ACIT, New Delhi V. Sh. Parminder Singh Kalra, New Delhi

ITA 5335/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2894 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 10-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RINKU SINGH SENIOR
• Assessee Lawyers: R K SHARDA
• Keywords: Business income; Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.5335/DEL./2016 (ASSESSMENT YEAR : 2010-11) MOHD. ISMILE, VS. ITO, WARD 1 (4), HOUSE NO.729, SANJAY COLONY, GHAZIABAD. ARTHALA, GHAZIABAD. (PAN : AAOPI9917Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.K. SHARDA, ADVOCATE REVENUE BY : MS. RINKU SINGH, SENIOR DR DATE OF HEARING : 22.08.2019 DATE OF ORDER : 03.09.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, MOHD. ISMILE (HEREINAFTER REFERRED TO A S THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 30.04.2019 PASSED BY THE COMMI SSIONER OF INCOME - TAX (APPEALS), GHAZIABAD QUA THE ASSESS MENT YEAR 2010-11 ON THE GROUNDS INTER ALIA THAT :- 1. THAT THE C.I.T.(APPEAL) HAVE NOT PLACED ANY NE XUS IN DETERMINING THE FACTS WHICH ARE GIVEN ACCORDING TO THE LAW HENCE THE ORDER IS NOT MAINTAINABLE. ITA NO.5335/DEL./2019 2 2. THAT THE ORDER PASSED BY THE CIT (APPEAL) IS BAD IN LAW & PASSED WITHOUT CONSIDERING ALL THE FACTS & THE REQU EST OF THE APPELLANT HENCE AGAINST THE PRINCIPLE OF NATURAL JU STICE. 3. THAT THE APPELLANT IS A POOR MAN & SELL RAW FISH ES IN GHAZIABAD AND NO ANY OTHER BUSINESS OR SOURCE OF IN COME. THE APPELLANT IS THE PERMANENT RESIDENT OF A BACKWARD C OLONY 'SANJAY COLONY, ARTHALA', GHAZIABAD AND NOT AWARE O F INCOME TAX & OTHER ALLIED LAWS. 4. THAT THE APPELLANT WAS UNABLE TO APPEAR ON THE L AST DATE OF HEARING AS HE WAS SICK AND ON BED REST AS PER TH E ADVICE OF THE DOCTOR HENCE OPPORTUNITY OF BEING HEARD MUST BE GIV EN TO THE APPELLANT IN THE INTEREST OF JUSTICE.(MEDICAL CERTI FICATE ATTACHED) 5. THAT THE AUTHORITIES BELOW HAVE ERRED AS WELL AS ON FACTS BY NOT CONSIDERING THE COMPLETE SUBMISSION & FACTS HENCE THE ORDER IS LIABLE TO BE QUASHED. 6. THAT THE APPELLANT WANTS TO INFORM THE COURT THA T DURING THE YEAR A HORRIBLE & TRAGIC INCIDENT OCCUR IN THE LIFE OF THE APPELLANT. THE APPELLANT'S SON JAVED (AGED 3 YEAR) WAS KIDNAPPED ON 23/11/2009. 7. THAT CIT (APPEAL) INTENTIONALLY NOT CONSIDERED A LL THE EVIDENCES OF KIDNAPPING IE - NEWS- PAPER CUTTING, F IR COPY & AFFIDAVIT FILED BY APPELLANT AS AN EVIDENCES / AS P ROOF OF THE KIDNAPPING OF HIS 3 YEARS OLD SON JAVED. 8. THAT AS THE APPELLANT BELONGS TO A LOWER MIDDLE CLASS FAMILY AND HAVE NO MONEY TO GIVE THE KIDNAPPERS SO APPELLANT REQUESTED AND APPEAL IN GENERAL PUBLIC TO HELP & GA VE MONEY TO RECOVER HIS SON AS HE HAS NO MONEY WITH HIM. AFTER SEEING THE CONDITION OF THE APPELLANT THE PEOPLE OF THE SURROU NDING & NEARBY AREA APART FROM ANY CAST & RELIGION ON HUMAN ITY GROUNDS HELPED THE APPELLANT BY GIVING CASH MONEY TO RECOVE R HIS SON FROM KIDNAPPERS. 9. THAT THE CIT (APPEAL) INTENTIONALLY NOT CONSIDER ED THE AFFIDAVIT GIVEN BY THE PEOPLE WHO FINICALLY HELPED THE APPELLANT TO RECOVER HIS KIDNAPPED CHILD FROM THE KIDNAPPERS .TH E IDENTITY OF FEW PEOPLE WHO SIGNED THE AFFIDAVIT ARE ATTACHED HE RE WITH .THE AFFIDAVIT GIVEN BY THE PEOPLE MUST BE ACCEPTED IN T HE INTEREST OF PRINCIPLE OF NATURAL JUSTICE. 10. THAT THE AMOUNT RECEIVED FROM THE PEOPLE TO RE SCUE HIS SON FROM KIDNAPPER & AMOUNT RECOVERED BY POLICE FRO M KIDNAPPERS NOT TO BE ADDED IN THE INCOME OF THE APP ELLANT AS ITS NOT THE INCOME OF THE APPELLANT. THE ORDER MUST BE AMENDED ON THAT GROUND. ITA NO.5335/DEL./2019 3 11. THAT THE APPELLANT FILED HIS INCOME TAX RETURN BY CALCULATING HIS INCOME @ 8% U/S-44AD OF IT ACT THE GROSS BUSINESS INCOME OF THE APPELLANT IS AND THIS FACTS ALSO DECLARED BEFORE A.O. IN WRITING.(COPY OF REPLY FILED BEFORE A.O. ATTACHED) 12. THAT THAT DURING THE YEAR THE APPELLANT ADMITTE D TOTAL GROSS BUSINESS INCOME RECEIPT OF RS.2109780/- AND F ILED HIS INCOME TAX RETURN VIDE DEPARTMENTAL RECEIPT NO. - 0 100043223 DT. 02/11/2010 AND FILED INCOME TAX ON PRESUMPTIVE BASI S AND CALCULATED HIS INCOME @ 8% ON RS.2109780/- AND ADMI TTED TOTAL INCOME RS. 169440/- WHICH CLEARLY SHOWS THE INTENTI ON & RESPECT TOWARDS THE LAW & THE WORKING OF THE APPELLANT. 13. THE A.O. PASSED AN EX-PARTY ORDER AND ADDITION OF RS.4865000/- IS MADE ON THE BASIS OF TOTAL BANK DEP OSITS. THE A.O. INTENTIONALLY NOT GIVE THE BENEFIT OF BANK DEP OSIT OF RS. 2109780/- WHICH IS ALREADY DECLARED BY THE APPELLAN T IN HIS INCOME TAX RETURN AND DECLARE HIS GROSS IN RECEIPT OF RS.2109780/- AND CALCULATED PROFIT @8% AND ADMIT RS .169440/- AS INCOME AND FILED HIS RETURN U/S-44AD OF INCOME T AX ACT. THE ORDER MUST BE MODIFIED ON THIS GROUND. 14. THAT IF THERE IS ANY FURTHER CLARIFICATION/ EXP LANATION/ DOCUMENTS REQUIRED KINDLY OFFER THE OPPORTUNITY TO THE APPELLANT IN THE INTEREST OF PRINCIPAL OF NATURAL JUSTICE. 15. THAT THERE IS A DELAY IN FILING THE APPEAL YOUR HONOR IS REQUESTED TO PLEASE CONDONE THE DELAY IN THE INTERE ST OF PRINCIPLE OF NATURAL JUSTICE. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE ISSUE AT HAND ARE : ASSESSING OFFICER (AO) NOTICED THAT AN AMOUNT OF RS.48,65,000/- HAS BEEN DEPOSITED IN CASH IN DIF FERENT SAVING BANK ACCOUNTS OF THE ASSESSEE. ON FAILURE OF THE A SSESSEE TO PUT IN APPEARANCE AND FURNISHING ANY EXPLANATION DESPITE I SSUANCE OF THE NOTICE, AO PROCEEDED TO MAKE ADDITION OF RS.48,65,0 00/-. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE ADDITION BY DISMI SSING THE ITA NO.5335/DEL./2019 4 APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. BARE PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) APPARENTLY GOES TO PROVE THAT VERACITY OF THE A FFIDAVIT FILED BY THE ASSESSEE FROM VARIOUS PERSONS WHO ALLEGED TO HA VE GIVEN CASH AMOUNT TO THE ASSESSEE ON HUMANITY GROUND TO GET AS SESSEES SON RELEASED FROM THE CLUTCHES OF KIDNAPPERS HAS NEVER BEEN INVESTIGATED. LD. CIT (A) HAS NOT PREFERRED TO CAL L THE REMAND REPORT FROM THE AO WHO HAS OTHERWISE FRAMED THE ASS ESSMENT 147/144 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT). 6. IN THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT TO MEET WITH THE ENDS OF JUSTICE, FAIR AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE WHO HAS UNDERT AKEN TO PROVE THE IDENTITY OF THE SMALL CREDITORS WHO HAVE ALLEGE DLY LENT HIM AN AMOUNT RANGING FROM RS.500/- TO RS.25,000/- SO AS T O GET HIS SON RELEASED FROM THE CLUTCHES OF KIDNAPPERS. ASSESSEE ALSO ARGUED THAT KIDNAPPERS OF HIS SON IN THE CRIMINAL CASE HAV E BEEN CONVICTED BY THE TRIAL COURT. IN THE GIVEN CIRCUMSTANCES, IM PUGNED ORDER ITA NO.5335/DEL./2019 5 PASSED BY THE LD. CIT (A) CONFIRMING THE ASSESSMENT ORDER IS HEREBY SET ASIDE AND FILE IS REMANDED BACK TO THE A O TO DECIDE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE IN ORDER TO ESTABLISH THE IDENTITY AND CRE DITWORTHINESS OF THE LENDERS SO AS TO DECIDE THE GENUINENESS OF TRAN SACTION. CONSEQUENTLY, APPEAL FILED BY THE ASSESSEE IS HEREB Y ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 3 RD DAY OF SEPTEMBER , 2019. SD/- SD/- (PRASHANT MAHARISHI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 3 RD DAY OF SEPTEMBER, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.