Pramod Kumar, Ghaziabad V. ITO, Ward- 2(1), Ghaziabad

ITA 5911/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4468 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Keywords: Gift; Principle of natural justice; Reason to believe
• Section: 148

Judgement Text

1 ITA NO. 5911/DEL /2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SM C NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 5911/DEL/2018 ( A.Y 2009-10) PRAMOD KUMAR 11, PRAN GARHI, GHAZIABAD UTTAR PRADESH PAN: AKSPK5036E (APPELLANT) VS ITO WARD-2(1) GHAZIABAD UTTAR PRADESH (RESPONDENT) APPELLANT BY SH. DINESH KUMAR, ADV RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 30/5/2018 PASSED BY CIT(A)-20, ALIGARH, UTTAR PRADESH FOR A SSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. BECAUSE, LEARNED COMMISSIONER OF INCOME TAX ERRED, IN DISMISSING THE APPEAL EX-PARTY AS THE APPELLANT WAS PREVENTED WITH SUFFICIENT CAUSE FOR NON- COMPLIANCE ON THE LAST DATE OF HEARING HENCE ORDER IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE. 2. BECAUSE, LEARNED COMMISSIONER OF INCOME TAX ERRED IN APPRECIATE THAT ALL THE ADDITION ARE WITHOUT ANY MATERIAL /BASIS AGAINS T THE ASSESSEE BUT MERELY TO PUNISH ASSESSEE WHO COULD NOT PRESENT HIS CASE, BUT HE AGAIN SUSTAINED ALL THE ADDITION EX-PARTY WITHOUT CONSIDERING MERITS OF ADDITION WITH SOME DATE OF HEARING 25.02.2020 DATE OF PRONOUNCEMENT 26 .02.2020 2 ITA NO. 5911/DEL /2018 PURPOSEFUL ENQUIRY WITH PROPER OPPORTUNITY MORE SO WHEN ADDITION ARE HIGH PITCHED AND PUNITIVE. 3. BECAUSE, WITHOUT PREJUDICE TO ABOVE AND AS AN ALTE RNATIVE, LEARNED COMMISSIONER OF INCOME TAX ERRED IN NOT APPRECIATIN G THAT THE NOTICE ISSUED U/S 148 OF ACT IS BEYOND JURISDICTION BEING WITHOUT ANY 'REASON TO BELIEVE' AND ' SATISFACTION' OF AO OR OF THE SUPERIOR AUTHORITY AND IS ISSUED IN A MECHANICAL MANNER WITHOUT ANY APPLICATION OF MIND MERELY TO VE RIFY AIR INFORMATION AND TO CONDUCT ROVING ENQUIRIES OF CASH DEPOSIT WHICH I S BEYOND THE SCOPE OF PROVISION OF 147/148/151 HENCE SUBSEQUENT PROCEEDIN GS AND CONSEQUENT ORDER IS ILLEGAL. 4. BECAUSE, THE LEANED COMMISSIONER OF INCOME TAX (A) GROSSLY ERRED IN UPHOLDING THE ADDITION OF RS. 1128875/-/-, BEING IN VESTMENT OF PURCHASE OF PROPERTY, IN WHOLE DISREGARD OF THE FACT THAT THE A SSESSE HAS PURCHASED THESE PROPERTY FROM THE CASH OF HIS BUSINESS WITHDRAWAL/C ASH BALANCE/ GIFT RECEIVED FROM RELATIVES. THEREFORE, IN TERMS OF ABOVE GROUNDS, IT IS HEREBY PRAYED THAT THE NOTICE U/S 148 AND ASSESSMENT FRAMED MAY KINDLY BE QUASHED THOUGH ONLY AS AN ALTERNATIVE IT IS ALSO PRAYED THAT THE ADDITION MAD E BY ID. CIT(A) OF RS. 1128875/-/-MAY KINDLY BE QUASHED. 3. THE ASSESSEE IS EARNING THE COMMISSION INCOME D URING THE ASSESSMENT YEAR 2009-10. THE ASSESSEE PURCHASED IMMOVABLE PRO PERTY FOR RS. 42,20,000/- JOINTLY WITH THREE OTHER CO-OWNERS IN W HICH SHARE OF INVESTMENT MADE BY THE ASSESSEE WAS RS. 1,55,000/-. THE ASSES SING OFFICER MADE ADDITION AS THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICES ISSUED U/S 148,142(1), 144 OF THE INCOME TAX ACT, 1961. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE MATTER MAY BE REMA NDED BACK TO THE FILE 3 ITA NO. 5911/DEL /2018 OF THE CIT(A) AS THE APPEAL IS NOT DECIDED ON MERIT BY THE CIT(A) AND NO HEARING WAS GRANTED TO THE ASSESSEE. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE ORDER OF THE CIT( A) CAN BE SEEN THAT THE NOTICE WERE ISSUED TO THE ASSESSEE AND NONE APPEARED BEFO RE THE CIT(A) DESPITE GIVING SEVERAL OPPORTUNITY. THE ASSESSEE HAS NOT MADE OUT ANY CASE AS REGARDS TO THE NON APPEARANCE BEFORE THE CIT(A). THEREFORE, WE AR E IMPOSING COST OF RS. 2,000/- WHICH SHOULD BE PAID BY THE ASSESSEE TO THE PRIME MINISTERS RELIEF FUND. SINCE, THE APPEAL IS NOT DECIDED ON MERIT IT WILL BE APPROPRIATE TO REMAND BACK THIS APPEAL TO THE FILE OF THE CIT(A) FOR FRES H ADJUDICATION. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOL LOWING PRINCIPLES OF NATURAL JUSTICE. THUS APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSE 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH FEBR UARY, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 26/02/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 4 ITA NO. 5911/DEL /2018 ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 25.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 2 6 .02.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 6 .02.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 6 .02.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER