Sh. Rajiv Bhati, Panipat V. ITO, Faridabad

ITA 5366/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4410 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 31-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: DR RAKESH GUPTA; SOMIL AGGRAWA L ADVS
• Keywords: Income from undisclosed sources; Opportunity of being heard; Peak credit
• Section: 142(1); 234B; 144; 2

Judgement Text

ITA 5366/DEL/2014 ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F: NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 5366/DEL /2014 ASSESSMENT YEAR: 2009-10 SHRI RAJIV BHATI, C/O RAHEJA & CO., 139, HUDA, SECTOR-11, PANIPAT-132103 (PAN: AFVPR6649J) VS INCOME TAX OFFICER, WARD-II(3), FARIDABAD. (APPELLANT) (RESPONDENT) APPELLANT BY :DR. RAKESH GUPTA & SHRI SOMIL AGGRAWA L, ADVS. RESPONDENT BY : SHRI ATIQ AHMAD, SR. DR DATE OF HEARING : 14.09.2017 DATE OF PRONOUNCEMENT: 20.09.2017 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL BY THE ASSESSEE IS INSTITUTED AGAINST T HE ORDER PASSED BY THE LD. CIT(A)-2, FARIDABAD VIDE OR DER DATED 21.07.2014 FOR ASSESSMENT YEAR 2009-10. THE GROUNDS RAISED ARE AS UNDER:- 1.00 THAT HAVING REGARD TO THE FACTS AND CIRCUMSTA NCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN NOT QUASHING THE IMPUGNED EX-PARTE ORDER PASSED BY LD. ITA 5366/DEL/2014 ASSESSMENT YEAR 2009-10 2 AO U/S 144 THAT TOO WITHOUT ASSUMING JURISDICTION A S PER LAW AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 2.00 THAT HAVING REGARD TO THE FACTS AND CIRCUMSTA NCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AGGREGATE ADDITION OF RS.91,47,000/- ON ACCOUNT OF CASH DEPOS ITS BY TREATING IT AS INCOME FROM UNDISCLOSED SOURCES A ND THAT TOO BY RECORDING INCORRECT FACTS & FINDINGS AN D WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT CONSIDERING THE SUBMISSIONS AND EVIDENCES F ILED BY THE ASSESSEE AND IN VIOLATION OF PRINCIPLES OF N ATURAL JUSTICE. 3.00 THAT WITHOUT PREJUDICE TO THE OTHER GROUNDS , LD. CIT(A) HAS ERRED IN LAW ANDON FACTS IN NOT GRAN TING THE BENEFITOF CASH SALES AND DEBTORS REALIZATION. T HE APPELLANT DISPUTES THE QUANTUM, AS HIGHLY EXCESSIVE AND UNCALLED FOR. 4.00 THAT WITHOUT PREJUDICE TO THE OTHER GROUNDS , LD. CIT(A) HAS ERRED IN LAW ANDON FACTS IN NOT DECIDING THE CASE ON THE BASIS OF WELL SETTLED PEAK THEORY AND F AILED IN CONFINING THE ADDITION TO THE PEAK BALANCE. THE ORDER OF LD. CIT (A) IS ARBITRARY BASED ON EXTRANEOUS CONSIDERATIONS, DEVOID OF FACTS ON RECORD, AGAINST PRINCIPLES OF JUSTICE AND AGAINST THE TRITE LAW THE REFORE ILLEGAL, ERRONEOUS, PERVERSE AND THUS UNCALLED FOR. 5.00 THAT IN ANY CASE AND IN ANY VIEW OF THE MATTE R, ACTION OF LD. CIT(A) IN NOT QUASHING THE IMPUGNED O RDER PASSED BY LD. AO AND NOT DELETING THE IMPUGNED ADDITION MADE THEREIN IS ILLEGAL, BAD IN LAW, UNJUS TIFIED AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FA CTUAL GROUNDS. 6.00 THAT HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN NOT REVERSING THE ACTION OF LD. AO IN CHARGING INTE REST U/S 234A AND 234B OF INCOME TAX ACT, 1961. ITA 5366/DEL/2014 ASSESSMENT YEAR 2009-10 3 7.00 THAT THE APPELLANT CRAVES THE LEAVE TO ADD, M ODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. AT THE OUTSET, LD. AR DREW OUR ATTENTION TO THE FACT THAT THE ASSESSMENT ORDER DATED 20.12.2011 HAD BEEN FRAMED U /S 144 OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSMENT WAS COMPLETED AT RS. 92,95,850/- AS AGAINST THE RETURNED INCOME OF R S. 1,48,852/- AND THUS, IT WAS A VERY HIGH PITCHED ASSESSMENT WHE REIN THE ENTIRE DEPOSITS OF RS. 91,47,000/- AS DEPOSITED IN THE VARIOUS BANK ACCOUNTS OF THE ASSESSEE WERE ADDED TO THE INC OME OF THE ASSESSEE. IT WAS ALSO SUBMITTED THAT ADEQUATE OPPO RTUNITY WAS NOT ACCORDED TO THE ASSESSEE TO EXPLAIN CASH DEPOSI TS ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE. IT WAS SUBMITTE D THAT THE FILE MAY BE RESTORED TO THE OFFICE OF THE ASSESSING OFFI CER SO THAT THE ASSESSEE GETS REASONABLE OPPORTUNITY TO EXPLAIN THE VARIOUS CASH DEPOSITS. 3. LEARNED DEPARTMENTAL REPRESENTATIVE HAD NO OBJEC TION TO THE CASE BEING REMANDED. 4. WE HAVE PERUSED THE RECORD AND HAVE ALSO HEARD T HE RIVAL SUBMISSIONS. A PERUSAL OF THE ASSESSMENT ORDER SHO WS THAT THE INITIAL NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 14.9.2010 FIXING ITA 5366/DEL/2014 ASSESSMENT YEAR 2009-10 4 THE CASE FOR 20.9.2010. AGAIN, ANOTHER NOTICE U/S 143(2) WAS ISSUED ON 24.09.2010 FIXING THE DATE FOR 29.09.2010 . NOTICE U/S 142(1) DATED 10.01.2011 WAS ISSUED FIXING THE DATE FOR 21.01.2011 AND ANOTHER NOTICE U/S 142(1) DATED 2.2. 2011 WAS ISSUED FIXING THE DATE FOR 15.02.2011. IT IS FURTH ER NOTED IN THE ASSESSMENT ORDER THAT FRESH NOTICES U/S 143(2) AND 142(1) WERE ISSUED ON 11.3.2011 FIXING THE DATE FOR 25.3.2011. ANOTHER NOTICE U/S 142(1) WAS ISSUED ON 2.9.2011 FIXING THE DATE F OR 9.9.2011. THUS, IT IS SEEN THAT NOTICES WERE ISSUED TO THE AS SESSEE GIVING A VERY SMALL TIME GAP FOR COMPLIANCE. FURTHER, THE D ATES WHEN THESE NOTICES WERE DESPATCHED FROM THE OFFICE AND W ERE ACTUALLY SERVED UPON THE ASSESSEE ARE ALSO NOT EVIDENT FROM THE ASSESSMENT ORDER. IN SUCH CIRCUMSTANCES, WE AGREE WITH THE CONTENTIONS OF THE LD. AR THAT THE ASSESSEE WAS NOT AFFORDED PROPER OPPORTUNITY TO PRESENT THE RELEVANT DETAILS/ DOCUMENTS. THEREFORE, IN THE INTEREST OF JUSTICE, WE RESTORE T HE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE MATTER AFRES H AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY TO PRESENT HIS CASE . WE ALSO DIRECT THE ASSESSEE TO FULLY COOPERATE WITH THE ASS ESSMENT PROCEEDINGS. ITA 5366/DEL/2014 ASSESSMENT YEAR 2009-10 5 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2017. SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA) PRESIDENT JUDICIAL MEMBER DATED: 20 TH SEPTEMBER, 2017 GS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR