JAG ROSHAN S/o RAM KUMAR, FATEHABAD V. ITO, WARD- 5, HISAR

ITA 6010/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7906 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6010/DEL/2018 ASSESSMENT YEAR: 2010-11 JAG ROSHAN, VS. ITO, WARD-5, C/O PREM RAJPAL, ADV. HISAR NEAR ELITE CINEMA, RAILWAY ROAD, HISAR, HARYANA (PAN: ASKPR2556C) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. V. RAJA KUMAR, ADV. & SH. PULAK RAJ PAL, ADVOCATE REVENUE BY : SH. SL ANURAGI, SR. DR. ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 29.6.2018 OF THE LD. CIT(A)-2, GURGAON PERTAINING TO ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED AS MANY AS FI VE GROUNDS, BUT HE HAS ARGUED ONLY GROUND NO. (IV) WHICH READ AS UN DER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING FOLLOWING AC TION OF THE ASSESSING OFFICER IN:- (IV) MAKING AN ADDITION OF RS. 3,80,000/- ON ACCOUN T OF AGRICULTURE INCOME TREATED AS INCOME FROM OTHER SOURCES. 2 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED ADDITION MADE AMOUNTING TO RS. 3,80,000/- ON ACCOUN T OF AGRICULTURE INCOME TREATED AS INCOME FROM OTHER SOURCES IS IL LEGAL IN THE EYES OF LAW. HE FURTHER SUBMITTED THAT NO SECTION HAS BE EN MENTIONED IN THE ORDER UNDER WHICH SUCH ADDITION HAS BEEN MADE. HOWEVER, THE PROOF REGARDING AGRICULTURE INCOME HAVE ALREADY BEE N SUBMITTED BEFORE THE AO, DESPITE THAT ADDITION WAS MADE AND CONFIRMED ILLEGALLY IN THE EYES OF LAW. HE FURTHER SUBMITTED THAT LD. CIT(A) HAS AFFIRMED THE ACTION OF THE AO ONLY ON THE BASIS THA T ASSESSEE DID NOT PRODUCE THE AFFIDAVIT BEFORE THE AO DURING THE ASSE SSMENT PROCEEDINGS, WHICH IS NOT TENABLE. IN VIEW OF ABOV E, HE REQUESTED TO SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE AO FOR FRESH CONSIDERATION AND AN OPPORTUNITY OF BEING HEARD TO BE GIVEN TO THE ASSESSEE WITH THE LIBERTY TO FILE OTHER DOCUMENTS / EVIDENCES TO SUBSTANTIATE ITS CASE. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. I FIND THAT LD. 3 CIT(A) AT PAGE NO. 3-4 OF THE IMPUGNED ORDER VIDE P ARA NO. 6 HAS OBSERVED AS UNDER:- IT IS SEEN THAT THE APPELLANT HAS PRODUCED AN AFFID AVIT FROM SHRI SHIVNARAIN, TO EXPLAIN THAT THE AGRICULTU RAL INCOME SHOWN WAS TRUE AND CORRECT. HOWEVER, THE APPELLANT DID NOT PRODUCE THIS AFFIDAVIT BEFORE THE ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS. THEREFORE, IT CANNOT BE ACCEPTED AT THIS JUNCTURE. IT WAS ONUS OF THE APPELLANT TO PROVE THE SOURCE OF THE CA SH DEPOSIT BEFORE THE ASSESSING OFFICER, WHICH HE HAS FAILED TO DO. THEREFORE, IN MY OPINION THE ADDITION MADE BY THE AO IS JUSTIFIED. THE APPEAL THEREFORE, IS DISMISSE D. 5.1 AFTER PERUSING THE AFORESAID FINDINGS OF THE LD . CIT(A), THERE IS NO DOUBT THAT DURING THE APPELLATE PROCEEDINGS THE ASSESSEE HAS PRODUCED AN AFFIDAVIT FROM SHRI SHIVNARAIN, TO EXPL AIN THAT THE AGRICULTURAL INCOME SHOWN WAS TRUE AND CORRECT, HOW EVER, THE ASSESSEE DID NOT PRODUCE THIS AFFIDAVIT BEFORE THE AO. HENCE, LD. CIT(A) DID NOT ACCEPT THIS AFFIDAVIT AND WENT AGAIN ST THE ASSESSEE. BUT I FIND THAT LD. CIT(A) DID NOT DEAL THE ISSUE ON MERIT AND PASSED A NON-SPEAKING ORDER, WHICH IN MY OPINION, IS NO T IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE AND IT IS AN ERRONEOUS APPROACH. AFTER READING SECTION 250(6) OF THE ACT, I AM ALSO OF THE CONSIDERED VIEW THAT ASSESSEES CASE SHOULD BE DECIDED ON MERI TS, WHICH THE LD. 4 CIT(A) HAS NOT DONE. HOWEVER, IT IS A SETTLED LAW T HAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE SPEAKING ONE. IN T HIS REGARD, I DRAW SUPPORT FROM HONBLE APEX COURT IN THE CASE M/S SA HARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 WHE REIN IT HAS BEEN HELD THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE C ONSISTENT WITH THE RULES OF NATURAL JUSTICE. 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND IN THE INTEREST OF JUSTICE, I REMIT BACK THE ISSUES IN DISPUTE TO THE FILES OF ASSESSING OFFICER TO DECIDE THE SAME AFRESH, AFTER CONSIDERING THE AFFIDAVIT OF SH. SHIVNARAIN AND VERIFY THE VERACITY THEREOF AND THEN DECIDE THE ISSUES IN DISPUTE AFRESH AND GIVE ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 23-04-2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED :23-04-2019 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.