Zameer Ahmed, New Delhi V. ITO, Ward-56(2), New Delhi

ITA 5095/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5680 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 24-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: PRATEEK KHANDELWAL
• Keywords: Principle of natural justice; Additional evidence
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER ITA NO.5095/DEL/2018 ASSESSMENT YEAR: 2012-13 ZAMEER AHMED S-3/B-18, DILSHAD COLONY, NEW DELHI -110095 PAN NO. ADMPA8566A VS INCOME TAX OFFICER WARD 56 (2) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. PRATEEK KHANDELWAL, CA RESPONDENT BY SHRI S. L. ANURAGI, SR. DR DATE OF HEARING: 05/08/2019 DATE OF PRONOUNCEMENT: 08/08/2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 12.09.2016 OF THE CIT(A)-19, NEW DELHI RELATING TO A. Y. 2010-11. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF SALE A ND PURCHASE OF PROPERTY AND DECLARED INCOME U/S. 44 AD OF THE A CT. HE FILED HIS RETURN OF INCOME ON 30.03.2013 DECLARING TOTAL INCOME OF RS.2,16,120/-. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCOME OF RS.12,70,480/- WHER EIN HE MADE ADDITION OF RS.10,54,360/- BY ESTIMATING THE I NCOME OF PAGE | 2 THE ASSESSEE @ 8% ON THE TURNOVER OF RS.1,71,87,620 /- AND AFTER DEDUCTING THE INCOME ALREADY DECLARED. 3. IN APPEAL THE LD. CIT(A) NOTED THAT THERE WERE T OTAL DEPOSIT OF RS.1,71,87,619/- CONTAINING 115 CREDIT ENTRIES O UT OF WHICH THE ASSESSEE WAS ABLE TO FURNISH EVIDENCES AND EXPL ANATIONS IN RESPECT OF 84 ENTRIES TOTALING TO RS.1,36,13,046/-. HOWEVER, DESPITE VARIOUS OPPORTUNITIES, THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE NATURE OF DEPOSITS AMOUNTING TO RS.35,7 4,573/-. HE ACCORDINGLY HELD THAT THE DEPOSITS TO THE TUNE OF R S.35,74,573/- REMAINED UNEXPLAINED AND ADDED THE SAME TO THE TOTA L INCOME OF THE ASSESSEE U/S. 69 OF THE ACT. HE ACCORDINGLY ENHANCED THE INCOME OF THE ASSESSEE TO THIS EXTENT. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT IN THE IMPUGNED ORDER, ASSESSMENT MADE IS A AMBIGUOUS AND HAS BEEN PASSED WITH PRE DETERMINED / BI ASED STATE OF MIND. 2. THAT THE IMPUGNED ORDER IS AGAINST THE PRINCIPALS OF NATURAL JUSTICE AS THE ORDER HAS BEEN PASSED IN BIAS ED MANNER WITHOUT CONSIDERING THE SUBMISSIONS AND STATUS OF TH E APPELLANT. THE IMPUGNED ORDER IS LIABLE TO BE QUASH ED BEING BIASED AND NON CONSIDERED ORDER. 3. THE FACTS AND EXPLANATIONS REGARDING ASSUMED UNEXPLAINED DEPOSITS OF INR 35,74,573/- HAS BEEN OVER LOOKED BY THE LD. CIT(A) AND THE ORDERS WERE PASSED ON PREDETERMINED NOTION. PAGE | 3 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT DUE TO PAUCITY OF TIME AND NON RECEIPT OF FULL INFORMATION FROM THE BANK THE ASSESSEE WAS UNABLE TO SUBSTANTIA TE EACH AND EVERY ENTRY IN THE BANK ACCOUNT. HE SUBMITTED THAT THE ASSESSEE NOW IS IN A POSITION TO SUBSTANTIATE EACH AND EVERY ENTRY CREDITED IN THE BANK ACCOUNT TO THE SATISFACT ION OF THE CIT(A) PROVIDED AN OPPORTUNITY IS GRANTED TO THE AS SESSEE. HE ACCORDINGLY SUBMITTED THAT IN THE INTEREST OF JUSTI CE THE ASSESSEE SHOULD GIVEN AN OPPORTUNITY TO SUBSTANTIATE HIS CAS E BEFORE THE LD. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED CERTAIN ADDITIONAL EVIDENCES WHICH WERE NOT IN HIS POSSESSI ON AT THE RELEVANT TIME AND WERE OBTAINED FROM THE BANK SUBSE QUENTLY. HE SUBMITTED THAT SINCE THESE ADDITIONAL EVIDENCES GO TO THE ROOT OF THE MATTER, THEREFORE, THESE ADDITIONAL EVI DENCES SHOULD BE ADMITTED AND THE APPEAL MAY BE DECIDED ACCORDING LY. 6. THE LD. DR ON THE OTHER HAND SUBMITTED THAT ADE QUATE OPPORTUNITY WAS GRANTED TO THE ASSESSEE BY LD. CIT( A) AND THE ASSESSEE FAILED TO SUBSTANTIATE HIS CASE, THEREFORE , THE ORDER OF THE CIT(A) SHOULD BE UPHELD. 7. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND PERUSED THE ORDERS OF THE AO AND CIT(A). I HAVE ALSO CONSIDERED THE ADDITIONAL EVIDENCES FILED BEFORE ME CONTAINING NARRATION OF VARIOUS ENTRIES WHICH WERE OBTAINED FR OM THE BANK SUBSEQUENT TO PASSING OF THE ORDER BY THE LD. CIT(A ). SINCE THE LD. CIT(A) ENHANCED THE INCOME OF THE ASSESSEE ON T HE GROUND THAT THE ASSESSEE COULD NOT EXPLAIN VARIOUS ENTRIES TO THE TUNE OF RS.35,74,573/- AND SINCE THE ASSESSEE HAS NOW FI LED CERTAIN PAGE | 4 ADDITIONAL EVIDENCES IN THE SHAPE OF BANK CERTIFICA TE EXPLAINING THE NATURE OF RECEIPT ON LETTER HEAD OF THE BANK, T HEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE I DEEM IT PROPER TO RESTORE THI S ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GIVE AN OPPORTUNI TY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE AND DECIDE THE IS SUE AS PER FACT AND LAW. THE LD. CIT(A) SHALL GO THROUGH THE CERTIFICATE GIVEN BY THE BANK GIVING NATURE OF CREDIT IN THE BA NK STATEMENT. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 08.08.2019. SD/- (R.K PANDA) ACCOUNTANT MEMBER *NEHA* DATE:- 08.08.2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI PAGE | 5 DATE OF DICTATION 05.08.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.08.2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 05.08.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 05.08.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 05.08.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 08.08.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER