Rajendra Aggarwal, New Delhi V. DCIT, New Delhi

ITA 5982/DEL/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7384 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 09-06-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD KR BINDAL
• Assessee Lawyers: MRS NANDITA KANCHAN
• Keywords: Opportunity of being heard
• Section: 153A; 12; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.O.P.KANT, ACCOUNTANT MEMBER I.T.A .NO.-598 2/DEL/2012 (ASSESSMENT YEAR-20 04-05) RAJENDRA AGGARWAL, 23/5, KALA BHAWAN, SHAKTI NAGAR, NEW DELHI-110007. PAN-ADQPA4147F (APPELLANT) VS DCIT, CENTRAL CIRCLE-5, NEW DELHI (RESPONDENT) APPELLANT BY MRS. NANDITA KANCHAN, CIT DR RESPONDENT BY SH. VINOD KR. BINDAL, CA ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 29.10.2012 OF CIT(A)-XXXI, DELHI PERTAI NING TO 2004-05 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 11,61,250/- (EQUIVALENT TO USD 25,000/-) LACS I GNORING THE FACT THAT SOURCE OF THE SAME WAS DULY REFLECTED IN THE BANK A CCOUNT AND DOCUMENTARY EVIDENCES PLACED ON RECORD. THUS, THE ADDITION MUST BE DELETED. 2. THE ADDITIONS IN THE IMPUGNED ASSESSMENT ORDER P ASSED U/S 153A ARE BAD IN LAW AND ON FACTS BECAUSE A) THE ADDITIONS WERE NOT BASED ON ANY BOOKS O F ACCOUNT OR OTHER MATERIAL NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT B UT WHICH COULD ALLEGED TO HAVE BEEN FOUND IN THE COURSE OF SEARCH OR AN UNDIS CLOSED INCOME OR PROPERTY DISCOVERED THEREIN B) AS THE ASSESSMENT PROCEEDINGS WERE NOT ABAT ED BUT WERE ALREADY COMPLETED. THUS ALL THE ADDITIONS SO MADE IN THE ASSESSMENT OR DER SHOULD BE DELETED FOLLOWING THE SPECIAL BENCH DECISION DATED 6/7/12 I N THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. IN APPEALS NO. ITA/5018-5022/ M/10. 3. THE APPELLANT CRAVES THE LEAVE TO ADD, SUBSTITUT E, MODIFY, DELETE OR AMEND ALL OR ANY GROUND OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. DATE OF HEARING 09.06.2016 DATE OF PRONOUNCEMENT 17 .0 8 .2016 I.T.A .NO.-5982/DEL/2012 PAGE 2 OF 3 2. AT THE TIME OF HEARING, LD. AR INVITING ATTENTION TO GROUND NO. 2, RELYING UPON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF CIT VS KABUL CHAWLA 380 ITR 573 (DELHI) SUBMITTED THAT THE ASSESSMENT FOR 2004-05 AY WAS N OT ABATED (AND DEEMED TO BE COMPLETED U/S 143(1)) AS ON THE DATE OF THE S EARCH ACCORDINGLY THE ADDITION IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH THE ADDITION COULD NOT HAVE BEEN MADE. THE FOLLOWING CHART OF DATES WAS RELIED UPON IN SUPPORT OF ITS PRAYER:- PARTICULARS DATE ORIGINAL RETURN FILED U/S 139 23.08.04 TIME LIMIT PRESCRIBED FOR SERVICE OF NOTICE U/S 143 (2) 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN WAS FILED 31/08/05 TIME LIMIT PRESCRIBED U/S 153 FOR COMPLETION OF ASS ESSMENT 21 MONTHS FROM THE END OF THE ASSESSMENT YEAR CONCE RNED 31/12/06 DATE OF SEARCH 31/07/08 3. THE LD. CIT.DR SUBMITTED THAT THE FACTS RELATABL E TO THIS ARE NOT COMING OUT FROM THE ORDERS AND FOLLOWING THE ORDERS IN THE RAJDARBA R GROUP OF CASES WHEREIN THE SEARCH TOOK PLACE, THE ISSUE MAY BE RESTORED TO THE FILE O F CIT(A) FOLLOWING THE PRECEDENT. THE LD. AR CONSIDERING THE REQUEST OF THE DEPARTMENT AN D THE MATERIAL AVAILABLE ON RECORD FAIRLY SUBMITTED THAT HE WOULD HAVE NO OBJECTION IF THE ISSUE IS RESTORED TO THE FILE OF THE CIT(A) TO DECIDE THE JURISDICTIONAL ISSUE FIRST. A LTHOUGH IT WAS HIS ARGUMENT THAT EVEN ON MERIT THE ADDITION IS NOT MAINTAINABLE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE RECORD. WE FIND THAT ADMITTEDLY THE RELEVANT FACTS IN ORDER TO DECIDE THE JURISDICTIONAL ISSUE ARE NOT AVAILABLE ON RECORD. ACCORDINGLY IN THE LIGHT OF T HE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH AND THE MATERIAL AVAILABLE ON RECORD THE IMPU GNED ORDER IS SET ASIDE AND THE CIT(A) IS DIRECTED TO FIRST DECIDE THE JURISDICTIONAL ISSU E AND THEN PROCEED TO ADDRESS THE ISSUES ON MERITS IF NEED BE. NEEDLESS TO SAY THAT THE CIT(A) SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. I.T.A .NO.-5982/DEL/2012 PAGE 3 OF 3 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 17 TH AUGUST 2016. SD/- SD/- (O. P.KANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI