Sri Ankur Jain, Delhi V. ITO, New Delhi

ITA 6091/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5116 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 29-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: V RAJ KUMAR
• Section: 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6091/DEL/2016 ASSESSMENT YEAR: 2010-11 SH. ANKUR JAIN VS. ITO, WARD-35(5), 2698/9, LOTHIAN ROAD, NEW DELHI KASHMERE GATE, DELHI 110 006 (PAN: AHVPJ3149F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K. SAMPATH, ADV. & SH. V. RAJKUMAR, ADV. REVENUE BY : SH. T. VASANTHAN, SR. DR ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 30.9.2016 OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS)- 12, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2010-11. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE FOLLOWING ACTIONS OF THE AO: 1. INITIATING PROCEEDINGS U/S. 147/148 OF THE INCOME TAX ACT, 1961 WITHOUT THERE BEING ANY VALID REASON FOR FORMING A BELIEF THAT INCOME HAD ESCAPED ASSESSMENT; 2. PASSING AN EXPARTE ORDER U/S. 144/148 OF THE ACT EVEN THOUGH THE APPELLANT HAD COMPLIED WITH ALL THE NOTICES SERVED; 2 3. MAKING ADDITION TO THE EXTENT OF RS. 20,02,697/- ON ACCOUNT OF CASH DEPOSITED IN BANK BY INVOKING THE PROVISION OF SECTION 68 OF THE ACT. ALL THE ABOVE ACTIONS BEING MOST ARBITRARY, ERRONEOUS, UNLAWFUL AND UNJUST MUST BE QUASHED WITH DIRECTION FOR RELIEF. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE, HA S STATED THAT AO HAS PASSED THE EXPARTE ORDER DATED NIL U/S. 144/ 148 OF THE INCOME TAX ACT, 1961 EVEN THOUGH THE ASSESSEE HAD C OMPLIED WITH ALL THE NOTICES SERVED. HE FURTHER STATED THAT LD. CIT(A) HAS NOT PROPERLY ADJUDICATED THE GROUND NO. 2 IN THE IMPUG NED ORDER FILED WITH THE FORM NO. 35 (WHICH IS GROUND NO. 3 IN THIS PRESENT APPEAL). HE FILED A PAPER BOOK CONTAINING PAGES 1 TO 15 HAV ING THE COPY OF (DRAFT) AFFIDAVIT; COPY OF REVISED COMPUTATION OF I NCOME; COPY OF COMPUTATION OF INCOME U/S. 44AF; COPY OF QUESTIONNA IRE; COPY OF CASH FLOW STATEMENT; 1 ST WRITTEN SUBMISSIONS FILED BEFORE LD. CIT(A) DATED 21.5.2016; 2 ND WRITTEN SUBMISSIONS FILED BEFORE CIT(A) DATED 11.7.2016; 3 RD WRITTEN SUBMISSIONS FILED BEFORE CIT(A) DATED 3.8.2016; 4 TH WRITTEN SUBMISSIONS FILED BEFORE CIT(A) DATED 4.8. 2016 AND 5 TH WRITTEN SUBMISSIONS FILED BEFORE CIT(A) ALONGWITH COPY OF ITR. HE ALSO CERTIFIED THAT THE ABOVE DOCUMENTS / E VIDENCES WERE FILED BEFORE THE LD. CIT(A), BUT HE HAS NOT CONSIDE RED THE SAME. THEREFORE, HE REQUESTED THAT THE GROUND NO. 2 RAIS ED BEFORE THE LD. 3 CIT(A) MAY BE SET ASIDE TO THE FILE OF THE LD. CI T(A) TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, LD. COUNSEL OF THE ASSESSEE ON BEHALF OF THE ASSESSEE UNDERTAKES TO APPEAR BEFORE THE LD. CIT(A) AND FULLY COOPERATE WITH THE LD. CIT(A) DURING THE PROCEEDINGS, IF THE BENCH SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) FOR FRESH CONSIDERATION. 5. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ORDERS OF THE AUTHORITIES BELOW. I FIND THAT AO HAS PASSED THE EXPARTE ORDER DATED NIL U/S. 144/148 OF THE INCOME TAX ACT, 1961 EVEN THOUGH THE ASSESSEE HAD COMPLIED WIT H ALL THE NOTICES SERVED. I FURTHER FIND COGENCY IN THE CONTENTION O F THE LD. COUNSEL OF THE ASSESSEE THAT LD. CIT(A) HAS NOT PROPERLY ADJUD ICATED THE GROUND NO. 2 IN THE IMPUGNED ORDER FILED WITH THE FORM NO . 35 (WHICH IS GROUND NO. 3 IN THIS PRESENT APPEAL) AND NOT CONSID ERED THE DOCUMENTS FILED BEFORE HIM WHICH IS ALSO FILED BEFO RE ME IN THE SHAPE OF PAPER BOOK CONTAINING PAGES 1 TO 15 HAVING THE C OPY OF (DRAFT) AFFIDAVIT; COPY OF REVISED COMPUTATION OF INCOME; C OPY OF COMPUTATION OF INCOME U/S. 44AF; COPY OF QUESTIONNA IRE; COPY OF CASH FLOW STATEMENT; 1 ST WRITTEN SUBMISSIONS FILED BEFORE LD. CIT(A) DATED 21.5.2016; 2 ND WRITTEN SUBMISSIONS FILED BEFORE CIT(A) DATED 11.7.2016; 3 RD WRITTEN SUBMISSIONS FILED BEFORE CIT(A) DATED 4 3.8.2016; 4 TH WRITTEN SUBMISSIONS FILED BEFORE CIT(A) DATED 4.8. 2016 AND 5 TH WRITTEN SUBMISSIONS FILED BEFORE CIT(A) ALONGWITH COPY OF ITR. THEREFORE, IN THE INTEREST OF JUSTICE, THE GR OUND NO. 2 RAISED BEFORE THE LD. CIT(A) (WHICH IS GROUND NO. 3 BEFOR E THE TRIBUNAL) IS SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE, AFTER APPRECIATING THE DOCUMENTARY EVIDEN CES, AS AFORESAID. THE ASSESSEE IS ALSO DIRECTED TO FULLY C OOPERATE WITH THE LD. CIT(A) AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND ALSO PRODUCE ALL THE DOCUMENTARY EVIDENCES BEFORE HIM TO SUBSTANTIATE ITS CASE. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 08-08-2017. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 08-08-2017 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.