OUT APPRECIATING THE JUDGMENT OF HONBLE BOMBAY HIGH CO URT IN CASE OF CIT (CENTRAL) NAGPUR VS. PREMKUMAR ARJU NDAS LUTHRA (HUF), (2016) 69 TAXMANN.COM 407 (BOMBAY), WHERE IT HAS BEEN HELD THAT LAW DOES NOT EMPOWER LD . CIT(A) TO DISMISS THE APPEAL FOR NON-PROSECUTION. II) THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FACTS I N CIRCUMSTANCES OF THE CASE IN UPHOLDING ADDITION OF RS.37,94,312/- MADE U/S 57 OF THE IT ACT AS INCOME FROM 2 UNDISCLOSED SOURCES BY DISALLOWING THE CLAIM OF EXEMPTION U/S 10(38) OF THE LTCG EARNED ON THE SHAR ES OF PUBLIC LIMITED COMPANY COMPLYING WITH ALL THE REQUIREMENTS LAID DOWN IN THE ABOVE SECTION TO CLAI M THE EXEMPTION AND ACTION OF THE AO IS BASED ON CONJECTU RES AND SURMISES. III) THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FACTS IN CIRCUMSTANCES OF THE CASE IN UPHOLDING ADDITION OF RS.37,94,312/- BY RELYING ON THE PERCEPTION BASED O N THE GENERALISED MATERIAL WITHOUT APPLYING THE SAME ON T HE APPELLANT WITH THE CORROBORATIVE FACTS AND IN THE A BSENCE OF WHICH THE ORDER UNDER APPEAL IS NOT IN CONFORMIT Y WITH PRINCIPLE OF NATURAL JUSTICE. IV) THE LD. CIT(A) HAS ERRED IN UPHOLDING ADDITION OF RS.37,94,312/- WHICH IS BAD IN LAW AS THE SAME HAS BEEN MADE WITHOUT THE APPELLANT BEING PROVIDED WITH THE INCRIMINATING MATERIAL AND CROSS EXAMINATION OF THE MATERIAL AND STATEMENTS ON THE BASIS OF WHICH THE INVESTMENT OF THE APPELLANT IS CHARACTERIZED AS PEN NY STOCK AND LD. AO HAS SIMPLY RELIED ON THE REPORTS/ INFORMATION WHICH ARE CONTRARY TO THE EVIDENCE SUBM ITTED BY THE APPELLANT IN SUPPORT OF THE TRANSACTION OF T HE PURCHASE/SALE OF SHARES. V) THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS OF TH E CASE IN GIVING A FINDING THAT THE LD. AO HAS ESTABLISHED THAT ASSESSEE HAS INTRODUCED HER ACCOUNTED MONEY IN GARB OF LONG TERM CAPITAL GAINS AND RESORTED TO SHAM DEVICE S BASED ON DEEP ANALYSIS DONE BY THE AO. VI) THE ORDER OF LD. AO CONFIRMED BY LD. CIT(A) IS NOT SUSTAINABLE IN LAW AS THE SAME HAS BEEN PASSED WITH OUT ISSUING NOTICE/SERVING A NOTICE U/S 143(2) OF IT AC T WITHIN THE TIME LIMIT LAID DOWN UNDER ABOVE SECTION. 3 VII) THE APPELLANT CRAVES LEAVE TO ADD, DELETE, MODIFY / AMEND THE ABOVE GROUNDS OF APPEAL WITH THE PERMISSI ON OF THE HONBLE APPELLATE AUTHORITY. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS NOT GIVEN SUF FICIENT OPPORTUNITY TO SUBSTANTIATE ITS CLAIM IN PRODUCING THE NECESSA RY EVIDENCES AND PASSED THE EXPARTE ORDER. HENCE, HE REQUESTED THA T THIS MATTER MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION AND DECIDE ON MERIT, AFTER GIVING ADEQUATE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR HAS NOT RAISED OBJECTI ON TO THE REQUEST OF THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. AFTER PERUSING THE RELEVANT RECORDS AVAILABLE WITH ME AL ONGWITH THE ORDERS OF THE REVENUE AUTHORITIES, I AM OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE IN SUBSTANTIATING ITS CLAIM. THEREFORE, IN THE INTER EST OF JUSTICE, I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. 4 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 01-01-2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DT. 01.01.2019 SR BHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES 5