Darbari Lal, New Delhi V. ITO, Karnal

ITA 5035/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69228 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 25-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K L ANEJA
• Keywords: Opportunity of being heard; Additional evidence; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO.-5035/DEL/2012 (ASSESSMENT YEAR-2009-10) DARBARI LAL, S/O-K.L.ANEJA, ADVOCATE, VS ITO, FLAT NO-92C/BW, BLOCK-B, PKT-W, WARD-I, AYAKAR B HAWAN, SHALIMAR BAGH, SECTOR-12, URBAN ESTATE, NEW DELHI-110088. KARNAL(HARYANA) P AN-ACXPL9171C (APPELLANT) (RESPONDENT) APPELLANT BY: SH. K.L.ANEJA, ADV. RESPONDENT BY: SH. VIVEK KUMAR, SR. DR ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 15.06.2012 OF CIT(A), KARNAL PERTAINING TO 2009-10 ASSESSMENT YEA R WHEREIN VARIOUS GROUNDS HAVE BEEN RAISED BY THE ASSESSEE AGITATING AGAINST THE ADDITIONS MADE BY THE AO WHICH HAVE BEEN CONFIRMED IN APPEAL. 2. ADDRESSING THE FIRST GROUND IN APPEAL, LD. AR S UBMITTED THAT EVIDENCE CRUCIAL FOR DETERMINING THE ISSUE WAS FILED BEFORE THE CIT(A) WHO HAS NOT ADMITTED AND ADDITION HAS BEEN CONFIRMED WITHOUT CONSIDERING THE RELEVANT FACTS AND WITHOUT CONSIDERING THE ARGUMENTS OF THE ASSESSEE. 2.1. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSE E ORIGINALLY DECLARED AN INCOME OF RS.1,45,740/-FROM BUSINESS AND RS.1,20,40 0/- AS AGRICULTURAL INCOME BY WAY OF FILING ITS RETURN ON 12.06.2009. SUBSEQUENTL Y IT WAS REVISED DECLARING AN INCOME OF RS.1,39,974/- FROM BUSINESS AND AGRICULTU RAL INCOME OF RS.1,20,000/- .THE NATURE OF ASSESSEES WORK WAS SHOWN AS CONTRA CT WORK EARTH-MOVING I.T.A .NO.-5035/DEL/2012 2 BUSINESS. THE CASE WAS SELECTED FOR SCRUTINY BY WA Y OF CASS. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF DEPOSITS IN ICICI BANK AND HOW THE CONTRACT PAYMENTS SHOWN AS PER TDS CERTIFICATES HAD BEEN ACC OUNTED FOR IN THE ACCOUNTS. THE ASSESSEE WAS ALSO REQUIRED TO FILE EVIDENCE OF AGRICULTURAL INCOME. THE ASSESSEE WAS REPRESENTED THROUGH SH. BATHLA, ADVOCA TE, WHO APPEARED HOWEVER ONLY SOUGHT ADJOURNMENT AND DID NOT FILE ANYTHING I N RESPONSE TO THE INFORMATION BEING SOUGHT BY THE AO. ACCORDINGLY AN ADDITION OF RS.18,08,885/- BASED ON THE BANK ACCOUNT NO.-017301517291 WITH ICICI BANK, KARN AL WAS MADE BY THE AO U/S 69. THE AO FURTHER MADE AN ADDITION OF RS.7,22 ,581/- AS THE ASSESSEE COULD EXPLAIN ONLY CONTRACT RECEIPTS OF RS.8,46,676/- AS PER FORM NO.-16A FILED WITH THE REVISED RETURN AND FOR THIS AMOUNT, AS NO EXPLANATI ON COULD BE GIVEN. AGRICULTURAL INCOME SHOWN BY THE ASSESSEE WAS ALSO ASSESSED TO T AX FOR WANT OF DOCUMENTARY EVIDENCE, ACCORDINGLY RESULTING IN A FURTHER ADDITI ON OF RS.1,20,000/- AND CONSEQUENTLY THE RETURNED INCOME AS PER THE REVISED RETURN OF RS.1,39,374/- WAS ASSESSED AT RS.27,91,440/-. 3. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE WAS REPRESENTED BY SH. ANISH ARORA, ADVOCATE WHO FILED AN APPLICATI ON FOR ADMISSION OF FRESH EVIDENCE WHICH WAS NOT ADMITTED BY THE CIT(A)WHO WA S OF THE VIEW THAT SUFFICIENT OPPORTUNITY HAD BEEN GIVEN TO THE ASSESSEE IN THE C OURSE OF THE ASSESSMENT PROCEEDINGS BY THE AO RESULTING IN CONFIRMATION OF THE ASSESSMENT ORDER. 4. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEF ORE THE TRIBUNAL. BOTH THE PARTIES WERE HEARD ON GROUND NO-1 RAISED BY THE ASS ESSEE, THE SAME IS REPRODUCED HERE UNDER :- 1.1. THAT THE LEARNED CIT(APPEALS) HAS ERRED IN LA W & ON FACTS IN DECLINGING TO ADMIT ADDITIONAL EVIDENCES SUBMITTE D ALONG WITH AN APPLICATION U/R 46A EXPLAINING THAT RELEVANT DOCUME NTS , VITAL TO THE ISSUES RAISED IN APPEAL WERE DELIVERED TO SH. BHUSH AN BATHLA, ADVOCATE APPEARING ON BEHALF OF THE ILLITERATE APPELLANT WHO FAILED TO FILE THE SAME BEFORE THE AO AND ON BEING AWARE, NEW COUNSEL SH. A NISH ARORA, ADV WAS I.T.A .NO.-5035/DEL/2012 3 ENGAGED WHO TOO COULD NOT FILE THE SAID DOCUMENTS F OR THE REASONS BEST KNOWN TO HIM, RESULTED IN APPELLANTS FAILURE & WAS PREVENTED IN FILLING THE SAME BEFORE THE AO. SUCH EVIDENCES FILED BEFORE LD . CIT(A) HAVE BEEN WRONGLY DECLINED TO BE NOT ADMITTED & RESULTED IN N ON-CONSIDERATION ON MERITS. 1.2. THAT THE LD. CIT(A) OUGHT TO HAVE ENTERTAINED THE ADDL. EVIDENCES WHICH THE UNEDUCATED APPELLANT WAS PREVENTED IN FIL ING THE SAME BEFORE THE A.O. IN ASSTT. PROCEEDINGS IN AS MUCH AS THE AP PELLANT HAD NO CONTROL ON THE ADVOCATES & HE SHOULD NOT SUFFER THE CONSEQU ENCES OF COUNSELS NEGLIGENCE, WHICH RESULTED IN GREAT HARDSHIP, UNJUS T TO THE APPELLANT. THE PRAYER OF THE APPELLANT IS THAT THE LOWER AUTHORITI ES BE DIRECTED TO ADMIT THE SAME IN THE ENDS OF JUSTICE & FAIR PLAY. 4.1. WHEREAS THE LD. AR HAS ARGUED FOR ADMISSION OF RELEVANT EVIDENCE AND A DECISION THEREIN ON MERITS LD. SR DR ON GOING THROU GH THE RECORD HAD NO OBJECTION TO THE ADMISSION OF FRESH EVIDENCE HOWEVER IT WAS H IS SUBMISSION THAT THE SAME SHOULD BE CONSIDERED BY THE AO AS SUCH SHOULD BE RE MANDED BACK. 5. ON A CONSIDERATION OF THE PECULIAR FACTS AND CIR CUMSTANCES OF THE CASE WHERE THE ASSESSEE IS STATED TO BE ILLITERATE AS PER THE GROUND RAISED AND ENGAGED IN CONTRACT EARTH MOVING BUSINESS, WE FIND IN THE LIGH T OF THE ARGUMENTS ADVANCED THAT JUSTICE WILL NOT BE SERVED IF A CONCLUSION ON MERIT S IS ARRIVED WITHOUT TAKING INTO CONSIDERATION NECESSARY AND RELEVANT EVIDENCES TO D ECIDE THE ISSUES. NO DOUBT THE ASSESSEE WAS AFFORDED SUFFICIENT OPPORTUNITY BEFORE THE AO HOWEVER AS PER THE GROUND RAISED IT IS SEEN THAT IT IS CLAIMED THAT RE LEVANT EVIDENCES WERE GIVEN TO THE COUNSEL WHO DID NOT FILE THE SAME. CONSIDERING THE ARGUMENT, WE DONOT THINK IT APPROPRIATE THAT THE ASSESSEE SHOULD BE PENALIZED F OR THE CARELESSNESS OF HIS COUNSEL. BEFORE THE CIT(A), IT IS SEEN THAT SH.ANI SH ARORA, ADVOCATE DID FILE A PETITION FOR ADMISSION OF ADDITIONAL EVIDENCES HOW EVER IT WAS NOT ALLOWED ON THE GROUND THAT SUFFICIENT OPPORTUNITY WAS GIVEN BY THE AO. ACCORDINGLY IN THE LIGHT OF THE ARGUMENTS BY THE PARTIES AND CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT APPROPRIATE T O SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE BACK TO THE AO TO DECIDE THE ISSUE DE NOVO AND PASS A I.T.A .NO.-5035/DEL/2012 4 SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. WE DIRECT THAT THE AO SHALL ENTERTAIN FRESH EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE IN SUPPORT OF ITS CLAIM. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 23 RD OF AUGUST 2013. SD/- SD/- (T.S.KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23/08/2013 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI