DINESH KUMAR, MEERUT V. ITO, WARD- 1(2), MEERUT

ITA 5645/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6154 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 31-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Opportunity of being heard
• Section: 271(1)(c); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCHES (CAMP AT MEERUT) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5645/DEL./2018 (ASSESSMENT YEAR : 2009-10) ITA NO.5646/DEL./2018 (ASSESSMENT YEAR : 2009-10) SHRI DINESH KUMAR, VS. ITO, WARD 1 (2), 864, MOHALLA KABIL GATE, MEERUT. MAWANA, MEERUT. (PAN : AWDPK3071G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAVINDER AGGARWAL, FCA SHRI ROHIT AGGARWAL, FCA REVENUE BY : SHRI S.S. RANA, CIT DR DATE OF HEARING : 10.01.2019 DATE OF ORDER : 24.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID APPEALS, THE SAME ARE BEING D ISPOSED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DI SCUSSION. 2. THE APPELLANT, SHRI DINESH KUMAR (HEREINAFTER RE FERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEALS I.E. IN ITA NO.5645/DEL/2018, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED ITA NO.5645 & 5646/DEL./2018 2 19.06.2018 AND IN ITA NO.5646/DEL/2018 SOUGHT TO SE T ASIDE THE IMPUGNED ORDER DATED 19.06.2018 BY CONFIRMING THE P ENALTY ORDER DATED 12.05.2017 PASSED U/S 271(1)(C) OF THE INCOM E-TAX ACT, 1961 (FOR SHORT THE ACT), BY LD. CIT (APPEALS), MEERUT QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUNDS INTER ALIA T HAT :- ITA NO.5645/DEL/2018 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L'D ASSESSING OFFICER HAS PASSED ORDER U/S 147/144 WITH OUT JURISDICTION AND THE L'D COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE SAME MUTATIS MUTANDIS. 2. THAT THE L'D LOWER AUTHORITIES HAVE ERRED IN AS SUMING THAT THE NOTICE U/S 148 MUST HAVE BEEN SERVED ON TH E ASSESSEE DESPITE CATEGORICAL DENIAL IN THIS REGARD BY THE AS SESSEE. 3. THAT WHILE PASSING THE ASSESSMENT ORDER UNDER SE CTION 147/144 , THE L'D ASSESSING OFFICER HAS ERRED IN NO T MAKING ANY ENQUIRY OR COLLECTING EVIDENCE IN SUPPORT OF THE AD DITION MADE WHICH NON DOING VITIATES THE VERY ASSESSMENT U/S 14 4, ESPECIALLY WHEN THE ASSESSEE HAS CATEGORICALLY DENIED SERVICE OF NOTICES U/S 142(1). 4. THAT THE L'D COMMISSIONER OF INCOME TAX ( APPEAL S) , HAS ERRED IN NOT BEING ABLE TO APPRECIATE THE FAMIL Y STRUCTURE AND THE POWER OF PURSE OF AN ILLITERATE FARMER FAMILY A ND HAS THEREBY NOT ONLY DISBELIEVED AFFIDAVIT OF SH SOHAN BEER BUT HAS LABELED IT FACTUALLY INCORRECT AND UNRELIABLE' WITHOUT ANY CO GENT REASONING OR EVIDENCE TO THE CONTRARY. 5. THAT THE L'D CIT(APPEAL) HAS GROSSLY ERRED IN SU STAIN THE ADDITION OF RS.15,62,200/- MADE BY THE AO. OBSERVAT IONS MADE, INFERENCES DRAWN AND FINDINGS RECORDED IN SUSTAIN T HE SAME ARE ARBITRARY, ILLEGAL AND MERELY BASED ON NON APPRECIA TION OF FAMILY STRUCTURE, CUSTOMS AND TRADITIONS EXISTENT IN RUSTI C FAMILIES. ITA NO.5646/DEL/2018 1. THE L'D ASSESSING OFFICER HAS ERRED IN IMPOSING PENALTY U/S 271(1) ( C) FOR RS.4,23,700/- FOR ALLEGED CONCE ALMENT OF INCOME. OBSERVATIONS MADE, INFERENCES DRAWN AND FIN DINGS RECORDED IN THIS REGARD ARE UNTENABLE ON FACTS AND IN LAW. ITA NO.5645 & 5646/DEL./2018 3 2. THAT NO ORDER ALLEGEDLY PASSED U/S 147/144 WAS S ERVED ON THE ASSESSEE NOR ANY NOTICE DATED 22-12-2016 WAS SE RVED ON THE ASSESSEE AND HENCE THE QUESTION OF GIVING ANY EXPLA NATION FOR THE CASH DEPOSITED IN BANK ACCOUNT DID NOT ARISE WHAT T O SAY OF A SATISFACTORY EXPLANATION. 3. THAT THE L'D ASSESSING OFFICER HAS ERRED IN SIMP LY RELYING ON HIS OBSERVATIONS AND FINDINGS IN THE QUANTUM ASS ESSMENT WHEREAS THE IMPUGNED PROCEEDINGS BEING QUASI CRIMIN AL IN NATURE SHOULD HAVE BEEN ADDRESSED INDEPENDENTLY. ITA NO.5614/DEL/2018 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE IS AN AGRICULTU RIST AND ASSESSING OFFICER NOTICED THAT HE HAS DEPOSITED A CASH AMOUNT OF RS.15,62,200/- IN HIS BANK ACCOUNT DURING THE YEAR UNDER ASSESSMENT AND CONSEQUENTLY, THE CASE WAS REOPENED UNDER SECTION 147 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT ) BY ISSUING NOTICE U/S 148 OF THE ACT ON 16.03.2016. ON FAILU RE OF THE ASSESSEE TO APPEAR BEFORE THE AO, DURING THE ASSESSMENT PROC EEDINGS, THE AO PROCEEDED TO FRAME ASSESSMENT EX-PARTE AND MADE ADDITION OF RS.15,62,200/- ON ACCOUNT OF CASH DEPOSITED IN SYND ICATE BANK, MURANA AND RS.969/- BEING THE INTEREST CREDITED IN HIS ACCOUNT MAINTAINED WITH SYNDICATE BANK. 4. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (APPEALS) WHO HAS CONFIRMED THE ADDITION BY DISMISSING ITA NO.5645 & 5646/DEL./2018 4 THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS CO ME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 5. 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. 6. IT WAS CATEGORIC CASE OF THE ASSESSEE BEFORE THE LD. CIT (A) THAT THE AMOUNT OF RS.14,03,200/- DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE BELONGS TO SOHANBEER SINGH WHO HAS EXE CUTED TWO SALE DEEDS DATED 12.01.2009 FOR A SALE CONSIDERATIO N OF RS.6,56,000/-, AVAILABLE AT PAGE 14 OF THE PAPER BO OK, AND ANOTHER SALE DEED DATED 12.01.2009 FOR A SUM OF RS.2,75,000 /-, AVAILABLE AT PAGE 30 OF THE PAPER BOOK (TOTAL CONSIDERATION RS.9 ,31,000/-) AND THE SAID AMOUNT HAS BEEN TRANSFERRED TO BANK ACCOUN T OF SOHANBEER SINGH BY WAY OF DEMAND DRAFTS ISSUED ON 22.01.2009, AS IS EVIDENT FROM BANK STATEMENT OF SOHANBEER SINGH, AVAILABLE A T PAGES 12 OF THE PAPER BOOK. 7. THE LD. DR FOR THE REVENUE BY RELYING UPON THE O RDER PASSED BY THE AO AS WELL AS LD. CIT (A) CONTENDED THAT WHE N UNDISPUTEDLY CHAND TARI, RELATIVE OF SOHANBEER SINGH HAS SOLD TH E LAND FOR RS.9,31,000/- THEN FROM WHERE THE REMAINING AMOUNT HAS BEEN DEPOSITED IN THE ACCOUNT OF ASSESSEE AND HE HAS FUR THER STATED THAT ITA NO.5645 & 5646/DEL./2018 5 WHEN SOHANBEER SINGH HIMSELF IS MAINTAINING THE ACC OUNT, THERE WAS NO GROUND FOR DEPOSITING THE SAID AMOUNT IN THE NAME OF THE ASSESSEE. 8. HOWEVER, TO REPEL THE AFORESAID ARGUMENTS OF LD. DR, THE LD. AR FOR THE ASSESSEE CONTENDED THAT THE AMOUNT OF RS .14,03,200/- WAS TAKEN AS SALE CONSIDERATION BUT THE SALE DEED W AS GOT EXECUTED ON THE CIRCLE RATE AND SOHANBEER SINGH WAS HAVING B ANK ACCOUNT AT VILLAGE KINONI AND THE CASH AMOUNT WAS DEPOSITED BE CAUSE OF SECURITY REASONS AS IT WAS DIFFICULT TO TAKE CASH A MOUNT TO A DISTANT PLACE AT THAT TIME. 9. CONTENTION OF THE ASSESSEE APPEARS TO BE PRIMA F ACIE SUSTAINABLE. MOREOVER, SOHANBEER SINGH HAS FILED T HE AFFIDAVIT EXPLAINING ALL THESE FACTS, WHICH IS AVAILABLE AT P AGE 7 OF THE PAPER BOOK, BUT THE SAME HAS NOT BEEN BELIEVED BY THE LD. CIT (A) NOR HE HAS PREFERRED TO GET SOHANBEER SINGH EXAMINED BY CA LLING A REMAND REPORT. 10. EVEN PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THERE IS NOT AN IOTA OF MATERIAL MENTIONED IN THE ASSESSMENT ORD ER AS TO ON WHICH DATE NOTICE U/S 148 OF THE ACT WAS SERVED UPO N THE ASSESSEE AND EVEN DATE OF SERVICE OF NOTICE U/S 142 (1) OF T HE ACT ON THE ASSESSEE HAS NOT BEEN MENTIONED BY THE AO WHO HAS R ATHER FRAMED THE ASSESSMENT IN HASTE. ALL THESE FACTS GO TO PRO VE THAT ADEQUATE ITA NO.5645 & 5646/DEL./2018 6 OPPORTUNITY OF BEING HEARD HAS NOT BEEN PROVIDED TO THE ASSESSEE BY THE AO AND THE DOCUMENTS PLACED ON FILE BEFORE THE LD. CIT (A) HAVE ALSO NOT BEEN EXAMINED BY CALLING A REMAND REP ORT RATHER THE LD. CIT (A) HAS DISMISSED THE APPEAL ON THE BASIS O F CONJECTURES AND SURMISES WITHOUT GOING INTO THE MERITS OF THE D OCUMENTS RELIED UPON BY THE ASSESSEE. IN THESE CIRCUMSTANCES, WE A RE OF THE CONSIDERED VIEW THAT TO MEET WITH THE ENDS OF JUSTI CE, THE ASSESSEE IS REQUIRED TO BE GIVEN ADEQUATE OPPORTUNITY OF BEI NG HEARD. CONSEQUENTLY, ASSESSMENT ORDER IS SET ASIDE AND THE FILE IS REMANDED BACK TO THE AO TO DECIDE AFRESH AFTER PROV IDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SO, TH E AFORESAID APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATIST ICAL PURPOSES. ITA NO.5646/DEL/2018 11. ON THE BASIS OF ASSESSMENT FRAMED U/S 144/147, AO INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. ON FAILURE OF THE ASSESSEE TO APPEAR AND DEFEND THE PENALTY PROCEEDIN GS, AO PROCEEDED TO LEVY THE PENALTY TO THE TUNE OF RS.4,2 3,700/- U/S 271(1)(C) OF THE ACT FOR CONCEALMENT OF INCOME. 12. HOWEVER, WE ARE OF THE CONSIDERED VIEW THAT SIN CE THE ASSESSMENT ORDER FRAMED U/S 144/147 OF THE ACT ON T HE BASIS OF WHICH PENALTY PROCEEDINGS WERE INITIATED HAS BEEN S ET ASIDE TO THE ITA NO.5645 & 5646/DEL./2018 7 FILE OF AO TO DECIDE AFRESH AFTER PROVIDING AN OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE, THE PENALTY PROCEEDINGS BEIN G CONSEQUENTIAL IN NATURE ARE ALSO LIABLE TO BE SET ASIDE TO THE AO TO DECIDE ACCORDINGLY AFTER FRAMING NEW ASSESSMENT ORDER. CO NSEQUENTLY, THE AFORESAID APPEAL FILED BY THE ASSESSEE IS HEREB Y ALLOWED. 10. RESULTANTLY, BOTH THE AFORESAID APPEALS FILED B Y THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF JANUARY, 2019. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 24 TH DAY OF JANUARY , 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.