Smt. Madhu Saraf, New Delhi V. ACIT, New Delhi

ITA 5820/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4760 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 22-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SHEFALI SWAROOP
• Assessee Lawyers: ASHOK KUMAR JAIN
• Keywords: Document seized; Opportunity of being heard; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. K. N. CHARY , JM ITA NO. 5820 /DEL/2014 : ASSTT. YEAR : 2009 - 10 MADHU SARAF, 1290, KATRA DHULLA, CHANDNI CHOWK, NEW DELHI VS ACIT, CENTRAL CIRCLE - II, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A PPPS8499K ASSESSEE BY : SH. ASHOK KUMAR JAIN, CA REVENUE BY : MRS. SHEFALI SWAROOP, CIT DR DATE OF HEARING : 12.09 .201 7 DATE OF PRONOUNCEMENT : 13 . 0 9 .201 7 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 27.08 .2014 OF LD. CIT(A) - III , NEW DELHI . 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE CONFIRMATION OF ADDITION OF RS.2,79,848/ - MADE BY THE AO ON ACCOUNT OF UNACCOUNTED SALES. 3 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT A SIMILAR ISSUE WAS SUBJECT MATTER OF THE ASSESSEE S APPEAL IN ITA NO. 2150/DEL/2014 FOR THE ASSESSMENT YEAR 20 08 - 09 BEFORE THE ITAT DELHI BENCH SMC - 2 , NEW DELHI WHICH WAS DECIDED VIDE ORDER DATED 31.07.2015 AND AGAINST THE SAID ORDER A MISCELLANEOUS APPLICATION ITA NO. 5820 /DEL /201 4 MADHU SARAF 2 NO. 24/DEL/2016 WAS FILED WHICH HAS BEEN DISPOSED OFF VIDE ORDER DATED 28.04.2017 AND NOW THE ISSUE IS COVERED BY THE SAID ORDER DATED 28.04.2017, BECAUSE THE FACTS ARE IDENTICAL IN BOTH THE YEARS. 4 . IN HER RIVAL SUBMISSIONS THE LD. CIT DR COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5 . AFTER CONSIDERING THE SUBMIS SIONS OF BOTH THE PARTIES AND PERUSING THE M ATERIAL AVAILABLE ON THE RECORD, I T IS NOTICED THAT EARLIER VIDE ORDER DATED 31.07.2015 FOR THE ASSESSMENT YEAR 2008 - 09 IN ITA NO. 2150/DEL/2014, THE APPEAL OF THE ASSESSEE WAS DISMISSED. HOWEVER, WHEN IT WAS BRO UGHT TO THE NOTICE OF THE ITAT DELHI BENCH SMC - 2 IN MISCELLANEOUS APPLICATION NO. 24/DEL/2016 THAT THERE WERE CERTAIN MISTAKES WHICH WERE APPARENT FROM THE RECORD, THE ORDER DATED 31.07.2015 WAS RECTIFIED AND THE ISSUE WA S SET ASIDE TO THE FILE OF THE AO FOR MAKING THE FRESH ASSESSMENT AFTER VERIFYING THE SEIZED DOCUMENTS. THE RELEVANT FINDINGS ARE GIVEN IN PARA 4.1 OF THE AFORESAID ORDER DATED 28.04.2017 WHICH READ AS UNDER: 4.1 ON PERUSAL OF ANNEXURE - 1, I AGREE WITH THE SUBMISSION OF THE APPLICANT THAT THERE ARE MISTAKES APPARENT FROM RECORD IN THE ORDER AS DISCUSSED HEREIN IN PARA NOS. 2 AND 2.1, WHICH NEED RECTIFICATION UNDER SECTION 254(2) OF THE ACT FOR JUST AND PROPER OUTCOME BASED ON CORRECT FACTUAL PREMISES OF THE CASE. AFTER RECTIFICATION OF THE ORDER, THE REMAINING ORDER AFTER PARA NO. 10, WILL BE READ AND UNDERSTOOD AS UNDER: 11. ON PERUSAL OF THESE DOCUMENTS COPIES OF WHICH HAVE BEEN MADE AVAILABLE IN THE PAPER BOOK. I AM OF THE VIEW THAT WHEN IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT THE DOCUMENTS ARE IN ITA NO. 5820 /DEL /201 4 MADHU SARAF 3 THE HAND WRITING OF THE ASSESSEE OR HER HUSBAND OR THEIR EMPLOYEES, THE ONUS LIES UPON THE ASSESSING OFFICER TO ESTABLISH THAT THESE DOCUMENTS PERTAIN TO THE ASSESSEE AND THE ONUS OF THE ASSESSEE IS CONFINED TO EXPLAIN THE ENTRIES AGA INST THE NAME AGAINST THE ASSESSEE ON DOCUMENTS. IN THE INTEREST OF JUSTICE, I, THUS, SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE SEIZED DOCUMENT ACCORDINGLY AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND MAKE T HE ASSESSMENT AFRESH. THE GROUNDS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 12. IN RESULT THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 31.07.2015. 6 . SO, RESPECTFULLY FOLLOWING THE EARLIER ORDER DATED 28.04.2017 OF THE ITAT, THE ISSUE UNDER CONSIDERATION IS SET ASIDE TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH THE DIRECTIONS GIVEN FOR THE PRECEDING ASSESSMENT YEAR 2008 - 09 IN ITA NO. 2150/DEL/2014. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES . (O RD E R PRONOUNCED IN THE COURT ON 13 /0 9 /2017 ) SD/ - SD/ - ( K. N. CHARY ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DAT ED: 13 /09 / 2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR