Sh. Md. Saud Shahid, New Delhi V. ITO, New Delhi

ITA 5707/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65204 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 13 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: 2007-2008
• Appeal Filed On: 20-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Keywords: Opportunity of being heard

Judgement Text

I.T.A. NO. 5707/DEL/2011 1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 5707/DEL/2011 A.Y. : 2007-08 MD. SAUD SHAHID, VS. ITO, WARD-30(1), 3950, GALI KHANKHANA, NEW DELHI URDU BAZAR, JAMA MASJID, DELHI 110 006 (PAN : BIHPS 8913A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. DEEPAK MALIK, ADV. 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)-XXV, NEW DE LHI DATED 24.10.2011 PERTAINING TO ASSESSMENT YEAR 2007-08. 2. THE GROUNDS OF APPEAL READ AS UNDER:- I) THAT THE ALLEGATION OF FAILURE OF COMPLIANCE OF NOTICES IS CONTRARY TO THE FACTS ON RECORD CONFIRMING EXPART E ASSESSMENT COMPLETED U/S. 144 OF I.T. ACT ON THE BAC K OF THE APPELLANT. II) THAT THE ACTION OF THE LD. COMMISSIONER OF INCOME TAX (A) TO PRESUME CASH DEPOSITS OF ` 10,96,900/- INTO A XIS BANK BY ADDING INTO TURNOVER OF ` 26,72,963/- DISCLOSED CONFIRMING ESTIMATION @ NET PROFIT RATE OF 10% APPLIED ON ASSUMED TURNOVER OF ` 37,69,863/-. I.T.A. NO. 5707/DEL/2011 2 III) THAT THE APPELLANT CRAVE TO ADD, AMEND AND DELE TE ANY GROUND OF APPEAL AT THE TIME OF HEARING. 3. IN THIS CASE ASSESSING OFFICER NOTED THAT ASSES SEE HAD NOT ATTENDED PROCEEDINGS IN RESPONSE TO THE NOTICES DAT ED 12.11.2009 AND 23.12.2009, EVEN AFTER THEIR PROPER SERVICE UPO N THE ASSESSEE AND HAS ALSO NOT FURNISHED ANY EXPLANATION. ASSES SING OFFICER FURTHER NOTED THAT THERE WAS CASH DEPOSITS IN ASSESSEES AXIS BANK TO THE TUNE OF ` 10,96,000/-. ASSESSING OFFICER HELD THA T THE CASH DEPOSITS IN THE BANK TO THE TUNE OF ` 10,96,600/- SHOULD BE TRE ATED AS TURNOVER OF THE ASSESSEE IN ADDITION TO THE AMOUNT DECLARED IN THE RETURN IN THE TUNE OF ` 26,72,963/-. BY THIS WAY ASSESSING OFFI CER NOTED THAT THE TOTAL TURNOVER OF THE ASSESSEE FOR THE YEAR 2006-07 COMES TO ` 37,69,863/-. ASSESSING OFFICER NOTED THAT THE ASS ESSEE HAS NOT SUBMITTED ANY BILL OR VOUCHERS. HENCE, HE REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE AND COMPLETED THE ASSESSMENT BY CONSIDERING THE NET PROFIT OF THE ASSESSEE @ 10% OF THE TOTAL T URNOVER OF ` 37,69,863/- AND ACCORDINGLY, TAXABLE INCOME WAS COMP UTED AT ` 3,76,986/- AS AGAINST NET PROFIT DECLARED BY THE A SSESSEE FROM BUSINESS IN THE TUNE OF ` 1,52,285/-. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (A) CONCLUDED AS UNDER:- 3.6 I HAVE CONSIDERED THE EX-PARTE ASSESSMENT U/S. 144 AND THE ADDITION / ORDER OF THE ASSESSING OFFICER AND THE SUBMISSIONS OF THE ASSESSEE AND I DO NOT FIND ANY MERIT IN THE SUBMISSION OF THE ASSESSEE AS THE ASSESSEE HAS REPEATEDLY FAILED TO NON- I.T.A. NO. 5707/DEL/2011 3 COMPLY WITH THE NOTICES ISSUED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND AS SUCH THE ASSESSING OFFICER IS JUSTIFIED TO MAKE THE EX-PARTE ASSESSMENT U/.S 144. IT IS ALSO SEEN THAT THE ASSESSEE HAS DECLARED THE NOMINAL INCOME OF ` 1,31,867/- ONLY AGAINST THE TURNOVER OF ` 26,72,963/- AND THERE IS ONLY A PERSONAL WITHDRAWAL OF ` 72,000/- ONLY FOR THE HOUSEHOLD EXPENSES FOR THE WHOLE YEAR WHICH DOES NOT SEEM TO BE ADEQUATE AND SUFFICIENT. IT IS APPARENT THAT THE ASSESSEE IS NOT DECLARING FULL AND TRUE INCOME AND AS SUCH THE ASSESSING OFFICER IS JUSTIFIED TO ESTIMATE THE INCOME AND MAKE THE ADDITION. 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. LD. COUNSE L OF THE ASSESSEE SUBMITTED THAT ASSESSMENT IN THIS CASE WAS FRAMED U/S . 144 OF THE I.T. ACT AND LD. COMMISSIONER OF INCOME TAX (A) HAS ALSO C ONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. IT WAS ALSO SUBMITTED THAT ASSESSEE HAS NOT BEEN GIVEN ADEQUATE OPPORTUNITY TO CANVASS HIS CASE. ACCORDINGLY, HE REQUESTED THAT THE MATTER M AY BE REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE ISSUE AFRESH, AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. LD. DEPARTMENTAL REPRESENTATIVE DID NOT HAVE ANY OBJECTION TO THIS I.T.A. NO. 5707/DEL/2011 4 PROPOSITION. ACCORDINGLY, IN MY CONSIDERED OPINION , THE MATTER NEEDS TO BE REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE ISSUE AFRESH. I HOLD AND DIRECT ACCORDINGLY. NEEDLES S TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 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