Maya Chaudhary, New Delhi V. ITO, New Delhi

ITA 5544/DEL/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6524 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 21-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBINA CHAUDHARI

Judgement Text

ITA NO. 5 5 44 /DEL./201 5 ASSESSMENT Y EAR: 2009 - 10 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SM C NEW DELHI) BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMB E R ITA NO. 5544 /DEL./201 5 ASSESSMENT YEAR: 200 9 - 10 MAYA CHAUDHARY C/O R.B. ARORA & CO., CAS, DSM - 127, DLF TOWERS, SHIVAJI MARG, MOTI NAGAR, NEW DELHI VS. ITO WARD - 60(2) , NEW DELHI (APPLICANT) (RESPONDENT) (PAN: A JCPC8616M ) ASSESSEE BY: DR. RAKESH GUPTA, ADV. SH. SAMIL AGGARWAL, ADV . REVENUE BY: MS. BEDOBINA CHAUDHARI, SR. DR DATE OF HEARING 06 / 0 3 /201 7 DATE OF PRONOUNCEMENT 0 7 / 0 3 /201 7 ORDER PER B.P. JAIN , ACCOUNTANT MEMBER : 1. THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD. CIT(A) - 19, NEW DELHI VIDE ORDER DATED 28 . 07 .201 5 FOR THE A.Y. 200 9 - 10 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) HAD ERRED, BOTH IN LAW, AS - WELL - AS IN FACTS OF THE CASE IN UP - HOLDING ADDITION OF RS.39,00,000/ - IGNORING, EXPLANATION OF THE APPELLANT . PAGE 2 OF 5 2. THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) HAD ERRED BOTH IN LAW AS - WELL - AS IN FACTS OF THE CASE IN NOT APPRECIATING THE EXPLANATION OF THE APPELLANT AND DRAWING ADVERSE INFERENCE FROM IT WITH BIASED MIND. 3. THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) HAD ERRED BOTH IN LAW AS - WELL - AS IN FACTS OF THE CASE IN MAKING PRESUMPTIONS AT HIS OWN AS TO BUSINESS ACTIVITIES OF THE ASSESSEE. 4. THE APPELLANT CRAVES LEAVE OF THIS HON BLE COURT TO ADD, AMEND, DELETE OR SUBSTITUTE ANY OF THE GROUNDS, APPEAL AT THE TIME OF ARGUMENTS. 2. THE BRIEF FACTS OF THE CASE ARE THAT AS PER AIR INFORMATION AVAILABLE, THE ASSESSEE HAS DEPOSITED THE SUM OF RS. 39 LAC IN HIS SAVING BANK ACCOUNT MAINTAINED WITH HDFC BANK, NOIDA . THE EXPLANATION FOR THE SOURCE OF THE SAME WAS GIVEN BY THE ASSESSEE AS HE WAS A RETAIL TRADER AND ALL THE S A LE OF THE ASSESSEE ARE IN CASH AND OUT OF CASH S ALES , THE ASSESSEE HAS DEPOSITED RS. 39 LAC IN HER BANK ACCOUNT AND COPY OF BALANCE SHEET AND PRO FIT AND LOSS ACCOUNT WERE SUBMITTED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER COLLECTED THE INFORMATION FROM SH. JAI PRAKASH ASSOCIATES LTD. TO WHICH THE ASSESSEE HAS MADE PAYMENT FOR PURCHASE OF FLAT AND ALSO FROM THE REPORT OF THE INSPECTOR IT WAS GATHERED THAT THE SECRETARY OF THE SOCIETY WAS NOT EVEN AWARE OF ANY BUSINESS ACTIVITY AT THE BUSINESS PREMISES . HOWEVER BEING NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE THE ASSESSING OFFICER MADE AN PAGE 3 OF 5 ADDITION OF RS. 39 LAC TO THE INCOME OF THE ASSESSEE U/S 69A OF THE ACT. 3 . THE LD. CIT (A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 4 . I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. IT WAS POINTED OUT BY THE DR. RAKESH GUPTA, ADVOCATE, THE LD. COUNSEL FOR THE ASSESSEE THAT THE INFORMATION BY THE INSPECTOR WAS COLLECTED AT THE BACK OF THE ASSESSEE AND THE SALE WAS NOT CONFRONTED TO THE ASSESSEE AND THEREFORE THE ASSESSMENT ORDER PASSED IS BAD IN LAW. 5. THE LD. DR ON TH E OTHER HAND RELIED UPON THE ORDERS OF BOTH THE AUTHORITIES BELOW. 6. THERE IS NO DISPUTE THAT THE ASSESSEE HAS FILED THE RETURN U/S 44AF OF THE ACT AND HAS SUBMITTED THAT THE DEPOSITS ARE OUT OF CASH S ALES WHICH ARE DECLARED IN THE BALANCE SHEET AND PROF IT AND LOSS ACCOUNT SUBMITTED BEFORE BOTH THE AUTHORITIES BELOW. BUT AT THE SAME TIME ANY INFORMATION COLLECTED AT THE BACK OF THE ASSESSEE AND SUCH INFORMATION BEING USED AGAINST THE ASSESSEE WITHOUT CONT ROVERTING THE EXPLANATION GIVEN IS BAD IN LAW AND T HEREFORE PASSING OF SUCH ORDER WITH SUCH INFORMATION COLLECTED AT THE BACK OF THE ASSESSEE, AGAINST THE ASSESSEE WITHOUT AFFORDING ANY OPPORTUNITIES OF BEING HEARD IS NOT JUSTIFIED . THEREFORE IN PAGE 4 OF 5 MY VIEW , THE ORDER PASSED BY THE ASSESSING OFFICER IS BAD IN LAW AND IS LIABLE TO BE QUASHED. THEREFORE, IN THE CIRCUMSTANCES AND FACTS OF THE CASE ALL THE GROUNDS OF APPEAL ARE ALLOWED AND THE APPEAL OF THE ASSESSEE IN ITA NO. 5544/DEL/2015 IS ALLOWED. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 8 . P RONOUNCED IN THE OPEN COURT ON 0 7 . 0 3 .201 7. S D / - ( B.P. JAIN ) ACCOUNTANT MEMB E R DATED: 0 7 . 0 3 .2017 NARENDER COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR PAGE 5 OF 5 DATE DRAFT DICTATED ON 06 .0 3 .2017 DRAFT PLACED BEFORE AUTHOR 06 .0 3 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 7 . 3.2017 KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK 7 .3.2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.