M/s. Ankur Sethi, New Delhi V. ITO, New Delhi

ITA 5282/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96893 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 7 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: 2002-2003
• Appeal Filed On: 29-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHIRANJAN SENAPATI
• Keywords: Reopening of assessment; Gift; Principle of natural justice
• Section: 68; 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. 5 282 /DEL/201 4 A.Y. : 200 2 - 0 3 ANKUR SETHI , VS. ITO, WARD 25(4) 19 - A/78, WEST PUNJABI BAGH, NEW DELHI NEW DELHI (PAN : AQRPS - 512N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAJEEV SABHARWAL, CA 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) - XVI, DELHI DATED 31 . 7 .201 4 PERTAINING TO ASSESSMENT YEAR 200 2 - 0 3 . THE GROUNDS OF APPEAL READ AS UNDER: - 1. THAT THE LEARNED CIT(A) HAS ERRED IN DETERMINING THE TOTAL INCOME AT RS. 382085 / - AGAINST RETURNED INCOME OF RS. 131710/ - BY CONFIRMING THE ADDITIONS MADE BY THE LEARNED ITO IN THE ASSESSMENT ORDER. 2. THAT THE LEARNED CIT(A) HAS PASSED THE ORDER EXPARTE IN HASTE WITHOUT AFFORDING A REASONABLE OPPORTUNITY TO THE APPELLANT. NO NOTICE WAS ISSUED OR RECEIVED BY THE APPELLANT 2 FOR 23.07.2014. 3. THAT THE ORDER PASSED BY THE ITO AND CONFIRMED BY THE CIT(A) IS DEVOID OF ANY LEGAL BASIS AND IS VOID - AB - INITIO DUE TO FOLLOWING REASONS: (I) THAT THE NOTICE U/S 148 IS ILLEGAL AND WITHOUT ANY S UFFICIENT BASIS, THE INFORMATION RECEIVED FROM DIT (INV) - I, CANNOT BE SAID TO BE SUFFICIENT REASONS FOR REOPENING ASSESSMENT. (II) THAT SUFFICIENT REASON FOR REOPENING ASSESSMENT U/S 148 WERE NEITHER RECORDED NOR GIVEN TO THE APPELLANT. (III) THAT THE APPELLANT WAS NOT GIVEN COPIES OF STATEMENTS OF ALLEGED ACCOMMODATION, ENTRY PROVIDER NOR ANY CHANCE OF CROSS EXAMINATION PROVIDED TO THE APPELLANT. 4. THAT THE ORDER PASSED BY THE LEARNED CIT (A) IS UNLAWFUL AND UNWARRANTED ON FACTS AND CIRCUMSTANCES OF THE CASE I) THAT THE LEARNED CIT (A) IS SILENT ABOUT THE OBJECTION RAISED BY THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS AGAINST ISSUE OF NOTICE UNDER SECTION 148 VIDE LETTER FILED DURING ASSESSMENT PROCEEDINGS. II) THAT THE LEARNED CIT (A) STATED THAT THE PROPER REASONS AS PER REQUIREMENT OF LAW HAVE BEEN RECORDED FOR REOPENING OF ASSESSMENT PROCEEDINGS U/S 147. ACCORDING TO HIM THE REOPENING WAS BASED ON REASONABLE BELIEF. III) THAT THE LEARNED CIT CA) STATED THAT APPELLANT HAS FAILED TO DISCHA RGE THE PRIMARY ONUS PROVING THE CREDITWORTHINESS OF THE DONOR OF CAPACITY TO GIFT RS. 250375/ - . SINCE THE 3 CAPACITY OF THE DONOR TO GIFT THE SAID AMOUNT OF MONEY IS NOT ESTABLISHED BY THE ASSESSEE, THEREFORE 250375/ - FOUND CREDITED IN THE BANK ACCOUNT OF T HE ASSESSEE, ADDED BY THE AO U/S 68 IS FULLY JUSTIFIED . 5. THAT THE LEARNED CIT CA) HAS IGNORED THE FACTS AND CIRCUMSTANCES OF THE CASE AND MATERIAL ON RECORD IN PASSING THE ORDER PARTICULARLY SUBMISSIONS AND THE FACTS AND INFORMATION BEFORE THE INCOME T AX OFFICER. THE VERY FACT THAT ALL NECESSARY DOCUMENTS INCLUDING THE WEALTH TAX RETURN AND STATEMENT OF AFFAIRS OF THE DONOR, PROVIDING THE CREDITWORTHINESS OF THE DONOR WERE FILED BEFORE THE ITO HAVE BEEN WRONGLY IGNORED BY THE LEARNED ITO AND LD. CIT(A). 6. THAT THE APPELLANT CRAVES LEAVE TO ALTER, AMEND, DELETE OR ADD ALL OR ANY GROUND BEFORE OR AT THE TIME OF HEARING. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED, HENCE, WE ARE NOT REPEATED THE SAME FOR THE SAKE OF CONVENIENCE. 3 . I HAVE HEARD BOTH THE PARTIES AND PER USED THE R ECORDS AVAILABLE WITH ME, ESPECIALLY THE ORDER OF THE LD. CIT(A). I AM OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS DECIDED THE ISSUE IN DISPUTE EXPARTE ASSESSEE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM BEFORE HIM. N O DOUBT THAT THE LD. CIT(A) HAS DECIDED THE LEGAL ISSUE AGAINS T THE ASSESSE AS WELL AS ON MERITS, BUT WITHOUT GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE, WHICH IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, I REMIT BACK THE ISSUE IN DISPUTE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE T HE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 4 4 . 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