DCIT, Noida V. Sh. Pawan Bhadana, Noida

ITA 5053/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9008 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 23-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AGAINST PASSED
• Keywords: Additional evidence; Set aside
• Section: 148

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 5053/DEL/2016 ASSTT. YEAR: 2007-08 O R D E R PER SUDHANSHU SRIVASTAVA, JM: THIS APPEAL IS PREFERRED BY THE DEPARTMENT AGAINST THE ORDER PASSED BY THE LD. CIT (APPEALS) -1 NOIDA FOR ASSESSMENT YEAR 2007-08 WHEREIN VIDE ORDER DATED 30.6.2016 THE LD. CIT (APPEALS) HAS DELETED THE ADDITION OF RS. 2,51,90,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNACCOUNTED CASH DEPOSITS IN THE BANK ACCOUNTS BY THE ASSESSEEE. DY. CO MMISSIONER OF INCOME TAX, CIR-2, NOIDA VS. PAWAN BHADANA, 15A/72, ATS VILLAGE, SECTOR 93 NOIDA PAN AGQPB197ON (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI SUR ENDER PAL , SR. DR ASSESSEE BY : NONE DATE OF HEARING 18 /09 /201 9 DATE OF PRONOUNCEMENT 30 / 09 /2019 2 2.0 BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED IN COMPLIANCE TO NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 AT AN INCOME OF RS. 17,04,904/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT THE ASSESSEE HAD DEPOSITED CASH IN BANK ACCOUNTS TO THE TUNE OF RS. 2,51,90,000/- THE ASSESSEE WAS ISSUED A SHOW CAUSE NOTICE TO EXPLAIN THE SOURCE OF THESE CASH DEPOSITS WHICH THE ASSESSEE COULD NOT EXPLAIN. CONSEQUENTLY, THE AO MADE THE ADDITION OF RS. 2,51,90,000/- ON THIS ACCOUNT AND ALSO MADE A FURTHER ADDITION OF RS. 3 LACS TOWARDS HOUSE HOLD EXPENSES. THE ASSESSEES APPEAL BEFORE THE LD. CIT (APPEALS) WAS ALLOWED AND NOW THE DEPARTMENT IS IN APPEAL BEFORE THE TRIBUNAL CHALLENGING THE DELETIONS. 3.0 NONE WAS PRESENT ON BEHALF OF THE ASSESSEE/ RESPONDENT WHEN THE APPEAL WAS CALLED OUT FOR HEARING. A PERUSAL OF THE ORDER SHEET ENTRIES SHOWS THAT THIS APPEAL WAS INITIALLY FIXED FOR HEARING ON 22.11.2016 AND THEREAFTER THE APPEAL WAS FIXED FOR HEARING ON FOUR MORE OCCASIONS BUT THE ASSESSEE WAS NOT REPRESENTED ON ANY OF THE DATES. ON THE LAST DATE OF HEARING I.E. 15.7.2019 THE REGISTRY WAS DIRECTED TO ISSUE NOTICE THROUGH REGISTERED POST WHICH HAS BEEN SO DONE BY THE REGISTRY AND THE NOTICE HAS NOT BEEN RETURNED UN-SERVED BY THE POSTAL 3 DEPARTMENT. ACCORDINGLY, WE HAVE NO OTHER OPTION BUT TO PROCEED EX PARTE QUA THE ASSESSEE/RESPONDENT. 4.0 THE LD. SR. DR SUBMITTED THAT THE LD. CIT (APPEALS) HAD DELETED THE ADDITIONS WITHOUT ANY BASIS AND HAD ADMITTED FRESH EVIDENCES WITHOUT GIVING THE AO AN OPPORTUNITY TO RESPOND TO SUCH EVIDENCES. IT WAS PRAYED THAT THE APPELLATE ORDER SHOULD BE REVERSED. 5.0 WE HAVE HEARD THE LD. SR. DR AND HAVE ALSO PERUSED THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND OBSERVE THAT THE CONTENTION OF THE LD. SR. DR IS CORRECT IN AS MUCH AS LD. CIT (APPEALS) HAS ADMITTED ADDITIONAL EVIDENCE AND APPARENTLY HE HAS NOT CALLED FOR THE COMMENTS OF THE AO BEFORE ADMITTING SUCH ADDITIONAL EVIDENCE. THEREFORE, THERE IS CLEAR VIOLATION OF THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962. ACCORDINGLY WE DEEM IT A MATTER FIT TO BE RE-EXAMINED ON MERITS BY THE AO. WE SET ASIDE THE ORDER OF THE LD. CIT (APPEALS) AND RESTORE THE ASSESSMENT TO THE FILE OF THE AO WITH A DIRECTION TO RE- EXAMINE BOTH THE ISSUES BEFORE US AND DECIDE THE ISSUES DE NOVO AFTER GIVING OUT OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE. 4 6.0 IN THE FINAL RESULT THE APPEAL OF THE DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2019. SD/- SD/- (N.K.BILLAIYA) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30/09/2019 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI