Mr. Ravinder Dutta, New Delhi V. ACIT, New Delhi

ITA 5052/DEL/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7075 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 16-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 14-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SH
• Keywords: Gift; Opportunity of being heard; Principle of natural justice; Additional evidence; Onus to prove
• Section: 234B; 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A. NOS. 5052/DEL/2011 ASSESSMENT YEAR: 2007-08 SH. RAVINDER DUTTA VS. ACIT, CC-7, 21/73, OLD RAJINDER NAGAR, NEW DELHI NEW DELHI 60 (PAN: AAKPD3381R) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. ANKIT GUPTA, ADV. REVENUE BY : SH. PANKAJ VIDYARTHI, CIT(DR) DATE OF HEARING ON : 16/08/2016 ORDER PRONOUNCED ON :05/09/201 6 PER H.S. SIDHU, JM ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 1.9.2011 PASSED BY THE LD. CIT(A), NEW DELHI RELATING TO ASS ESSMENT YEAR 2007-08 ON THE FOLLOWING REVISED GROUNDS:- 1. THAT THE ASSESSMENT ORDER PASSED BY THE AO U/S. 143 (3) AND THE ADDITIONS MADE ARE ILLEGAL, BAD IN LAW, WITHOUT JURISDICTION AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 2. THAT THE ADDITIONS/ DISALLOWANCES MADE ARE ILLEGAL , UNJUST, HIGHLY EXCESSIVE AND ARE NOT BASED ON ANY MATERIAL ON RECORD BY THE ASSESSING OFFICER. THE TOTAL INCOME O F THE APPELLANT HAS BEEN WRONGLY AND ILLEGALLY COMPUTED B Y THE ASSESSING OFFICER AT RS.28,00,656/- AS AGAINST INCO ME/LOSS 2 DECLARED AT RS.1,06,150/-. THE CIT(A) ERRED IN UPHO LDING THE SAME. 3. THAT THE LD. CIT(A) ERRED IN UPHOLDING THE ADDIT ION MADE BY THE AO ON ACCOUNT OF AMOUNT RECEIVED FROM HIS BROTH ER AT RS. 26,94,506/- IN HIS BANK ACCOUNT TO MEET CERTAIN FAMILY EXPENSES TREATING AS UN-EXPLAINED EXPENSES U/S 69. 4. THAT THE LEARNED CIT(A) AND THE AO FAILED TO APP RECIATE THAT ASSESSEE HAS DISCHARGED HIS ONUS TO PROVE THE GIFT AS GENUINE BY PROVING IDENTITY, CREDITWORHTINESS, GENU INENESS AND OCCASIONS U/S 68 OF THE INCOME TAX ACT, 1961. T HE SAID ADDITION OF RS. 26,94,506/- IS ILLEGAL. UNJUST AND IS UNCALLED FOR AND IT IS LIABLE TO BE DELETED. ~ 5. THE ASSESSING OFFICER HAS ERRED IN NOT PROVIDING PROPER AND ADEQUATE OPPORTUNITY OF HEARING TO THE APPELLANT TO PLACE THE EVIDENCE/DETAILS ON RECORD TO SUBSTANTIATE ITS CLAIM DURING THE ASSESSMENT PROCEEDINGS. 6. THE ADDITIONS MADE AND THE OBSERVATIONS MADE AR E UNJUST, UNLAWFUL AND BASED ON MERE SURMISES AND CONJUNCTURE S. THE ADDITIONS MADE CANNOT BE JUSTIFIED BY ANY MATER IAL ON RECORD AND ALSO EXCESSIVE. 7. THE EXPLANATION GIVEN IN THE EVIDENCE PRODUCED, MATERIAL PLACED THAT HAS BEEN MADE AVAILABLE ON RECORD HAS N OT BEEN PROPERLY CONSIDERED AND JUDICIALLY INTERPRETED AND THE SAME DO NOT JUSTIFY THE ADDITIONS/ ALLOWANCES MADE. 8. THE INTEREST UNDER SECTION 234A & 234B HAS BEEN WRONGLY AND ILLEGALLY CHARGED AS THE APPELLANT COULD NOT HA VE FORESEEN THE ADDITIONS/ DISALLOWANCES MADE AND COU LD NOT HAVE INCLUDED THE SAME IN CURRENT INCOME FOR PAYMEN T OF 3 ADVANCE TAX. THE INTEREST CHARGED UNDER VARIOUS SEC TIONS IS ALSO WRONGLY WORKED OUT. 9. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER AND OR MODIFY THE GROUNDS OF APPEAL OF THE SAID APPEAL. ALL OF THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJ UDICE AND ARE MUTUALLY EXCLUSIVE TO EACH OTHER. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE HAS FILED AN APPLICATION UNDER RULE 29 OF THE ITAT RULES, 1963 IN WHICH HE HAS REQUESTED FOR ADMISSION OF ADDITIONAL EVIDENCES WHI CH IS VERY MUCH ESSENTIAL FOR THE DISPOSAL OF THE PRESENT APPEAL A ND IS ALSO VERY ESSENTIAL EVIDENCE ON THE ADDITION IN DISPUTE I.E. BANK STATEMENT OF RAJESH DUTTA VIDE PAPER BOOK DATED 16.1.2012 AT SE RIAL NO. 9 PAGE NO. 15 TO 18 AND BANK ACCOUNT OF SUBSEQUENT YEAR IN WHICH AMOUNT HAS BEEN REFUNDED TO BY SH. RAJEEV DUTTA. THE ASSE SSEE HAS ALSO FILED THE AFFIDAVIT SUPPORTING THE APPLICATION FOR ADMIS SION OF ADDITIONAL EVIDENCES. ASSESSEE HAS CONTENDED IN THE APPLICATI ON FOR ADMISSION OF ADDITIONAL EVIDENCE THAT THE REVENUE AUTHORITY HAS MADE THE ADDITION IN DISPUTE IN THE HANDS OF THE ASSESEE BY TREATING THE SAME AS UNDISCLOSED INVESTMENT U/S. 69 ONLY ON THE GROUND T HAT ASSESSEE HAS NOT ESTABLISHED THE CREDITWORTHINESS OF HIS BROTHE R SH. RAJESH DUTTA WHO IS AN NRI AND FROM WHOM THE AMOUNT HAS BEEN RE CEIVED FOR THE 4 EXPENDITURE OF HIS ILL FATHER. THE AMOUNT HAS BEEN PAID BY THE BROTHER OF THE ASSESSEE BY ACCOUNT PAYEE CHEQUE FOR THAT THE ASSESSEE HAS ATTACHED THE BANK STATEMENT AND BECAUSE THIS E VIDENCE WAS NOT IN THE POSSESSION OF THE ASSESSEE AT THE TIME OF A SSESSMENT PROCEEDINGS, HE REQUESTED ADDITIONAL EVIDENCE MAY B E ADMITTED AND ISSUE IN DISPUTE MAY BE REMITTED BACK TO THE FILE O F THE AO FOR DECIDING THE SAME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. LD. DR HAS NOT RAISED ANY SERIOUS OBJECTION ON THE ADMISSION OF ADDITIONAL EVIDENCE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. IN THE INTEREST OF JUSTICE AND THE CONTENTION RAISED BY T HE ASSESSEES COUNSEL THAT ADDITIONAL EVIDENCE FILED BY THE ASSESSEE I.E. BANK STATEMENT OF RAJESH DUTTA VIDE PAPER BOOK DATED 16.1.2012 AT SE RIAL NO. 9 PAGE NO. 15 TO 18 AND BANK ACCOUNT OF SUBSEQUENT YEAR IN WHICH AMOUNT HAS BEEN REFUNDED TO BY SH. RAJEEV DUTTA WHICH IS M ENTIONED AT PARA NO. 5 OF THE APPLICATION FILED U/R 29 OF THE ITAT R ULES, 1963 ARE VERY ESSENTIAL, HENCE, THE SAME ARE ADMITTED. WE ARE AL SO OF THE VIEW THAT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE REQ UIRS THOROUGH EXAMINATION AT THE LEVEL OF THE AO, THEREFORE, IN T HE INTEREST OF JUSTICE, WE ARE SETTING ASIDE THE ISSUES IN DISPUTE TO THE F ILE OF THE AO TO EXAMINE THE ADDITIONAL EVIDENCES FILED BY THE ASS ESSEE AND DECIDE THE 5 SAME AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/09/2016 . SD/- SD/- (O.P. KANT) [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 05/09/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES