Sh. Ravinder Kumar Sharma, New Delhi V. ITO, New Delhi

ITA 5985/DEL/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7136 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 07-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 04-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-5985/DEL/2015 (ASSESSMENT YEAR-2011-12) RAVINDER KUMAR SHARMA, C/O-M/S.RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-I, NEW DELHI-110049. PAN-ANHPS3596H ( APPELLANT) VS ITO, WARD-46(3), NEW DELHI. (RESPONDENT) ASSESSEE BY SH. SOMIL AGARWAL, ADV. & SH. TARUN KUMAR, ADV. REVENUE BY SH.F.R.MEENA, SR.DR DATE OF HEARING 07.11.2016 DATE OF PRONOUNCEMENT 06 . 0 1.201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 11/08/2015 OF CIT(A)-21, NEW DELHI PERTAINING TO 2011 12 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NOS. 2 AND 3 WHICH READ AS UNDER:- 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD.CIT(A) IN CONFIRMING THE ACTION OF LD.AO IN MAKING AGGREGATE ADDITION OF RS.29,43,000/- U/S 68 ON ACCOUNT OF CASH DEPOSITS IS BEYOND JURISDICTION, BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, IMPUGNED ADDITIONS AND IMPUGNED ORDER ARE BAD IN LAW, ILLEGAL, UNJUSTI FIED, BARRED BY LIMITATION, CONTRARY TO FACTS & LAW AND BASED UPON RECORDING OF INCORRECT FACTS AND FINDING, WITHOUT GIVING ADEQUAT E OPPORTUNITY OF HEARING, IN VIOLATION OF PRINCIPLES OF NATURAL JUST ICE AND THE SAME DESERVES TO BE QUASHED. 2. THE LD. AR AT THE TIME OF HEARING, INVITING ATTE NTION TO THE IMPUGNED ORDER, SUBMITTED THAT THE WITHOUT PREJUDICE, ALTERNATE PRA YER TAKEN BY THE ASSESSEE BEFORE THE CIT(A) HAS NOT BEEN ADJUDICATED UPON. ACCORDINGLY, IT WAS HIS LIMITED PRAYER THAT THE MATTER MAY BE REMANDED TO THE ASSESSING OFFICER TO ADDRESS THE ISSUES. IN SUPPORT OF THE SAID PRAYER, ATTENTION WAS INVITED TO PAGES 9 A ND 10 OF THE IMPUGNED ORDER WHEREIN PAGE 2 OF 4 ITA NO.5985/DEL/2015 RAVINDER KUMAR SHARMA VS ITO THE SPECIFIC SUBMISSIONS OF THE ASSESSEE HAVE BEEN RECORDED. THE SAME ARE REPRODUCED HEREUNDER:- IT IS FURTHER SUBMITTED THAT THOUGH NO ADDITION CA N BE MADE FOR THE CASH FOUND DEPOSITED IN THE BANK ACCOUNT, AS ALL DEPOSIT S AND WITHDRAWALS TRANSACTIONS APPEARING THE IN THE BANK ACCOUNT OF T HE ASSESSEE ARE FOR PURCHASES AND SALES OR ARE OUT OF CASH WITHDRAWN. EVEN IF FOR THE ARGUMENT SAKE, IF THE BUSINESS CARRIED OUT BY THE ASSESSEE I S NOT BELIEVED, THOUGH VEHEMENTLY DENIED, AND BY ANY STRETCH OF ANY IMAGI NATION IF ANY ADDITION COULD HAVE BEEN MADE THAT CANNOT BE MORE T HAN THE PEAK CASH CREDIT WORKED OUT I.E. OF RS.1,62,042/- WORKING OF WHICH IS ENCLOSED IN THE PAPER BOOK AT PB 45. (EMPHASIS PROVIDED) 2.1. THE SAID PRAYER IT WAS SUBMITTED HAD BEEN SUPP ORTED BY VARIOUS DECISIONS NAMELY ADDL. CIT VS CHETAN DAS (1975) 99 ITR 46 (DEL); ADD L. CIT VS DHARAMDAS AGARWAL (1983) 144 ITR 143 (MP); ADDL. CIT VS MOHAN ENGINEERING CO. )1985_ 151 ITR 571 (PAT.); CIT VS NEEMAR RAM BADLU RAM (1980) 122 ITR 68 (ALL.); SURENDRA M.KHANDAR VS ASSTT. CIT (2001) 76 ITD 121 (MUM.); E SSEM INTRA PORT SERVICES P.LTD. VS ASSTT. CIT (2000) 72 ITD 228 (HYD.); AND KRONOR INV ESTMENTS LIMITED VS DCIT (ITAT MUMBAI). 2.2. THE NECESSARY FACTS FOR DECIDING THE ISSUE, I T WAS SUBMITTED HAD BEEN PROVIDED TO THE CIT(A) AND ARE AVAILABLE AT PAPER BOOK PAGES 41 TO 56 FILED BEFORE THE SAID AUTHORITY. COPY OF THE VERY SAME PAPER BOOK, IT WA S SUBMITTED HAS BEEN FILED BEFORE THE ITAT ALSO. IT WAS SUBMITTED THAT SINCE IT MAY BE RE QUIRED TO BE LOOKED INTO AND CONSIDERED BY THE ASSESSING OFFICER ACCORDINGLY, TH E REQUEST HAS BEEN MADE THAT IT MAY BE REMANDED TO THE ASSESSING OFFICER. 3. THE LD. SR.DR, MR.F.R.MEENA APPEARING ON BEHALF OF THE REVENUE, SUBMITTED THAT ADMITTEDLY THE ALTERNATE PRAYER OF THE ASSESSE E THOUGH RECORDED IN THE IMPUGNED ORDER, HAS NOT BEEN CONSIDERED BY THE CIT(A) WHILE ADJUDICATION. ACCORDINGLY, IT WAS HIS SUBMISSION THAT HE HAS NO OBJECTION IF THE MATTER I S REMANDED TO THE CIT(A) SO AS TO CONSIDER THE PAPER BOOK AT PAGES 41 TO 56 PLACED BE FORE HIM. HOWEVER, REMAND TO THE PAGE 3 OF 4 ITA NO.5985/DEL/2015 RAVINDER KUMAR SHARMA VS ITO ASSESSING OFFICER WAS OBJECTED TO. IT WAS HIS SUBMI SSION THAT IF NEED BE THE LAW PERMITS THE CIT(A) TO OBTAIN A REMAND REPORT. THUS, THE PR AYER THAT THE MATTER MAY BE REMANDED IS NOT OBJECTED TO BUT THE REMAND SHOULD B E MADE, IT WAS SUBMITTED TO THE CIT(A) AS IT IS THAT AUTHORITY WHICH HAS NOT CONSID ERED THE GROUND. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSE E IN THE YEAR UNDER CONSIDERATION DECLARED AN INCOME OF RS.1,45,937/- BY WAY OF FILIN G ITS RETURN, WHICH WAS PROCESSED UNDER SECTION 143(1). AFTER ISSUANCE OF NOTICE UNDE R SECTION 143 (2) AND ISSUANCE OF QUESTIONNAIRE ETC., THE ASSESSEE WAS REQUIRED TO EX PLAIN THE DEPOSITS IN ITS BANK ACCOUNTS AS THE SAID RETURN WAS SELECTED FOR SCRUTI NY ON THE BASIS OF AIR INFORMATION. THE ASSESSEE WAS STATED TO BE CARRYING ON THE BUSIN ESS OF TRADING OF RUBBER PRODUCTS DURING THE YEAR AND THE BUSINESS WAS STATED TO HAVE BEEN CLOSED BY DECEMBER 2010. IN VIEW OF THE FACT THAT THE EXPLANATION WAS NOT ACCEP TED IN REGARD TO THE DEPOSITS, THE ADDITION WAS MADE BY THE ASSESSING OFFICER. THE ISS UE WAS CARRIED IN APPEAL BEFORE THE CIT(A). A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE AFORESAID SUBMISSION WAS MADE BEFORE THE CIT(A) WHICH ADMITTEDLY HAS NOT BEE N ADJUDICATED UPON. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, CONSIDERING TH E SUBMISSIONS OF THE PARTIES THE ISSUE IS RESTORED BACK TO THE FILE OF THESE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSES SEE A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06 TH OF JANUARY, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* PAGE 4 OF 4 ITA NO.5985/DEL/2015 RAVINDER KUMAR SHARMA VS ITO COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR ITAT NEW DELHI