ACIT, New Delhi V. Smt. Sudha Nagar, New Delhi

ITA 5838/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2806 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 30-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 153A; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA A. PILLAI , JM ITA NO. 5838/DEL/2014 : ASSTT. YEAR : 2006 - 07 ITA NO. 5839/DEL/2014 : ASSTT. YEAR : 2007 - 08 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 21, NEW DELHI - 110055 VS SMT. SUDHA NAGAR, ROOM NO. 344, E - 2, ARA CENTRE, JHANDEWALAN EXTENSION, NEW DELHI - 110055 (APPELLANT) (RESPONDENT) PAN NO. AA BPN9048C ASSESSEE BY : SH. AKASHAT JAIN, CA REVENUE BY : SH. S. S. RANA, CIT DR DATE OF HEARING : 04 .01 .201 8 DATE OF PRONOUNCE MENT : 20 .03 .201 8 ORDER PER N. K. SAINI, AM : THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 23.07.2014 OF THE LD. CIT(A) - XXV, NEW DELHI. 2 . SINCE, THE ISSUES INVOLVED ARE COMMON IN THESE APPEALS WHICH WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY . 3 . THE GROUND S RAISED IN ITA NO. 5838/DEL/2014 FOR THE ASSESSMENT Y EAR 2006 - 07 READ AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.85,99,280/ - OUT OF ADDITION OF RS.97,04,280/ - (ACTUALLY OF RS.1,06, 54,280/ - ) MADE ON ACCOUNT OF UNEXPLAINED ENTRIES APPEARING IN BANK ACCOUNT. ITA NO S. 5838 & 5839 /DE L/201 4 SUDHA NAGAR 2 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO ERRED IN LAW AND ON FACTS OF THE CASE IN ADMITTING THE ADDITIONAL/FRESH EVIDENCES UNDER RULE 46A. 3(A) THE ORDER OF THE L D. CIT(APPEALS) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACT. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 4. SIMILAR GROUNDS HAVE BEEN RAISED BY THE DEPARTMENT FOR THE ASSESSMENT YEAR 2007 - 08. THE ONLY DIFFERENCE IS IN THE FIGURE OF THE DELETION OF ADDITION MADE BY THE AO , WHICH IS RS.1,91,33,815/ - INSTEAD OF 85,99,280/ - FOR THE ASSESSMENT YEAR 2006 - 07. 5 . DURING THE COURSE OF HEARING, THE LD. CIT DR AT THE VERY OUTSET S TATED THAT ON A SIMILAR ISSUE , THE DEPARTMENTAL APPEAL S FOR THE ASSESSMENT YEARS 2008 - 09, 2009 - 10 & 2011 - 12 IN ITA NO. 5840, 5841 & 5843/DEL/2014 ALONGWITH THE APPEALS OF THE ASSESSEE IN ITA NOS. 5533 TO 5539/DEL/2014 FOR THE ASSESSMENT YEAR S 2005 - 06 TO 2011 - 12 HAD BEEN RESTORED BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION VIDE ORDER DATED 01.12.2017 (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD). THE AFORESAID CONTENTION OF LD. CIT DR WAS NOT CONTROVERTED BY THE L D. COUNSEL FOR THE ASSESSEE. 6 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT THE APPEALS OF THE ASSESSEE FOR THE SAME ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2006 - 07 AND 2007 - 08 IN ITA NOS. 5534 & 553 5/DE L/2014 HAVE BEEN RESTORED TO THE FILE OF THE AO VIDE AFORESAID REFERRED TO ORDER DATED 01.12.2017 AND THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA S 5 & 5.1 OF THE SAID ORDER WHICH READ AS UNDER: ITA NO S. 5838 & 5839 /DE L/201 4 SUDHA NAGAR 3 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEV ANT RECORDS. WE FIND THAT ASSESSEE IS AN INDIVIDUAL AND FILED HER RETURN OF INCOME UNDER SECTION 139 OF THE I.T. ACT, 1961 DECLARING INCOME OF RS. 2,61,690/ - . A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE I.T. ACT, 1961 WAS CONDUCTED AT THE RESID ENTIAL PREMISES OF THE ASSESSEE ON 17.9.2010. CONSEQUENT UPON, NOTICE UNDER SECTION 153A OF THE I.T. ACT, 1961 WAS ISSUED ON 08.2.2012 REQUIRING THE ASSESSEE TO FILE HER RETURN OF INCOME. IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT, THE ASSESSEE FI LED RETURN UNDER SECTION 153A OF RS.2,61,690/ - ON 29.2.2012. THE ASSESSEE HAS ALSO SHOWN AGRICULTURAL INCOME OF RS. 2,95,000/ - IN HER RETURN OF INCOME. FROM THE RECORDS, IT REVEALS THAT THE ASSESSEE HAS SUBMITTED DETAILS / DOCUMENTS / EXPLANATION AS REQUIR ED BY THE AO FOR THE PURPOSE OF ASSESSMENT OF THE CASE OF ASSESSEE UNDER SECTION 153A/143(3) OF THE ACT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESSMENT WAS COMPLETED VIDE AN EX - PARTE ORDER DATED 26.3.2013 PASSED U/S. 153A/144 OF THE I. T. ACT, 1961, ASSESSING THE TOTAL INCOME AT RS. 20,89,990/ - AS AGAINST THE RETURNED INCOME OF RS. 2,61,690/ - , WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE APPEALED BEFORE THE LD. CIT(A) WHO DURING THE APPELLATE PROCEEDINGS HAS CONSIDERED THE PAPER BOOK ALONGWITH THE SUBMISSIONS, DOCUMENTS / EVIDENCES ETC. FILED IN ACCORDANCE WITH SECTION 250(4) OF THE ACT BY THE ASSESSEE WAS REMANDED TO THE AO FOR HIS COMMENTS AND EXAMINATION OF THE SAME OR TO PRODUCE ANY EVIDENCE OR DOCUMENT IN REBUTTAL OF THE ADDITIONAL EVIDENCE, IF ANY PRODUCED BY THE ASSESSEE BY WAY OF PAPER BOOK ETC. THE AO FURNISHED HIS REMAND REPORT DATED 23.6.2014 OFFERING HIS COMMENTS ON THE VARIOUS EVIDENCE, DOCUMENTS SUBMISSIONS ETC. FILED BY THE ASSESSEE. HAVING EXAMINED THE RECORDS HE EXPRESSED HIS RESERVATIONS ALSO ON THE ADMITTING OF THE ADDITIONAL EVIDENCE PRODUCED BEFORE THE LD. CIT(A), BECAUSE THE CONDITIONS OF RULE 46A HAS NOT BEEN FULFILLED IN THE CASE OF THE ASSESSEE. AO FURTHER CONT ENDED THAT IF AT ALL THE ADDITIONAL EVIDENCE WERE TO BE ADMITTED THEY COULD NOT BE DONE WITHOUT DEPTH ENQUIRY/ INVESTIGATION WHICH MIGHT TAKE A LOT OF TIME. HOWEVER, HE DID NOT POINT OUT AS TO WHICH OF THE EVIDENCE PAPER ETC. WERE IN THE NATURE OF ADDITION AL EVIDENCE. AFTER CONSIDERING THE REMAND REPORT, THE LD. CIT(A) HAS REJECTED THE AFORESAID OBJECTION OF THE ASSESSEE. HOWEVER, IN OUR CONSIDERED OPINION, THE OBJECTION ON THE ADMISSION OF ADDITIONAL EVIDENCE OF THE AO WAS VALID ONE AND NEEDS TO BE ENQUIRE D/INVESTIGATED/VERIFICATION IN DEPTH WHICH WAS NOT DONE BY HIM. ITA NO S. 5838 & 5839 /DE L/201 4 SUDHA NAGAR 4 5.1 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS EXPLAINED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE ORDERS PASSED BY THE REVENUE AUTHORITIES ARE AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND, THEREFORE, THE ISSUES INVOLVED IN THE APPEALS FILED BY THE ASSESSEE DESERVE TO BE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER DETAILED ENQUIRY / INVESTIGATION/VERIFICATION OF THE EACH AND EVERY E VIDENCE INCLUDING THE ADDITIONAL EVIDENCE FILED U/R 46A BEFORE THE LD. CIT(A) AND PROVIDE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH THE AO IN THE PROCEEDINGS A ND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND ALSO PRODUCE ALL THE DOCUMENTARY EVIDENCES BEFORE HIM TO SUBSTANTIATE ITS CASE. AS A RESULT, ALL THE 07 APPEALS FILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. 7 . SO, RESPECTFULLY FOLLOWING TH E AFORESAID REFERRED TO ORDER DATED 01.12.2017 IN ASSESSEE S OWN CASE, THE ISSUES RAISED IN THESE TWO APPEALS ARE SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH THE DIRECTION GIVEN IN THE AFORE SAID ORDER DATED 01.12.2017. 8 . IN THE RESULT, THE APPEAL S OF THE DEPARTMENT ARE ALLOWED FOR STATISTICAL PURPOSES . (ORDER P RONOUNCED IN THE COURT ON 20 /03 /2018 ) SD/ - SD/ - ( BEENA A. PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCO UNTANT MEMBER DATED: 20 /03 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR