Pramod Kumar Sharma, Meerut V. ACIT(OSD), Ward-2(1), Meerut

ITA 4933/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6888 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: MAYANK MAHESHWARI
• Keywords: Opportunity of being heard; Tangible material
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4933/DEL/2018 ASSESSMENT YEAR: 2010-11 PRAMOD KUMAR SHARMA, VS. ITO, WARD 2(1), C/O SH. C.S. ANAND, ADVOCATE NEW DELHI 104, PANKAJ TOWER, 10, LSC, SAVITA VIHAR, DELHI 92 (PAN: AHNPS9561Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. C.S. ANAND, ADV. & SH. M AYANK MAHESHWARI, ADV. REVENUE BY : SH. SL ANURAGI, SR. DR. ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 14.5.2018 OF THE LD. CIT(A), MEERUT PERTAINING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE ID. CIT(A) HAD ERRED IN REJECTING THE APPE LLANT'S CLAIM THAT THE ID. A.O. HAD PASSED THE ASSESSMENT O RDER, WITHOUT GIVING SUFFICIENT OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. THE ID. A.O. HAD NEITHER COMMUNICATED THE NEXT DATE OF HEARING TO THE ASSESSEE W.R.T. THE ASS ESSEE'S APPLICATION DT. 24.07.2017 SEEKING ADJOURNMENT, NOR ISSUED ANY NOTICE OF HEARING THEREAFTER DURING THE PERIOD 24.07.2017 TO 22.12.2017, 2 2. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE ID. CIT(A) HAD ERRED IN REJECTING THE APPE LLANT'S APPLICATION U/R 46A, THROUGH WHICH THE APPELLANT SO UGHT ADMISSION OF DOCUMENTARY EVIDENCES TO EXPLAIN THE ISSUES RAISED BY THE ID. A.O. IN THE ASSESSMENT ORD ER (PARTICULARLY WHEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD NO OCCASION TO FURNIS H SUCH DOCUMENTARY EVIDENCES). 3. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE PROCEEDINGS INITIATED U/S 147 ARE LIABLE T O BE QUASHED BECAUSE THE FACTS NARRATED IN THE REASONS RECORDED ARE INCORRECT, IN AS MUCH AS (I) THE ASSES SEE HAD ALREADY FILED HIS IITR FOR A.Y. 2010-11 UNDER PAN:AHNPS9561Q ON 15.10.2010; AND (II) IN RESPONSE TO THE QUERY LETTER DT. 05.01.2017 ISSUED BY THE ID. A .O., VIDE LETTER DT. 03.03.2017 THE ASSESSEE HAD EXPLAIN ED THE FACTS RELATING TO PURCHASE OF - PROPERTY UNDER REFE RENCE WITH THE HELP OF SUPPORTING DOCUMENTS. 4. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE PROCEEDINGS INITIATED U/S 147 ARE LIABLE T O BE QUASHED BECAUSE THERE WAS NO TANGIBLE MATERIAL O N RECORD, ON THE BASIS OF WHICH A BELIEF OF ESCAPEMEN T OF INCOME COULD HAD BEEN FORMED BY THE ID. A.O. 5. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE PROCEEDINGS INITIATED U/S 147 ARE LIABLE T O BE QUASHED BECAUSE THE ID. A.O. HAD INITIATED PENAL TY PROCEEDINGS U/S 147 IN A MECHANICAL MANNER, WITHOUT APPLICATION OF HIS OWN MIND. 6. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE PROCEEDINGS INITIATED U/S 147 ARE LIABLE T O BE QUASHED BECAUSE THE SUPERIOR AUTHORITIES OF THE ID. A.O. HAD APPROVED THE VAGUE / NON SPECIFIC REASONS 3 RECORDED BY THE ID. A.O., IN A MECHANICAL MANNER, WITHOUT APPLICATION OF THEIR OWN MINDS. 7. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE ID. CIT(A) HAD ERRED IN NOT DECIDING THE GROUND OF APPEAL RELATING TO ADDITION OF RS. 39,19, 555/-, BY SIMPLY STATING 'I FIND NO EVIDENCE OR ARGUMENT T HAT CONTROVERTS OR SALES THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER IN ANY WAY. THUS, I HAVE NO CHOICE BUT TO CONFIRM THE ORDER OF THE AO'. 8. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE ADDITION OF RS. 39,19,555/- (WHICH WAS ARBITRAR ILY MADE BY THE ID. A.O.) IS LIABLE TO BE DELETED BECAU SE THE ENTIRE INVESTMENT WAS MADE OUT OF KNOWN / DISCLOSED SOURCES. 9. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE ASSESSMENT PROCEEDINGS AS WELL AS ASSESSMENT OR DER PASSED BY THE ID AO ARE LIABLE TO BE QUASHED BECAUS E NO NOTICE U/S 143(2) WAS ISSUED BY THE ID AO. 10. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW , THE CREDIT OF TAXES PAID BY THE ASSESSEE, IS LIABLE TO BE ALLOWED. NOTE: THE ASSESSEE CRAVES LEAVE TO AMEND/ MODIFY AFOREMENTIONED GROUNDS OF APPEAL AND/OR TO RAISE ADDITIONAL GROUND(S) OF APPEAL, AT ANY TIME PRIOR T O / DURING THE COURSE OF APPELLATE PROCEEDINGS. 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. 4 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE HAS STATED THAT A.O. HAD PASSED THE ASSESSMENT ORDER, WITHOUT INFORMING THE NEXT DATE OF HEARING TO THE ASSESSEE AND ALSO WITHO UT MAKING ANY COMMUNICATION WITH THE ASSESSEE DURING THE PERIOD O F FIVE MONTHS COMMENCING FROM 24.07.2017 (THE LAST EFFECTIVE DATE OF HEARING) TO 22.12.2017 (THE DATE ON WHICH THE ASSESSMENT ORDER WAS PASSED). HE FURTHER SUBMITTED THAT IT IS A CASE WHERE THE ID . CIT(A) HAD (I) NOT ADJUDICATED THE GROUND RELATING TO ASSUMPTION OF JU RISDICTION U/S 147 [COPY OF REASONS RECORDED ARE PLACED AT PB:06-07]; (II) REFUSED TO CONSIDER THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE VIDE APPLICATION U/R 46A, ON THE GROUND THAT THE ASSESSE E HAD NOT AVAILED THE OPPORTUNITY GRANTED BY THE ID. A.O. BY NOT APPE ARING BEFORE THE ID. A.O. ON 21.08.2017. HE FURTHER SUBMITTED THAT I N ORDER TO COMPLY WITH THE DIRECTIONS OF THIS HON'BLE BENCH, AS GIVEN ON 01.01.2019, THE ASSESSEE IS HEREBY FURNISHING COPIES OF THOSE D OCUMENTS WHICH WERE FURNISHED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS, ALONG WITH APPLICATION U/R 46A AND WHI CH ARE RELEVANT TO THE ISSUES INVOLVED (INCLUDING THE ISSUE RELATING T O ADDITION OF RS. 39,19,555/-) AND REQUESTED THAT THE SAME MAY BE ADM ITTED AND ISSUES IN DISPUTE MAY BE SET ASIDE TO THE AO FOR FR ESH ADJUDICATION, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW, BUT HAVE NOT RAISED ANY SERIOUS OBJECTION ON THE ADMISSION OF EVIDENCES AND THE APPLICATION U/R 46A FILED BEFORE THE LD. CIT(A). 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. I FIND CONSIDERABLE COGENCY IN THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE THAT A.O. HAD PASSED THE ASSESSMENT ORDER, WITHOUT INFORMING THE NEXT DATE OF HEARING TO THE ASSESSEE AND ALSO WITHOUT MAKING ANY COMMUNICATION WITH THE ASSESSEE DURING T HE PERIOD OF FIVE MONTHS COMMENCING FROM 24.07.2017 TO 22.12.20 17. I FURTHER FIND THAT LD. CIT(A) HAD NOT ADJUDICATED THE GROUND RELATING TO ASSUMPTION OF JURISDICTION U/S 147 AND ALSO REFUSE D TO CONSIDER THE 5 DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE VID E APPLICATION U/R 46A, ON THE GROUND THAT THE ASSESSEE HAD NOT AV AILED THE OPPORTUNITY GRANTED BY THE A.O. BY NOT APPEARING B EFORE THE A.O. ON 21.08.2017. I FURTHER NOTE THAT NOW THE ASSESSEE HAS FURNISHED THE COPIES OF THOSE DOCUMENTS WHICH WERE FURNISHED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS, ALONG W ITH APPLICATION U/R 46A AND WHICH ARE VERY MUCH RELEVANT AND ESSENTIAL IN ADJUDICATING THE ISSUES IN DISPUTE. HENCE, I ADMIT THE SAME AND SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTIONS TO DECIDE THE SAME, AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 03-01-2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED :03-01-2019 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. 6