Kavita Bhartia, New Delhi V. ITO, New Delhi

ITA 5635/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65210 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-07-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 15-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: GAURAV JAIN CHARU KAPOOR
• Keywords: Opportunity of being heard

Judgement Text

ITA NO. 5635/DEL/2011 1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 5635/DEL/2011 A.Y. : 2005-06 KAVITA BHARTIA, VS. ITO, WARD-43(1), 2, AMRITA SHERGILL MARG, NEW DELHI NEW DELHI 110 003 (PAN : AAQPB7717D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. GAURAV JAIN; CHARU KAPOOR, CA DEPARTMENT BY : DR. B.R.R. KUMAR, SR. D.R. O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXVIII, NEW DELHI DATED 7.2.2011 PERTAINING TO ASSESSMENT YEAR 2005-06. 2. THE GROUNDS OF APPEAL READ AS UNDER:- I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW THAT THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN HOLDING THAT THE APPELLANT HAS NOT SUBMITTED/ FIL ED THE RETURN ON INCOME FOR THE A.Y. 2005-06. II) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN UPHOLDING THE JURISDICTION OF THE ITO, WARD 43(1), NEW DELHI EVEN THOUGH THE APPELLANT WAS REGULARLY ASSESSED AT WARD 47(2), NEW DELHI. ITA NO. 5635/DEL/2011 2 III) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN UPHOLDING THE JURISDICTION OF THE ITO, WARD 43(1), NEW DELHI. IV) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN PASSING THE ORDER OF APPEAL WITHOUT AFFORDING A PRO PER OPPORTUNITY OF BEING HEARD. V) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. COMMISSIONER OF INCOME TAX (A) ERRED UPHOLDING THE ADDITION OF ` 3,24,567/- MADE U/S. 69. VI) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN ENHANCING THE ADDITION MADE TOWARDS EXPENSES FROM ` 1,20,000/- TO ` 1,28,655/-. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, OR VARY THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HE ARING. 3. IN THIS CASE ASSESSMENT WAS COMPLETED U/S. 144 OF THE I.T. ACT. THE ASSESSING OFFICER IN HIS ORDER NOTED THAT THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICE. ASSESSING OFFICER FURTHE R OBSERVED THAT HE WAS CONSTRAINED TO COMPLETE THE ASSESSMENT TO THE B EST OF HIS JUDGEMENT U/S. 144 OF THE I.T. ACT AND ON THE BASIS O F MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER NOT ED THAT THERE IS INFORMATION ON RECORD AS PER AIR THAT DEPOSIT WAS MADE BY THE ASSESSEE OF A SUM OF ` 3,24,567/- . IN VIEW OF THE FACT THAT NO EXPLANATION WHATSOEVER WAS FILED BY THE ASSESSEE R EGARDING THE ITA NO. 5635/DEL/2011 3 SOURCE OF DEPOSITS, THE ASSESSING OFFICER TREATED THE SAME AS UNEXPLAINED AND TREATED IT AS INCOME OF THE ASSESSE E FROM UNDISCLOSED SOURCES U/S. 69 OF THE I.T. ACT. FURTHERMORE, ASS ESSING OFFICER OBSERVED THAT ASSESSEE HAS NOT SUBMITTED DETAILS OF HIS INCOME /EXPENDITURE DURING THE YEAR UNDER CONSIDERATION. HENCE ASSESSING OFFICER ESTIMATED HER INCOME FOR THE YEAR AT ` 1, 20,000/-. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (A) NOTED THAT DESPITE SEVERAL ADJOURNMENTS, ASSESSEE FA ILED TO COMPLY WITH THEM. IN THIS VIEW OF THE MATTER, LD. COMMISSIO NER OF INCOME TAX (A) OBSERVED THAT THERE IS NO ALTERNATIVE, BUT TO C ONCLUDE THAT THE ASSESSEE DOES NOT WISH TO MAKE ANY FURTHER SUBMISSIO N AND THE APPEAL WAS BEING DECIDED ON THE BASIS OF MATERIAL ON RECOR D AND AFTER CONSIDERING THE STATEMENT OF FACTS AND GROUNDS OF A PPEAL FILED, LD. COMMISSIONER OF INCOME TAX (A) AFFIRMED THE ASSESSIN G OFFICERS ACTION FOR ADDITION U/S. 69 OF THE ACT AMOUNTING TO ` 32456 7/-. FURTHERMORE, LD. COMMISSIONER OF INCOME TAX (A) NOTED THAT ASSESS EE HAS HIMSELF SUBMITTED THAT THE ASSESSEE HAS FILED HER RETURN D ECLARING INCOME OF ` 1,28,655/-. HENCE, LD. COMMISSIONER OF INCOME TAX ( A) HELD THAT THE INCOME OF ` 1,20,000/- TAKEN IN THE ASSESSMENT ORDE R SHOULD BE SUBSTITUTED BY INCOME OF ` 1,28,655/- OR THE INCOME SHOWN BY THE ASSESSEE IN HER RETURN. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE ME. 6. I HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF T HE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. I NOTE THAT LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ASSESSMENT IN THIS CASE WAS FRAMED U/S. 144 OF THE I.T. ACT. FURTHERMORE, HE CLAIMED THAT ASSE SSEE HAS NOT BEEN GIVEN PROPER OPPORTUNITY OF BEING HEARD BEFORE THE ASSESSING OFFICER ITA NO. 5635/DEL/2011 4 AS WELL AS BEFORE THE LD. COMMISSIONER OF INCOME TAX (A). HENCE, HE REQUESTED THAT THE ISSUE MAY BE REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH. LD. DEPAR TMENTAL REPRESENTATIVE DID NOT HAVE ANY OBJECTION TO THIS PR OPOSITION. ACCORDINGLY, IN MY CONSIDERED OPINION, INTEREST OF J USTICE, WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF THE A SSESSING OFFICER TO CONSIDER THE ISSUE DE NOVO. HENCE, I HOLD AND DIRE CT ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/8/2012. SD/- [SHAMIM YAHYA] ACCOUNTANT MEMBER DATE: 03/8/2012 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES