M/s Yonix Enterprises (P) Ltd., New Delhi V. ITO, New Delhi

ITA 5779/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4294 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 06-04-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 20-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI NAOREM
• Assessee Lawyers: S KRISHNAN
• Keywords: Opportunity of being heard; Additional evidence
• Section: 147; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH NEW DELHI, BENCH NEW DELHI, BENCH NEW DELHI, BENCH I II I BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER AND SHRI K. D. RANJAN, ACCOUNTANT MEMBER ITA NO. 5779/DEL/2010 (ASSESSMENT YEAR 2002-03) M/S. YONIX ENTERPRISES (P) LTD., VS. ITO, WARD 18( 4), 84-M BLOCK COMMERCIAL COMPLEX, NEW DELHI GREATER KAILASH, NEW DELHI- 110 048 (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AAACY1524A APPELLANT BY: SHRI S. KRISHNAN, ADV. RESPONDENT BY: MS. BANITA DEVI NAOREM, SR. DR ORDER ORDER ORDER ORDER PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: 1. THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2002-03 ARISES OUT OF THE ORDER OF LD. CIT(A) XXI, NEW DELH I. THE GROUNDS OF APPEAL RAISED ARE REPRODUCED AS UNDER: THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE FOLLOWI NG ACTIONS OF THE ASSESSING OFFICER: A) I) IN INITIATING THE PROCEEDINGS U/S 147 OF THE ACT WHICH WERE ILLEGAL AND AVOID II) IN CONFIRMING THE ORDER PASSED U/S 144 OF THE A CT WHICH WAS WITHOUT GIVING DUE AND ADEQUATE OPPORTUNI TY OF EVEN NOTICE TO THE ASSESSEE. B) IN NOT ADMITTING EVIDENCE AS SUBMITTED IN TERMS OF RULE 46A OF THE I T RULES, 1961. C) IN MAKING AN ADDITION OF ` 29,05,000/- AS INCOME FROM UNDISCLOSED SOURCE BEING AMOUNT OF SHARE APPLICATIO N MONEY RECEIVED FROM THE CORPORATE ASSESSEES. I.T.A.NO. 5779/DEL/2010 2 ALL THE ABOVE ACTIONS OF THE CIT(A) BEING ARBITRARY , FALLACIOUS AND UNJUSTIFIED, MUST BE QUASHED. 2. AT THE OUTSET LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER PASSED ORDER U/S 144 WITHOUT PROV IDING PROPER OPPORTUNITY OF BEING HEARD. BEFORE CIT(A), THE A DDITIONAL EVIDENCE WAS FIELD BY THE ASSESSEE. THE ADDITIONAL EVIDENCE WAS NOT ADMITTED BY THE LD. CIT(A) IN VIEW OF THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASES OF CIT VS SUBBU SHASHANK 32 7 ITR 527 WHEREIN IT HAS BEEN HELD THAT EVIDENCE PRODUCED BY THE ASSESSEE UNDER RULE 46A(I) COULD NOT BE CONSIDERED ON MERIT UNLESS THE ASSESSING OFFICER WAS GIVEN OPPORTUNITY TO CROSS EX AMINE THE WITNESS. SINCE THE ASSESSMENT ORDER WAS PASSED U/S 144 AND LD. CIT(A) HAD NOT ADMITTED ADDITIONAL EVIDENCE IT HAS BEEN PLEADED THAT THE CASE MAY BE SET ASIDE TO THE FILE OF THE A SSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE MATTER IN THE LIG HT OF THE EVIDENCE FILED IN THE FORM OF ADDITIONAL EVIDENCE BEFORE CIT (A). 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE, THE AS SESSING OFFICER HAD PASSED EX-PARTY ORDER ASSESSING AN AMOUNT OF ` 29.0 5 LACS U/S 68 OF THE ACT ON ACCOUNT OF CREDIT ENTRY APPEARING IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE FILED ADDITIONAL EVIDEN CE BEFORE CIT(A) TO EXPLAIN THE CREDIT ENTRY IN THE BANK ACCOUNT. T HE ADDITIONAL EVIDENCE WAS NOT ADMITTED BY LD. CIT(A). IN THE IN STANT CASE, THE ASSESSMENT HAD BEEN MADE U/S 144 OF THE ACT LD. CIT (A) HAD ALSO NOT ADMITTED THE ADDITIONAL EVIDENCE WHICH IN OUR O PINION, SHOULD HAVE BEEN ADMITTED AND COMMENTS OF THE ASSESSING OF FICER SHOULD HAVE BEEN OBTAINED. WE, THEREFORE, FEEL IT PROPER TO SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH TH E DIRECTION TO EXAMINE THE ADDITIONAL EVIDENCE FILED BEFORE CIT(A) AND DECIDE THE ISSUE ON MERITS AFTER PROVIDING PROPER OPPORTUNITY OF HEARING TO THE I.T.A.NO. 5779/DEL/2010 3 ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERA TE WITH THE ASSESSING OFFICER IN GETTING THE ASSESSMENT FRAMED IN ACCORDANCE WITH THE PROVISIONS OF LAW. WE ORDER ACCORDINGLY. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH APR., 2011. SD./- SD./- (A. D. JAIN) (K. D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:13 TH APR., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI