Mr. Mahendra Kumar Sharma, Noida V. ITO, New Delhi

ITA 574/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3658 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 20-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 02-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: PRAKASH NARAIN
• Keywords: Income from undisclosed sources; Opportunity of being heard
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `E: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T. A. NO.574/DEL/2011 ASSESSMENT YEAR : 2005-06 MR. MAHENDRA KUMAR SHARMA, INCOME-TAX OFFICER, C-1, (BASEMENT) SECTOR-61, VS. WARD 43(1), NEW DEL HI. NOIDA, U.P. 201301. PAN: AAHPS9820M (APPELLANT) (RESPONDENT ) APPELLANT BY: SHRI PRAKASH NARAIN, ADVOCATE. RESPONDENT BY: SHRI A.K. MONGA, SR. DR. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 1 0.12.2010 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN THE MATTER OF AN ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SEC. 144 OF THE INCOME-TAX ACT, 1961 (THE ACT), FOR THE ASSESSMENT YEAR 2005-0 6. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE WITH REGARD TO THE FOLLOWING ISSUE:- (1) WHETHER THE LEARNED CIT(A) IS JUSTIFIED IN CONF IRMING THE ASSESSING OFFICERS ACTION IN MAKING THE ASSESSMENT UNDER SEC. 144 OF THE ACT AT RS.3,54,437/- BY MAKING THE ADDITIONS OF RS.2,34,437/- 2 ANDRS.1,20,000/- ON ACCOUNT OF CURRENT INCOME OF TH E YEAR AND INCOME FROM UNDISCLOSED SOURCES RESPECTIVELY. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. 4. IN THIS CASE, THE AO HAD ISSUED NOTICE UNDER SEC . 142(1) ON 6.11.2007 ASKING THE ASSESSEE TO FILE A RETURN OF INCOME. IT WAS NOTICED BY THE AO THAT THE ASSESSEE HAD INCURRED THE PAYMENT OF RS.2,34,43 7/- THROUGH CREDIT CARD. THE AO TREATED THE SAME TO BE UNEXPLAINED EXPENDITU RE. THE AO ALSO ESTIMATED THE ASSESSEES CURRENT YEARS INCOME AT R S.1,20,000/-. THE AO, THEREFORE, COMPLETED THE ASSESSMENT AT RS.3,54,437/ - OR RS.3,54,440/-. 5. ON AN APPEAL, THE LEARNED CIT(A) CONFIRMED THE A OS ACTION. 6. IN THE COURSE OF HEARING OF THIS APPEAL, THE LEA RNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEE WAS AN EMPLO YEE OF STEEL AUTHORITY OF INDIA LTD. AND HAD FILED HIS RETURN OF INCOME FOR T HE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING TOTAL INCOME AT RS.6,82,324 /- AND TAX LIABILITY OF RS.1,51,816/- WAS DULY PAID. HE HAS PRODUCED BEFOR E US A COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME BEING NO.449100 2862 DATED 28 TH JULY, 2005 ISSUED BY THE DEPUTY/ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE 44/1, NEW DELHI. THIS RETURN FILED BY THE ASSESSEE HAS NOT BEEN TAKEN COGNIZANCE OF BY THE AO WHILE MAKING THE ASSESSMENT UNDER SEC. 144 OF THE ACT. SINCE THE ASSESSEE HAD ALREADY FILED HIS RETU RN OF INCOME VOLUNTARILY ON 3 28 TH JULY, 2005 BEFORE ISSUING NOTICE U/S 142(1) ON 6. 11.2007 BY THE PRESENT ASSESSIN G OFFICER OF WARD 43(1), DAO-67, NEW DELHI, WE FIND IT FIT AND PROPER TO RESTORE THE MATER BACK TO THE FILE OF THE AO HAVING JURISDICTION OVER THE ASSESSEES CASE FOR FRESH ASSESSMENT AFTER TAKING I NTO ACCOUNT THE RETURN OF INCOME ALREADY FILED BY THE ASSESSEE. WE, THEREFOR E, RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ASSESSMENT AFTER PR OVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORD ER ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. 8. THIS DECISION WAS PRONOUNCED IMMEDIATELY AFTER T HE HEARING WAS OVER ON 20 TH JUNE, 2011. SD/- SD/- (B.C. MEENA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH JUNE, 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT. 4