Mr. Dinesh Pal Singh, Delhi V. ITO, Noida

ITA 4976/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7141 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 09-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 19-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Keywords: Salary income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-1, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.4976/DEL/2016 ASSESSMENT YEAR : 2011-12 MR. DINESH PAL SINGH, 1404, GYAN SHAKTI APPTT., SECTOR-6, DWARKA, DELHI 110 075. VS. ITO, WARD 3(2), NOIDA. PAN : ARFPS 7606 G (APPELLANT) (RESPONDENT) APPELLANT BY SHRI UMMED KUNTAL, CA RESPONDENT BY SHRI F.R. MEENA, SR.DR DATE OF HEARING 09-11-2016 DATE OF PRONOUNCEMENT 06-01-2017 O R D E R PER DIVA SINGH, J.M. : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 20.06.2016 OF THE CIT(A)-I, NOIDA PERTA INING TO 2011-12 ASSESSMENT YEAR. 2. THE LD. AR INVITING ATTENTION TO THE IMPUGNED OR DER AND THE ADDITION MADE IN THE ASSESSMENT ORDER WHICH WERE UNDER CHALLENGE BEFORE THE CIT(A) SUBMITTED THAT THE ISSUES FOUND DISCUSSED BY THE LD. CIT(A) DO NOT PERTAIN TO THE ASSESSEE AND EVIDENTLY FACTS OF SOME OTHER CASE HAVE BEEN MIXED UP WHILE PASSING THE ORD ER. INVITING ATTENTION AT PAGE 1 OF THE ASSESSMENT ORDER IT WAS SUBMITTED THAT THE ASSESSEE CHALLENGED THE THREE ADDITIONS MADE BY THE ASSESSING OFFICER IN THE APPEAL FILED BEFORE TH E CIT(A). IN THE AFORESAID ASSESSMENT ORDER, THE RETURNED INCOME OF THE ASSESSEE AS PER R ECORD WAS RS.8,11,190/- AND THE ASSESSMENT WAS CONCLUDED AT AN INCOME OF RS.20,31,9 40/-. THE RELEVANT FINDINGS OF THE ASSESSING OFFICER CHALLENGED BEFORE THE CIT(A) REFE RRED TO ARE :- 2. IN THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE DE CLARED SALARY INCOME OF RS.8,11,190/-. AFTER DISCUSSION AND VERI FICATION OF FACTS AVAILABLE ON RECORDS, THE INCOME OF ASSESSEE IS COMPUTED AS U NDER :- INCOME AS ORIGINALLY RETURNED : RS. 8,11,190/ - ADD :- AS PER BANK STATEMENT CASH DEPOSIT WITH SAVING A/ C : RS.10,45,000/- SAVING BANK INTEREST : RS. 10,234/- DIFFERENCE IN 26 AS & ROI : RS. 1,65,512/- TOTAL INCOME : RS.20,31,936/- OR : RS.20,31,940/- 3. READING THE SAID PARA OF THE ASSESSMENT ORDER AL ONG WITH THE ISSUES CONSIDERED IN THE IMPUGNED ORDER IT WAS SUBMITTED THAT IT WOULD SHOWS THAT REFERENCE HAS BEEN MADE TO FACTS WHICH ARE NOT APPLICABLE TO THE ASSESSEES CASE. T HE FINDINGS ARRIVED AT IN THE IMPUGNED ORDER WHICH DO NOT PERTAIN TO THE ASSESSEE AT ALL A RE REPRODUCED HEREUNDER :- 2 ITA NO.4976/DEL/2016 6. THE CONTENTION OF THE APPELLANT IS NOT SUSTAINA BLE IN THE EYES OF THE LAW AS THE SAME IS INADMISSIBLE BOTH ON FACTS AS WE LL AS ON THE GROUNDS OF LAW. THE COST OF IMPROVEMENT OF AN IMMOVABLE PROPE RTY IS NOT DEFINED IN THE LAW. HOWEVER, IT HAS TO BE CONSTRUED AS IMPROV EMENT IN THE TITLE OF THE OWNER OF THE PROPERTY. IN THE INSTANT CASE NO EXPEN DITURE IS INCURRED TO IMPROVE THE TITLE OF THE APPELLANT. THE REPAIR AND RENOVATION OF AN IMMOVABLE PROPERTY IS IN THE COURSE OF DAY TO DAY U SE OF THE PROPERTY AND WILL NOT HAVE ANY BEARING ON THE TITLE OF THE OWNER UNLESS IT RESULTS IN IMPROVEMENT OF THE TITLE ITSELF. IT IS NOT THE CASE OF THE APPELLANT THAT BECAUSE OF THE EXPENDITURE CLAIMED THE TITLE OF THE APPELLANT IMPROVED. ON FACTS ALSO THE APPELLANT HAS NO CASE. THE PROPERTY IN QUESTION IS A FLAT CONSTRUCTED BY THE DDA AND THEREFORE, NO STRUCTURAL CHANGES COULD HAVE BEEN MADE BY THE APPELLANT. IT HITS AGAINST THE COM MON SENSE AND THE NORMAL PRUDENCE THAT A PROPERTY WHICH IS ACQUIRED T HROUGH A GPA FOR RS. 50,000/- WILL REQUIRE REPAIR AND RENOVATION OF RS. 5,25,000/-. IN ANY CASE, THE APPELLANT HAS FAILED TO PROVE THE GENUINENESS O F ITS CLAIMS OF INCURRING THE SAID EXPENDITURE BEFORE THE LD. A.O. THE CLAIMS OF PAYMENT MADE TO DDA IS ALSO NOT CORRECT AS THE MONEY RECEIPTS PRODU CED BY THE APPELLANT ARE IN THE NAME OF SOME OTHER PERSON. IT IS STATED BY THE APPELLANT THAT THE SAID PERSON WAS THE ORIGINAL ALLOTTEE OF THE PROPER TY AND BY VIRTUE OF GPA IN HIS FAVOUR HE WAS DEPOSITING MONEY WITH THE DDA ON HER BEHALF FROM HIS OWN ACCOUNTS. BE THAT AS IT MAY THE FACT REMAINS TH AT THE PAYMENTS TO DDA WERE MADE ON BEHALF OF THE ALLOTTEE AS A GPA HOLDER AND NOT ON BEHALF OF THE APPELLANT. THEREFORE, THE APPELLANT CANNOT CLA IM SUCH PAYMENT AS COST OF THE PROPERTY AS ITS RIGHT TO RECOVER THE SAID AM OUNT WILL LIE AGAINST THE PERSON ON WHOSE BEHALF THE PAYMENT WAS MADE AND NOT AGAINST THE PROPERTY. 4. ACCORDINGLY, IT WAS HIS LIMITED PRAYER THAT THE IMPUGNED ORDER MAY BE SET-ASIDE AND THE CIT(A) MAY BE DIRECTED TO ADJUDICATE UPON THE ISSUE S AGITATED IN ASSESSEES APPEAL. 5. LD. SR.DR ON GOING THROUGH THE IMPUGNED ORDER AN D THE GROUNDS RAISED BEFORE THE CIT(A) ALONGWITH THE ASSESSMENT ORDER AGREED THAT I T APPEARS THAT FACTS OF SOME OTHER APPEAL HAVE GOT MIXED UP AND ACCORDINGLY HAD NO OBJ ECTION IF THE ISSUE IS RESTORED BACK TO THE CIT(A). 6. IN THE LIGHT OF SUBMISSIONS OF THE PARTIES BEFOR E THE BENCH AND ON CONSIDERING THE MATERIAL ON RECORD I AM OF THE VIEW THAT THE IMPUGN ED ORDER CANNOT BE UPHELD. THE RECORD PATENTLY DEMONSTRATES THAT THE FACTS OF SOME OTHER CASE HAVE BEEN MIXED UP WITH THE ASSESSEES APPEAL. THIS CONCLUSION IS FURTHER FORT IFIED BY THE FACT THAT THE ASSESSMENT ORDER PASSED U/S 143(3) IS DATED 25.03.2014 AND THE LD.CIT(A) IN THE IMPUGNED ORDER IN PARA 1 RECORDS THAT THE ASSESSMENT ORDER IS DATED ON 25.03.2015 . IN VIEW OF THESE PATENT AND OBVIOUS MISTAKES EVIDENT ON RECORD THE IMPUGNED ORD ER IS SET-ASIDE AND THE ISSUES ARE RESTORED BACK TO THE FILE OF CIT(A) WITH A DIRECTIO N TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GRANTING A REASONABLE OPPORTUNITY OF BEAR ING HEARD THE ASSESSEE. 3 ITA NO.4976/DEL/2016 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06 TH JANUARY, 2017. SD/- SD/- SD/- (A. N. MISHRA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SUJEET/AMIT KUMAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. 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