Masroor Bag Mirza, Bulandshahr V. ITO, Ward-1(4), Meerut

ITA 5182/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5317 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 31-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: VAIBHAV GUPTA
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.5182/DEL/2018 ASSESSMENT YEAR: 2010-11 MASROOR BAG MIRZA, R/O TYRE WALI GALI, NEAR TAJ MASJID, ANUPSHAHR ROAD, BULANDSHAHR. PAN: ALEPM3852F VS. ITO, WARD-1(4), MEERUT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VAIBHAV GUPTA, CA REVENUE BY : SHRI S.L. ANURAGI, SR.DR DATE OF HEARING : 13.08.2019 DATE OF PRONOUNCEMENT : 21.08.2019 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 10 TH MAY, 2018 OF THE CIT(A), MEERUT, RELATING TO ASSESSMENT YEAR 201 0-11. 2. THE ASSESSEE, IN THE VARIOUS GROUNDS OF APPEAL H AS CHALLENGED THE ORDER OF THE CIT(A) SUSTAINING THE ADDITION OF RS.2 LAKHS OUT OF RS.3 LAKHS ADDED BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN T HE BANK ACCOUNT. ITA NO.5182/DEL/2018 2 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL. ON THE BASIS OF THE INFORMATION RECEIVED THAT THE ASSESSEE HAS MADE TRANSACTION OF RS.10 LAKHS OR MORE IN THE COMMODITIES EXCHANGE DURING F.Y. 2009-10, AN ENQUIRY LETTER WAS ISSUED TO THE ASSESSEE. SINCE THERE WAS NO COMPLIANCE FROM THE S IDE OF THE ASSESSEE, THE ASSESSING OFFICER REOPENED THE ASSESSMENT BY ISSUE OF NOTICE U/S 148 ON 29 TH MARCH, 2017. IN RESPONSE TO THE NOTICE U/S 148, THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME AT RS.1,49,600/-. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS MADE CASH DEPOS IT OF RS.3 LAKHS. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH CASH DEPOSIT. SINCE THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE EXPLAININ G THE SOURCE OF SUCH CASH DEPOSIT, THE ASSESSING OFFICER MADE AN ADDITION OF RS.3 LAKH S TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEAL, THE LD.CIT(A) RESTRICTED THE ADDITION TO RS.2 LAKHS. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE LD. COUNSEL FOR THE ASSESSEE, AT THE TIME OF HEARING, SUBMITTED THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT ON TH E GROUND THAT THE ASSESSEE HAS ENTERED INTO THE TRANSACTION OF RS.10 LAKHS OR MORE IN THE COMMODITY EXCHANGE. HOWEVER, NO SUCH ADDITION HAS BEEN MADE ON ACCOUNT OF WHICH THE CASE OF THE ASSESSEE WAS REOPENED AND THE ASSESSING OFFICER HAS MADE ADDITION ON SOME OTHER ISSUE. RELYING ON VARIOUS DECISIONS, HE SUBMITTED THAT WHEN NO ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON AN ISSUE ON WHICH THE CASE OF THE ASSESSEE WAS ITA NO.5182/DEL/2018 3 REOPENED, THE ASSESSING OFFICER CANNOT MAKE ANY OTH ER ADDITION IN THE ORDER PASSED U/S 147/143(3). HE ACCORDINGLY SUBMITTED THAT ON THIS L EGAL GROUND ITSELF THE ADDITION SUSTAINED BY THE CIT(A) HAS TO BE DELETED. 6. THE LD. DR, ON THE OTHER HAND, HEAVILY RELIED ON THE ORDER OF THE CIT(A) AND SUBMITTED THAT THE CIT(A) HAS ALREADY GRANTED SUBST ANTIAL RELIEF TO THE ASSESSEE AND, THEREFORE, THE ASSESSEE SHOULD NOT HAVE ANY GRIEVAN CE. 7. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT IS AN ADMITTED FACT THAT THE CASE OF THE ASSESSEE WAS REOPENED BY RECORDING THE FOLLOWING REASONS:- THE PAN BASED AIR INFORMATION WAS RECEIVED AND NMS NOTICE FOR VERIFICATION WAS ISSUED. THE INFORMATION WAS CONTRACT FOR RS.1 0,00,000/- OR MORE IN THE COMMODITIES EXCHANGE IN F.Y. 2009-10 I.E., A.Y. 201 0-11. THE ASSESSEE DOES NOT REPLIED AND ALSO NOT FILED ITR OF THIS ASSESSME NT IT SEEMS THAT SHRI MASROOR BAIG MIRZA IS AVOIDING FROM PROVIDING THE DETAILS B ECAUSE THE ASSESSEE IS CONCEALING THE INCOME FROM THE DEPARTMENT TO TILL D ATE. HENCE, I HAVE REASONS TO BELIEVE THAT THESE TRANSACTIONS INCOME CHARGEABLE T O TAX MORE THAN RUPEES ONE LAKHS HAS BEEN ESCAPED ASSESSMENT FOR ASSESSMENT YE AR 2010-11. IT APPROVED THE NOTICE U/S 148 MAY BE ISSUED FOR A.Y. 2010-11. 8. HOWEVER, A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT NO ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF TRANSAC TION IN COMMODITY EXCHANGE AND HE HAS MADE ADDITION OF RS.3 LAKHS BEING THE UNEXPL AINED SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT. IT IS THE SETTLED PROPOSITION OF LAW THAT WHEN A CASE IS REOPENED ON AN ISSUE, BUT, NO ADDITION HAS BEEN MADE BY THE ASSESS ING OFFICER ON THAT VERY ISSUE, THE ASSESSING OFFICER IS PRECLUDED FROM MAKING ANY OTHE R ADDITION WITHOUT ISSUING FRESH NOTICE U/S 148. SINCE, IN THE INSTANT CASE, NO ADD ITION HAS BEEN MADE BY THE ASSESSING ITA NO.5182/DEL/2018 4 OFFICER ON ACCOUNT OF WHICH THE CASE OF THE ASSESSE E WAS REOPENED, THEREFORE, THE ASSESSING OFFICER CANNOT MAKE ADDITION ON SOME OTHE R ISSUE. THEREFORE, THE VERY BASIS OF ADDITION MADE BY THE ASSESSING OFFICER IS NOT LEGALLY SUSTAINABLE. I, THEREFORE, DELETE THE ENTIRE ADDITION. THE APPEAL FILED BY TH E ASSESSEE IS ACCORDINGLY ALLOWED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 2 1.08.2019. SD/- ( R.K. PANDA) ACCOUNTANT MEMFBE R DATED:21 ST AUGUST, 2019 DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI