Sh. Deepak Kumar, Baghpat V. Addl.CIT, Meerut

ITA 5164/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96891 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 06-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 18-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHIRANJAN SENAPATI
• Keywords: Opportunity of being heard; Revised return
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC - 2 : NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 5164 /DEL/201 4 A.Y. : 200 9 - 10 DEEPAK KUMAR, VS. A DDL. CIT, RANGE - 2 S /O OM PRAKASH, MEERUT VILLAGE KIRTHAL, DISTT. BAGPAT (PAN : ADEPK7865F) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SH. SUDHIRANJAN SENAPATI, SR. DR DATE OF HEARING : 6 - 8 - 2015 DATE OF ORDER : 6 - 8 - 2015 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMI SSIONER OF INCOME TAX (APPEALS), M EERUT DATED 19 . 8 .201 4 PERTAINING TO ASSESSMENT YEAR 200 9 - 10 . 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED, HENCE, WE ARE NOT REPEATED THE SAME FOR THE SAKE OF CONVENIENCE. 3. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, I AM OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE 2 SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, I AM DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 4 . IN THE GROUNDS OF APPEAL, ASSESSEE HAS CONTENDED THA T ASSESSEE IS ENGAGED IN PLYING OF BUSES ON CONTRACT BASIS WITH U.P. STATE ROAD TRANSPORT CORPORATION AND FILED HIS RETURN OF INCOME ON 4.2.2010 DECLARING NET INCOME OF RS. 2.20 LACS. LD. AO PICKED UP THE CASE OF THE ASSESSEE BY ISSUING NOTICE U/S. 148 OF THE I. T . ACT , 1961 ON 25.4.2011. IN COMPLIANCE THEREOF, ASSESSEE FILED THE REVISED RETURN SHOWING THE INCOME OF RS. 2,60,950/ - . ACCORDING TO ASSESSEE , HE IS MAINTAINING 3 SEPARATE REGISTER S, ONE FOR EACH BUS. IN THESE REGISTERS EXPENDITURE INCURRIN G WITH RESPECT TO THE PLYING OF BUS ARE FULLY VOUCHED AND BILLED RELATING TO EXPENSES , ASSESSEE ALSO PRESENTED THE BOOKS PRODUCED BEFORE THE AO. ALL THE FACTS WERE AVAILABLE WITH THE AO ALONGWITH THE PHOTOCOPY OF ALL BOOKS, BILLS AND VOUCHERS FOR HIS 3 BUSES. ASSESSEE HAS KEPT 3 REGISTERS AND KEPT ALL EXPENSES RECORDED IN THE SEPARATE REGISTER S . AFTER THE END OF THE YEAR, HE PROVIDED THIS REGISTER TO HIS FRIEND WHO IS BIT EDUCATED, WHO U S ED TO TOTAL RECEIPTS AND EXPENSES WHICH WERE THEN PROVIDED TO ADVOCATE FOR FILING THE RETURN. DURING THE RELEVANT YEAR WHEN THE ASSESSEE PUT HIS REGISTER ALONGWITH TDS CERTIFICATE IN A BAG , H E WAS IN A GOOD FAITH THAT THE BAG CONTAINS ALL 3 REGISTERS AND TDS CERTIFICATES IN IT THOUGH IN FACT THE BAG CONTAINS ONLY 2 BUSES RECORD. THE ASSESSEE HANDED OVER THE BAG AS IT IS TO HIS FRIEND WHO FURTHER PROVIDED THE DETAILS TO ASSESSEE CO U NSEL ON THE BASIS OF TWO REGISTER S AND ONE REGISTER ALONGWITH TDS CERTIFICATE GOT MISPLACED AT ASSESSEE S HOUSE. ASSESSEE CONTEND ED THAT HE DID NOT HAVE ANY MALAFIDE INTENTION ON HIDING ANY INCOME NOR ANY INTENTION TO EVADE ANY TAX. HE DID NOT CLAIM TDS ON ALL 3 BUSES TO RAISE HIS 3 REFUND. THE ERROR WAS BY NATURAL CAUSE BOTH THE TDS AND RECEIPTS WERE LEFT TO BE SHOWN. TO SUPP ORT THIS CONTENTION, ASSESSEE HAS FILED ALL THE DOCUMENTARY EVIDENCE BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) WHO HAVE NOT CONSIDERED / APPRECIATED THE EVIDENCE FILED BY THE ASSESSEE AND DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE. 5. AGGRI EVED BY THE ORDER OF THE AO, ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A), WHO HAS ALSO DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE BY DISMISSING THE APPEAL FILED BY THE ASSESSEE. 6. AGAINST THE ORDER OF THE LD. CIT(A), NOW THE ASSESSEE IS IN AP PEAL BEFORE THE TRIBUNAL. ASSESSEE HAS FILED THE WRITTEN SUBMISSIONS ALONGWITH ALL BILLS AND VOUCHERS SUPPORTING HIS CLAIM IN THE SHAPE OF PAPER BOOK. 7. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 8. I HAVE HEARD THE LD. DR AND PERUSED THE R ECORDS AVAILABLE WITH ME, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AND THE WRITTEN SUBMISSIONS ALONGWITH BILLS AND VOUCHERS AND OTHER DOCUMENTS FILED BY THE ASSESSEE SUPPORTING HIS CLAIM. I AM OF THE CONSIDERED VIEW THAT NO DOUBT THE ASS ESSEE HAS SHOWN THE INCOME OF 2 BUSES AND ESCAPED THE INCOME FROM 3 RD BUS DUE THE REASONS MENTIONED IN THE AVERMENTS MADE BY THE ASSESSEE, AS AFORESAID. KEEPING IN VIEW OF THE BUSINESS OF THE ASSESSEE AND EDUCATION OF THE ASSESSEE AND HIS FRIEND WHO WAS DE ALING WITH THE BUSINESS OF ASSESSEE, I AM OF THE CONSIDERED VIEW THAT THE EVIDENCE S PRODUCED BY THE ASSESSEE HAS NOT BEEN CONSIDERED AND APPRECIATED BY THE REVENUE AUTHORITIES BELOW. IT WOULD BE A GREAT INJUSTICE WITH THE ASSESSEE, IF A CHANCE TO SUBSTANT IATE HIS CLAIM BEFORE THE AO IS NOT GIVEN TO THE ASSESSEE. THEREFORE, I REMIT THE ISSUE IN DISPUTE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE IN 4 DISPUTE AFRESH, UNDER LAW, AFTER CONSIDERING ALL RELEVANT EVIDENCES FILED BY THE ASSESSEE. NE EDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE AO AND SUBMIT ALL THE RELEVANT EVIDENCES BEFORE HIM TO SUBSTANTIATE HIS CLAIM. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 / 8 /201 5 . S D / - [ H.S. SIDHU ] JUDICIAL MEMBER DATE: 6 / 8 /201 5 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 5