Sh. Dinesh Aggarwal, New Delhi V. ITO, New Delhi

ITA 5644/DEL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1703 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 07-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 21-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC - I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 5644 /DEL/201 3 (ASSESSMENT YEAR - 200 6 - 07 ) DINESH AGGARWAL, C/O - M/S.RRA TAXINDIA, D - 28, SOUTH EXTENSION, PART - I, NEW DELHI - 110049. PAN - AHUPA0226G ( APPELLANT) VS ITO, WARD - 25(1), NEW DELHI (RESPONDENT ) APPELLANT BY SH.TARUN KUMAR, ADV. RESPONDENT BY DR.B.R.R.KUMAR, SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 26.08.2013 OF CIT(A) - XVII, NEW DELHI PERTAINING TO 2006 - 07 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: - 1. THAT HAVING REGARD TO THE FACTS AND C IRCUMSTANCES OF THE CASE, LD. CI T(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN AGGREGATE ADDITION OF RS.2,18,000/ - AS UNEXPLAINED CASH CREDI T U/S 68 BEING THE AMOUNT O F LO AN RECEIVED FROM SMT. RU CHI SINGHAL AND SH . MANI RAM FOR RS.68,500/ - AND RS.1,50,000/ - RESPECTIVELY. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN ADDITION OF R S.1,01,000/ - AS UNEXPLAINED CASH CREDIT U/S 68 OF INCOME TAX ACT, 1961. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, IMPUGNED ADDITION AND IMPUGNED ASSESSMENT ORDER ARE BAD IN LAW, ILLEGAL, UNJUSTIFIED, BARRED BY LIMITATION, CONTRARY TO FACTS & LAW AND BASED UPO N RECORDING OF INCORRECT FACTS AND FINDING, WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTA NCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN CHARGING INTEREST 23 4 A AND 234B OF THE INCOME TAX ACT, 1961. 5. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF A PPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. DATE OF HEARING 07 .0 9 .2015 DATE OF PRONOUNCEMENT 09 . 1 0 .2015 I.T.A .NO. - 5644 DEL/201 3 PAGE 2 OF 3 2. THE PARTIES WERE HEARD ONLY O N LACK OF ADEQUATE OPPORTUNITY AGITATED IN GROUND NO. - 3 . APART FROM THAT RELYING ON THE SAID GROUND IT WAS ALSO SUBMITTED BY THE L D.AR THAT THE IMPUGNED ORDER WAS ALSO ASSAILED ON THE GROUND THAT IT WAS BAD IN LAW. ELABORATING THIS ASPECT IT WAS SUBMITTED THAT B EFORE THE CIT(A) , GROUND NO.2 AND GROUND NO.6 WERE RAISED WHEREIN THE ASSUMPTION OF JURISDICTION WAS CHALLENGED; AND LACK OF ADEQUATE OPPORTUNITY WAS ALSO CHALLENGED . THESE GROUNDS FOR READY - REFERENCE ARE RE PRODUCED HEREUNDER: - 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO HAS ERRED IN LAW AND ON FACTS IN FRAMING IMPUGNED ASSESSMENT ORDER WITHOU T ASSUMING JURISDICTION AS PER LAW AND WITHOUT SERVING THE MANDATORY NOTICE U/S 143(2) OF THE I. T. ACT, 1961. 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO HAS ERRED IN LAW AND ON FACTS IN FRAMING THE ASSESSMENT IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, BY RECORDING THE INCORRECT FACTS AND FINDINGS AND WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF HEARING. 3. IN THE CONTEXT OF THESE GROUNDS IT WAS SUBMITTED THAT ON GROUND N O.2, NO FINDING WAS GIVEN IN THE IMPUGNED ORDER AND GR OUND NO.6 WAS DISMISSED HOLDING IT AS GENERAL. ACCORDINGLY A PRAYER WAS MADE THAT THE ISSUES MAY BE RESTORED. 4 . THE RELEVANT FACTS O F THE CASE ARE THAT THE ASSESSEE RETURNED AN INCOME OF RS.1,04,920/ - . THE SAID RETURN WAS S ELECTED FOR SCRUTINY ASSESSME NT UNDER CASS . ASSESSMENT WAS CONCLUDED AT AN INCOME OF RS.4,23,920/ - AS A RESULT OF ADDITIONS MADE DISREGARDING THE CLAIM OF THE ASSESSEE THAT IT HAD RECEIVED LOANS FROM HIS FATHER SH. MANI RAM AGGARWAL AND HIS BROTHERS S WIFE SMT. RUCHI SINGHAL . THE C LAIM OF THE ASSESSEE THAT HE HAD GENERATED INCOME OF RS.48,000/ - FROM TUITIONS WAS ALSO NOT ACCEPTED . AS A RESULT OF WHICH ADDITION OF RS.3,19,000/ - WAS MADE. APART FROM R AISING JURISDICTIONAL ISSUES, THE ADDITIONS MADE ON MERITS WERE ALSO CHALLENGED . T HE LD.AR HAD FILED A PAPER BOOK AND WRITTEN STATEMENTS CONTENDING THAT EVEN ON MERIT, THE ADDITION WAS NOT MAINTAINABLE. THE LD. SR. DR STATED THAT HE WOULD NOT BE ABLE TO ADDRESS THE JURISDICTIONAL ISSUE NOT ADDRESSED BY THE CIT(A) AND COULD ONLY RELY O N THE AO. IN THE CIRCUMSTANCES, IT WAS HIS SUBMISSION THE ISSUE MAY BE RESTORED. 5. HAVING HEARD THE RIVAL SUBMISSIONS AND IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BOARD , THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUE IS I.T.A .NO. - 5644 DEL/201 3 PAGE 3 OF 3 RESTORED BACK TO T HE FILE TO THE CIT(A) DIRECTING THE SAID AUTHORITY TO FIRST DECIDE THE JURISDICTIONAL ISSUE BY WAY OF A SPEAKING ORDER IN ACCORDANCE WITH LAW AND THEREAFTER DECIDE THE ISSUE ON MERITS IF NEED BE . LIBERTY TO THE ASSESSEE IS GRANTED TO FILE FRESH EVIDENCES IF NEED BE IN SUPPORT OF ITS CLAIM ON MERIT I N THE EVENTUALITY THE ASSESSEE DOES NOT SUCCEED ON THE JURISDICTIONAL ISSUE . T HE SAID ORDER WAS PRONOUNCED IN THE PRESENCE OF THE PARTIES AT THE TIME OF HEARING ITSELF. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS GAINFULLY UTILIZED BY THE ASSESSEE AND THE ASSESSEE DULY PARTICIPATES IN THE PROCEEDINGS BEFORE THE CIT(A) WHO IS DUTY - BOUND TO PROVIDE A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 0 9 T H OF OCTO BER, 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 0 9 / 1 0 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI