Toni Gupta, Meerut V. ITO, Ward- 2(4), Meerut

ITA 50/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4751 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Opportunity of being heard
• Section: 131; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER ITA NO. 50/DEL/2018 ASSESSMENT YEAR: 2009-10 TONI GUPTA, 187, KISHAN PURA, BAGHPAT ROAD, MEERUT (PAN: AIGPG9447G) VS. ITO, WARD 2(4), MEERUT (APPELLANT) (RESPONDENT) ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 05/07.12.2017 PASSED BY THE LD. CIT(A), MEERUT ON THE FOLLOWING GROUNDS:- 1. THAT THE AO HAS NOT CONSIDERED THE WRITTEN REPLY DA TED 6.10.2016 AND 3.11.2016 AND IGNORED THE STATEMENT R ECORDED ON OATH OF SH. ARVIND KUMAR GUPTA. HENCE, THE ORDER P ASSED BY AO AND CIT(A) IS ARBITRARY, UNJUST AND AGAINST THE FAC TS AND LAW, AS THE AO HAS NOT FOLLOWED THE DIRECTION GIVEN BY ITAT . 2. THAT THE AO HAS NOT JUSTIFIED FOR MAKING ADDITION O F RS. 28,58,500/- ADVANCE RECEIVED ON ACCOUNT OF SALE OF HOUSE PROPERTY, THE NECESSARY EVIDENCES WERE ALREADY FIL ED. REGARDING, PRODUCTION OF SH. MOHIT SINGH YADAV, IT IS THE ASSESSEE BY SH. V.K. GOEL, ADVOCATE DEPARTMENT BY SHRI PRADEEP KUMAR MEEL, SR. DR. 2 KNOWLEDGE OF AO THAT HE WAS IN JAIL. THEREFORE, QUE STION OF SERVICE ON NOTICE U/S. 131 DOES NOT ARISE, WHEN THE ASSESSEE PROVIDED AGREEMENT, WHICH IS CONFIRMED BY HIS BROTH ER SH. ARVIND KUMAR GUPTA, THE AO HAS NOT JUSTIFIED FOR MA KING ADDITION AND CIT(A) CONFIRMED THE SAME WITHOUT PROPERTY CONS IDERATION THE EVIDENCE. 3. THAT THE ASSESSEE HAS RIGHT TO ADD, MODIFY OR DELET E ANY GROUND DURING THE APPEAL PROCEEDINGS. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE H AS FILED HIS INCOME TAX RETURN ON 31-03-2010, DECLARING INCOME OF RS. 1 ,11,250/- FROM RING MAKING JOB WORK. THE CASE WAS PROCESSED ON AST AT R ETURNED INCOME. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AN D NOTICE U/S 143(2) OF THE I.T. ACT, 1961 DATED 19-08-2010 WAS ISSUED. AS NO COMPLIANCE TO THE ABOVE NOTICE HAS BEEN MADE, THEREFORE, AGAIN A SHOW CAUSE NOTICE WAS ISSUED ON 08-11-2011 FIXING THE DATE OF HEARING ON 15-11-2011. THE AR OF THE ASSESSEE ATTENDED THE PROCEEDINGS AND FILED THE REPLY, BUT NO COPY OF STATEMENT AND SOURCE OF CASH AT BANK HAD BEEN FI LED. FURTHER THE ASSESSEE AND HIS COUNSEL ATTENDED AND STATEMENT OF THE ASSESSEE WAS RECORDED. AO OBSERVED THAT FROM THE PERUSAL OF SB A /C AT ICICI, BANK DELHI ROAD, MEERUT, IT WAS NOTICED THAT ASSESSEE HA D MADE CASH DEPOSIT OF RS. 28,53,500/- IN HIS BANK ACCOUNT THE DETAILS ARE NOT EXPLAINED. HENCE, HE ADDED IN THE INCOME OF THE ASSESSEE. THE ASSESSEE FILED APPEAL BEFORE CIT(A) AND CIT(A) DISMISSED THE APPEAL. ON A PPEAL BEFORE ITAT, ON THE SUBMISSION OF THE ASSESSEE I.T.A.T. PARTLY A LLOWED THE APPEAL OF 3 THE ASSESSEE AND SET ASIDE THE CASE TO THE A.O. TO DECIDE THE ISSUE AFRESH AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD. BEFORE THE AO, THE ASSESSEE FILED ITS WRITTEN SUBMISSION, BUT AO H AS ISSUED NOTICE U/S. 148 OF THE ACT ON 6.10.2010 RELATING TO 1/7 TH SHARE OF 0.670 HECTOR AGRICULTURE LAND ALONGWITH SIX PARTNERS. THEREAFTE R, THE AO HAS COMPLETED THE ASSESSMENT U/S. 254/148/143(3) OF THE ACT ON 21.11.2016 AT RS. 39,61,907/-. THE ASSESSEE HAS PREFERRED APP EAL AGAINST THIS ORDER BEFORE THE LD. CIT(A), MEERUT WHO VIDE HIS IMPUGNE D ORDER DATED 05/07.12.2017 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AO H AS NOT CONSIDERED THE WRITTEN REPLY DATED 06.10.2016 AND 03.11.2016 A ND IGNORED THE STATEMENT RECORDED ON OATH OF SH. ARVIND KUMAR GUPT A. HENCE, THE ORDER PASSED BY AO AND CIT(A) IS ARBITRARY, UNJUST AND AG AINST THE FACTS AND LAW, AS THE AO HAS NOT FOLLOWED THE DIRECTION GIVEN BY ITAT. HE FURTHER SUBMITTED THAT THE AO HAS NOT JUSTIFIED FOR MAKING ADDITION OF RS. 28,58,500/- ADVANCE RECEIVED ON ACCOUNT OF SALE OF HOUSE PROPERTY, THE NECESSARY EVIDENCES WERE ALREADY FILED. REGARDING, PRODUCTION OF SH. MOHIT SINGH YADAV, IT IS THE KNOWLEDGE OF AO THAT H E WAS IN JAIL. THEREFORE, QUESTION OF SERVICE ON NOTICE U/S. 131 D OES NOT ARISE, WHEN THE ASSESSEE PROVIDED AGREEMENT, WHICH IS CONFIRMED BY HIS BROTHER SH. ARVIND KUMAR GUPTA, THE AO HAS NOT JUSTIFIED FOR MA KING ADDITION AND CIT(A) CONFIRMED THE SAME WITHOUT PROPERTY CONSIDER ATION THE EVIDENCE. IN VIEW OF ABOVE, HE REQUESTED THAT THE APPEAL OF T HE ASSESSEE MAY BE ALLOWED. 4 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED HE HAS PASSED A WELL REASONED ORDER, WHI CH DOES NOT NEED ANY INTERFERENCE ON OUR PART. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS ESPECIALLY THE IMPUGNED ORDER. I FIND THAT AFTER EXAMINING TH E ENTIRE FACTS IT IS EVIDENT THAT THE ASSESSEE FAILED TO EXPLAIN / FILE DOCUMENTARY EVIDENCES:- I) THE HOUSE WHICH IS SHOWN TO BE SOLD WAS ACTUALLY IN THE NAME OF THE ASSESSEE. II) ONCE IT IS ESTABLISHED THAT HOUSE WAS IN THE NA ME OF ASSESSEE THEN HOW MR. ARVIND GUPTA COULD HAVE ENTERED AN AGREEMENT WITH MR. MOHIT YADAV TO SELL THE SAME HOUSE AND HOW THE AMOUNT CAN BE TREATED AS BELONGING TO ARVIND GUPTA RATHER THAN TO THE ASSESSEE. III) NO SUCH AGREEMENT HAS ALSO NOT PRODUCED FOR EXAMINATION. IV) MR. MOHIT YADAV HAS ALSO NOT PRODUCED FOR EXAMINATION. V) MR. ARVIND GUPTA IS CLAIMED TO BE INDULGING IN T HE BUSINESS OF PROPERTY SALE / PURCHASE AND HE IS USING BANK ACCOUNT OF ASSESSEE, THIS CANNOT BE ACCEPTED AS A PLAUSIBLE EXPLANATION. 5.1 THEREFORE, LD. CIT(A) HAS RIGHTLY HELD THAT ASS ESSEE HAS CREATED A STORY TO MAKE HIS DEFENCE, WHICH IS AN AFTERTHOUGHT STORY AND IS NOT ACCEPTABLE. I FURTHER NOTE THAT THE ASSESSEE HAS FAILED TO GIVE PLAUSIBLE EXPLANATION REGARDING CASH DEPOSIT OF RS. 28,58,500 /- IN THE BANK ACCOUNT 5 OF ASSESSEE AND, HENCE, THERE IS NO INFIRMITY IN TH E ORDER OF THE AUTHORITIES BELOW ON THE ISSUE IN DISPUTE, THEREFORE, THE SAME DOES NOT REQUIRE ANY INTERFERENCE ON MY PART. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) IS UPHELD AND THE GROUND RAISED BY THE ASSESSEE STANDS REJECT ED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED ON 29-10-2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE:29/10/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES