Shyam Sunder Saini, New Delhi V. ITO WARD - 44(5), New Delhi

ITA 5200/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3514 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 06-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PANKAJ KUMAR VATS
• Keywords: Depreciation
• Section: 133(6); 201; 13

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI (THROUGH VIRTUAL HEARING) BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO . 5200 /DEL/20 1 9 ASSESSMENT YEAR : 20 1 3 - 14 SHYAM SUNDER SAINI, H - 960, PALAM VILLAGE, RAMPHAL CHOW, EXT. PART I, POC HANPUR ROAD, HARIJAN BASTI, NEW DELHI. PAN: A JGPS8417G VS. ITO, WARD 44 ( 5 ), NEW DELHI. (APPELLANT ) (RESPONDENT) A SSESSEE BY : SHRI PANKAJ KUMAR VATS, CA RE VENUE BY : SHRI R .K. GUPTA, SR. DR DATE OF HEARING : 13.10. 20 2 1 DATE OF PRONOUNCEMENT : 13 . 10 . 20 21 ORDER TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 4 TH FEBRUARY, 2019 OF THE CIT(A) - 15, DELHI, RELATIN G TO ASSESSMENT YEAR 20 1 3 - 14 . 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, THESE ALL RELATE TO THE EX PARTE ORDER OF THE CIT(A) IN SUSTAINING THE VARIOUS ADDITIONS/DISALLOWANCES MADE BY THE AO AMOUNTING TO RS.24,58,631/ - . 3 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND IS THE SOLE PROPRIET OR OF M/S SHYAM MOTORS WHICH DEALS IN TRADING OF BATTERIES, HELMETS, ITA NO. 5200 / DEL/201 9 2 E - RICKSHAW AND OTHER RELATED ITEMS. HE FILED HIS RETURN OF INCOME ON 29 TH SEPTEMBER, 201 3 DECLARING INCOME OF RS.3,61,460/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED TH AT THE ASSESSEE HAS RECEIVED INTEREST INCOME OF RS.13,205/ - WHICH IS AS PER FORM NO.26AS. HOWEVER, THE ASSESSEE HAS NOT DECLARED THE SAME IN HIS RETURN OF INCOME. THEREFORE, THE AO MADE ADDITION OF THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. SIMILARLY , THE AO NOTED THAT THE ASSESSEE HAS MADE CASH DEPOSIT OF RS.6,66,398/ - IN HIS SAVINGS BANK ACCOUNT MAINTAINED WITH CENTRAL BANK OF INDIA, MOHAMMAD PUR, NEW DELHI. IN ABSENCE OF ANY REPLY FROM THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH DEPOSIT, THE AO MAD E ADDITION OF THE SAME. 4. THE ASSESSEE HAS ALSO SHOWN VARIOUS CREDITORS FROM WHOM THE AO OBTAINED INFORMATION U/S 133(6) AND NOTED THAT THERE IS DIFFERENCE OF RS.82,785/ - IN THE BALANCE CONFIRMED BY THEM AND THE BALANCE SHOWN BY THE ASSESSEE. IN A BSENCE OF ANY SATISFACTORY REPLY, THE AO MADE ADDITION OF THE SAME. FURTHER, IN ABSENCE OF ANY EVIDENCE TO HIS SATISFACTION REGARDING THE GENUINENESS OF PURCHASES MADE FROM M/S DASHMESH OVERSEAS INDIA (RS.2,57,569/ - ) AND M/S XS BIKES (RS.14,29,843/ - ) BOT H TOTALING TO RS.16,87,412/ - , THE AO MADE ADDITION OF THE SAME. IN ABSENCE OF ANY EVIDENCE TO HIS SATISFACTION, THE AO DISALLOWED 20% OF THE EXPENSES OUT OF PETROL & GAS EXPENSES AND TELEPHONE & MOBILES EXPENSES AND MADE ADDITION OF RS.6,333/ - . HE ALSO D ISALLOWED DEPRECIATION ON MOTOR CAR AND ITA NO. 5200 / DEL/201 9 3 BIKES AMOUNTING TO RS.2,500/ - . THUS, THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.28,38,280/ - AS AGAINST THE RETURNED INCOME OF RS.3,80,000/ - . 5. SINCE THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A) DESP ITE NUMBER OF OPPORTUNITIES GRANTED, THE LD.CIT(A), FOLLOWING THE DECISION OF THE HON BLE M.P. HIGH COURT IN THE CASE OF ESTATE OF TUKOJIRAO HOLKAR VS. CWT, REPORTED IN 223 ITR 480, DISMISSED THE APPEAL FILED BY THE ASSESSEE. 6 . AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IN APPEAL BEFORE THE TRIBUNAL . 7 . I HAVE HEARD THE RIVAL ARGUMENTS MADE BOTH THE SIDES AND PERUSED THE RECORD. IT IS AN ADMITTED FACT THAT DUE TO NON - APPEARANCE BEFORE THE CIT(A) DESPITE NUMBER OF OPPORTUNITIES GRANTED, THE LD.CIT(A) WAS CONSTRAINED TO PASS AN EX PARTE ORDER SUSTAINING THE VARIOUS ADDITIONS/DISALLOWANCES MADE BY THE AO. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO SU BSTANTIATE HIS CASE BEFORE THE CIT(A). CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUB STANTIATE HIS CASE AND DECIDE THE APPEAL AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE CIT(A) AND SUBSTANTIATE HIS CASE WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT FAILING WHICH THE LD.CIT(A) IS AT LIBERTY TO PASS ITA NO. 5200 / DEL/201 9 4 APP ROPRIATE ORDER AS PER LAW. I HOLD AND DIRECT ACCORDINGLY. TH E GROUND S RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . TH E DECISION WAS PRONOUNCED IN THE OPEN COURT ON 13. 1 0 . 20 21 . SD/ - ( R. K. PANDA ) ACCOUNTANT MEMBER DATED: 13 TH OCTOBER, 2 0 21 DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI