Harish Kumar, Ghaziabad V. ITO WARD - 1(3), Ghaziabad

ITA 5902/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2730 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARA TH KHAN
• Keywords: Additional evidence; Non compliance
• Section: 142(1); 201; 147; 69; 148; 144

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC - 1 : NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO. 5 902 /DEL/201 9 ASSESSMENT YEAR : 20 1 0 - 11 HARISH KUMAR, C/O RAMAN SHARMA, ADVOCATE, 117, FF, NAVYUG MARKET, GHAZIABAD. UTTAR PRADESH. PAN : BCEPK4087J VS ITO, WARD - 1(3), GHAZIABAD. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : SHRI ROHIT TIWARI, A DVOCATE RE VENUE BY : SHRI FARATH KHAN, SR. DR DATE OF HEARING : 18 . 0 2 . 20 2 1 DATE OF PRONOUNCEMENT : . 0 2 . 20 2 1 ORDER PER R. K. PANDA, AM : TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 2 8 TH FEBRUARY, 201 9 OF THE CIT(A) , GHAZIABAD, RELATING TO ASSESSMENT YEAR S 20 10 - 11 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL. INFORMATION WAS OBTAINED BY THE AO AS PER AIR INFORMATION THAT THE ASSESSEE HAS DEPOSITED AN AMOUNT OF RS.17,57,500/ - IN THE SAVINGS BANK ACCOUNT DURING F.Y. 2009 - 10. TO VERIFY THE GENUINENESS OF THE TRANSACTION, VERIFICATION LETTERS DATED 2 9 TH APRIL, 2016 AND 20 TH JANUARY, 2017 WERE ISSUED TO THE ASSESSEE AT THE ADDRESS GIVEN BY THE FILER. ITA NO. 5902 /DEL/201 9 2 SINCE THERE WAS NO COMPLIANCE TO THE NOTICE ISSUED BY THE AO, HE REOPENED THE ASSESSMENT INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT AFTER OBTAININ G NECESSARY APPROVAL U/S 151 FROM THE APPROPRIATE AUTHORITY AND STATUTORY NOTICE U/S 148 DATED 24 TH MARCH, 2017 WAS ISSUED TO THE ASSESSEE ON HIS LAST KNOWN ADDRESS. THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE DESPITE NUMBER OF OPPORTUNITIES GRA NTED. ONLY ON 26 TH MAY, 2017 THE ASSESSEE APPEARED AND SOUGHT ADJOURNMENT WHICH WAS DULY GRANTED BY THE AO. SINCE THERE WAS NON - APPEARANCE FROM THE SIDE OF THE ASSESSEE THEREAFTER, THE AO MADE ADDITION OF RS.17,57,500/ - TO THE TOTAL INCOME OF THE ASSESSE E U/S 69 IN THE EX PARTE ORDER PASSED BY HIM. BEFORE THE CIT(A), THE ASSESSEE FILED AN APPLICATION UNDER RULE 46A FOR ADMISSION OF CERTAIN ADDITIONAL EVIDENCE. HOWEVER, THE LD.CIT(A) REJECTED THE ADDITIONAL EVIDENCES FILED BEFORE HIM AND DISMISSED THE AP PEAL FILED BY THE ASSESSEE. 3. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS: - 1. THAT ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A), GHAZIABAD HAS E RRED IN CONFIRMING THE ORDER PASSED BY THE ASSESSING OFFICER U/S 147/144 FOR NON COMPLIANCE WITH THE NOTICES U/S 148 AND 142(1) OF THE IT ACT, 1961. 2. THAT ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A), GHAZIABAD HAS ERRED IN SUSTAINING THE ADDITION OF CASH DEPOSIT OF RS 17,57,500/ - TO THE TOTAL INCOME OF THE APPELLANT WITHOUT CONSIDERING THE FACTS THAT IMPUGNED ORDER PASSED IS EX - PARTE TO ASSESSEE WITHOUT MATERIAL ON RECORDS. 3. THAT THE LD CIT (A) ALSO ERRED IN LAW ON FACTS AND SURROUNDING CIRCUMSTANCES IN OUT RIGHTLY REJECTING THE APPLICATION U/S 46A OF THE INCOME TAX ACT, 1961 WITHOUT ANY SPEAKING ORDER IN AN ARBITRARY AND FANCIFUL MANNER LEADING TO CLOSURE OF THE DOORS OF JUSTICE TO THE APPELLANT. ITA NO. 5902 /DEL/201 9 3 4 . I HAVE CONSIDERED T HE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE ASSESSING OFFICER AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND, THE CASE OF THE ASSESSEE WAS RE OPENED ON THE GROUND THAT THE ASSESSEE DID NOT RESPOND TO THE VERIFICATION LETTERS ISSUED BY THE AO SEEKING INFORMATION FROM THE ASSESSEE REGARDING THE SOURCE OF DEPOSIT OF RS.17,57,500/ - IN THE SAVINGS BANK ACCOUNT MAINTAINED BY HIM WITH STATE BANK OF IND IA, KAMLA NEHRU NAGAR , GHAZIABAD BRANCH, DURING F.Y. 2009 - 10. SINCE THERE WAS NO COMPLIANCE TO THE STATUTORY NOTICES ISSUED BY THE AO, THE AO, INVOKING THE PROVISIONS OF SECTION 144 OF THE ACT, DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.17,57,500/ - . I FIND, ALTHOUGH THE ASSESSEE FILED CERTAIN ADDITIONAL EVIDENCES BEFORE THE CIT(A), THE LD. CIT(A) REJECTED THE ADMISSION OF SUCH ADDITIONAL EVIDENCE UNDER RULE 46A AND DECIDED THE ISSUE AGAINST THE ASSESSEE BY SUSTAINING THE ADDITION MADE BY THE AO. I T IS THE SUBMISSION OF THE LD. COUNSEL THAT THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT IS OUT OF SALE PROCEEDS OF CERTAIN PROPERTIES AND GIVEN AN OPPORTUNITY, THE ASSESSEE IS IN A POSITION TO EXPLAIN WITH EVIDENCE TO THE SATISFACTION OF THE LOWER AUTHORITIE S REGARDING THE SOURCE OF SUCH CASH DEPOSITS. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE AO AND ITA NO. 5902 /DEL/201 9 4 SUBSTANTIATE HIS CASE FAILING WHICH THE AO IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. 5 . IN THE RESULT, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATI STICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF THE HEARING ON 18.02.2021. SD/ - ( R. K. P ANDA ) ACCOUNTANT MEMBER DATED: 18 TH FEBRUARY, 2021. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI