Naresh Kumar , Noida V. ITO, Ward- 2(3), Noida

ITA 6103/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1369 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 25-09-2018
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.6102 & 6103/DEL./2018 ASSESSMENT YEAR 2014-2015 SHRI NARESH KUMAR, VILLAGE-SULTANPUR, SECTOR- 127, DISTT. G.B. NAGAR, NOIDA. UTTAR PRADESH. PIN 201 301. PAN AVGPK5027Q VS., THE INCOME TAX OFFICER, WARD 2(3), NOIDA. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SANDEEP JAIN, C.A. FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. DATE OF HEARING : 28.08.2019 DATE OF PRONOUNCEMENT : 11.09.2019 ORDER BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF THE LD. CIT(A)-1, N OIDA, DATED 29.06.2018, FOR THE A.Y. 2014-2015. 2. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW. 3. IN ITA.NO.6102/DEL./2018 ASSESSEE CHALLENGED THE ADDITIONS ON QUANTUM CONTENDING THAT THE LD. CI T(A) 2 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. PASSED THE ORDER WITHOUT DISPOSING OF THE GROUNDS R AISED ON MERITS AND THAT SOME OF THE GROUNDS WERE NOT AGR EED FOR ADDITION. 4. BRIEFLY THE FACTS OF THE CASE ARE THAT RETURN O F INCOME WAS FILED ON 27.03.2015 DECLARING NET INCOME OF RS.2,31,940/-. INITIALLY THERE WAS NO COMPLIANCE TO THE STATUTORY NOTICE ISSUED BY THE A.O. LATER ON SOME COMPLIANCE HAVE BEEN MADE. THE A.O. NOTED THAT ASSE SSEE RUNS A P.G IN THE NAME AND STYLE OF PRADHAN P.G AT VILLAGE- SULTANPUR, SECTOR-128, NOIDA. THE STATEMENT OF SHRI VISHESH KUMAR TYAGI ON OATH WAS RECORDED IN WHICH H E HAS CONFIRMED THAT ASSESSEE IS OWNER OF AFORESAID P.G. AND EARNS RENTAL INCOME. THE A.O, THEREFORE, AFTER GIVI NG OPPORTUNITY TO THE ASSESSEE AND MATERIAL ON RECORD MADE ADDITION OF RS.9,81,750/- ON ACCOUNT OF UNDISCLOSED RENTAL INCOME. THE A.O. ALSO NOTED THAT ASSESSEE HAD SOLD TWO FLATS, ON WHICH, SHORT TERM CAPITAL GAIN WAS WORKED -OUT AND ADDITION WAS MADE ON ACCOUNT OF UNDISCLOSED CAPITAL GAIN OF RS.2,23,333/-. THE A.O. FURTHER NOTED THAT THERE AR E CASH DEPOSITS AND INVESTMENT WHICH REMAIN UNEXPLAINED. T HE 3 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. A.O. THEREFORE MADE ADDITION OF RS.7,10,000/- ON AC COUNT OF UNDISCLOSED CASH DEPOSIT. THE A.O. FURTHER OBSERVED THAT ASSESSEE HAD RECEIVED INTEREST OF RS.1,06,992/- IN HIS S.B. ACCOUNT WHICH HAVE NOT BEEN DISCLOSED IN THE INCOME TAX RETURN. THEREFORE, AFTER GIVING REBATE OF RS.10,000 /- UNDER SECTION 80TTA OF THE I.T. ACT, THE A.O. MADE ADDITI ON OF RS.96,992/- ON ACCOUNT OF UNDISCLOSED INCOME FROM O THER SOURCES. THE A.O. AFTER MAKING THESE FOUR ADDITIONS , COMPUTED THE TOTAL TAXABLE INCOME OF ASSESSEE AT RS.22,10,460/-. 5. THE ASSESSEE CHALLENGED AFORESAID FOUR ADDITION S BEFORE THE LD. CIT(A). THE LD. CIT(A) NOTED IN THE APPELLATE ORDER THAT COUNSEL FOR ASSESSEE AT THE VERY OUTSET SUBMITTED THAT ASSESSEE HAD INCOME FROM P.G. AT VILLAGE SULTA NPUR, SECTOR 128, NOIDA AND SAME WAS NOT DISCLOSED BY HIM IN HIS RETURN OF INCOME. HE HAS STATED THAT ASSESSEE HAS A LSO NOT DISCLOSED THE CAPITAL GAINS AMOUNTING TO RS.2,23,33 3/- IN THE RETURN OF INCOME AND SAME MAY BE TAKEN INTO CONSIDERATION TO COMPUTE THE TOTAL INCOME OF ASSESS EE. LD. CIT(A) ALSO NOTED THAT COUNSEL FOR ASSESSEE DURING THE 4 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. COURSE OF HEARING ALSO STATED THAT HE IS NOT PRESSI NG THE GROUND NOS.2 AND 4 AS TAKEN IN THE GROUNDS OF APPEA L. LD. CIT(A) NOTED THAT ON GROUND NO.2 ASSESSEE CHALLENGE D THE COMPUTATION OF TOTAL TAXABLE INCOME AT RS.22,10,460 /- AS AGAINST THE RETURNED INCOME AT RS.1,98,380/-. THE L D. CIT(A) ALSO NOTED THAT ON GROUND NO.4, ASSESSEE CHA LLENGED THE ADDITION OF RS.2,23,333/- ON ACCOUNT OF UNDISCL OSED CAPITAL GAINS. THE LD. CIT(A), THEREFORE, NOTED THA T SINCE ON ALL THE FOUR GROUNDS ADDITION HAS BEEN MADE AT RS.22,10,460/- WHICH IS NOT PRESSED BY COUNSEL FOR ASSESSEE, THEREFORE, THERE IS NO NEED TO CONSIDER O THER GROUNDS OF APPEAL. THE APPEAL OF ASSESSEE WAS ACCOR DINGLY DISMISSED AS NOT MAINTAINABLE. 6. AFTER CONSIDERING THE RIVAL SUBMISSION, I AM O F THE VIEW THAT THE PART MATTER REQUIRES RECONSIDERAT ION AT THE LEVEL OF THE LD. CIT(A). LEARNED COUNSEL FOR THE AS SESSEE SUBMITTED THAT COUNSEL FOR ASSESSEE ONLY AGREED FOR NOT PRESSING THE GROUND NO.4 AND 6 RAISED IN THE APPEAL . SAME FACT IS ALSO STATED IN THE WRITTEN SUBMISSIONS FILE D BEFORE THE 5 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. TRIBUNAL. HE HAS, THEREFORE, SUBMITTED THAT OTHER G ROUNDS SHOULD HAVE BEEN DECIDED ON MERITS BY LD. CIT(A). 7. THE LD. D.R. RELIED UPON ORDERS OF THE AUTHORIT IES BELOW. 8. IT IS WELL SETTLED LAW THAT NO APPEAL LIES ON A GREED ADDITIONS. I RELY UPON JUDGMENT OF HONBLE BOMBAY H IGH COURT IN THE CASE OF JIVATLAL PURTAPSHI VS COMMISSIONER OF INCOME-TAX [1967] 65 ITR 261 (BOM.), JUDGMENT OF HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. VA MADEVAN BHANU 330 ITR 559 (KERALA) AND JUDGMENT OF HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF BANTA SINGH KARTAR SINGH 125 ITR 239 (P&H). IN THIS CASE, THE L D. CIT(A) NOTED IN THE APPELLATE ORDER THAT COUNSEL FOR ASSES SEE AT THE VERY OUTSET, SUBMITTED THAT ASSESSEE HAD INCOME FRO M P.G. AT VILLAGE SULTANPUR, NOIDA WHICH HAVE NOT BEEN DIS CLOSED BY HIM IN HIS RETURN OF INCOME. HE HAS FURTHER STAT ED THAT ASSESSEE HAS ALSO NOT DISCLOSED CAPITAL GAINS AMOUN TING TO RS.2,23,333/-. IT WOULD, THEREFORE, SHOW THAT COUNS EL FOR ASSESSEE CORRECTLY AGREED FOR NOT PRESSING THESE GR OUNDS OF 6 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. APPEALS BEFORE THE LD. CIT(A). THE LD. CIT(A) NOTED IN THE IMPUGNED ORDER THAT COUNSEL FOR ASSESSEE DID NOT PR ESS GROUND NOS. 2 AND 4 BEFORE HIM. GROUND NO.2 IS GENE RAL IN NATURE WHICH IS RAISED WITH REGARD TO COMPUTATION O F INCOME AT RS.22,10,460/- AS AGAINST THE DECLARED INCOME AN D THAT ON GROUND NO.4, ADDITION OF RS.2,23,333/- HAVE BEEN CHALLENGED FOR CAPITAL GAINS. HOWEVER, THE FACT REM AINS THAT COUNSEL FOR ASSESSEE SUBMITTED BEFORE THE LD. CIT(A ) THAT ASSESSEE HAS INCOME FROM P.G. AT NOIDA WHICH IS NOT DISCLOSED IN THE RETURN OF INCOME. THIS WOULD STREN GTHEN THE FINDINGS OF THE AUTHORITIES BELOW THAT ASSESSEE HAS UNDISCLOSED RENTAL INCOME FROM RUNNING P.G. AT VILL AGE SULTANPUR, NOIDA. LEARNED COUNSEL FOR THE ASSESSEE ADMITTED THAT ASSESSEE DID NOT MOVE ANY APPLICATION FOR RECTIFICATION BEFORE THE LD. CIT(A) TO CHALLENGE TH E AFORESAID FINDINGS OF THE LD. CIT(A) THAT COUNSEL FOR ASSESSE E MADE SUCH A STATEMENT AND DID NOT PRESS GROUND NOS. 2 AN D 4 BEFORE THE LD. CIT(A). THE ASSESSEE DID NOT MADE AN Y ATTEMPT TO CONTRADICT THE FINDING OF FACT RECORDED BY THE LD. CIT(A) BEFORE FILING OF THE APPEAL BEFORE THE TRIBU NAL BY 7 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. MOVING ANY PETITION BEFORE THE LD. CIT(A). LEARNED COUNSEL FOR THE ASSESSEE IN THE WRITTEN SUBMISSIONS FILED B EFORE THE TRIBUNAL HAS CATEGORICALLY STATED THAT COUNSEL FOR ASSESSEE HAS AGREED FOR NOT PRESSING GROUND NOS.4 AND 6 IN T HE APPEAL. IT WOULD, THEREFORE, SUPPORT THE FINDINGS O F LD. CIT(A) THAT COUNSEL FOR ASSESSEE MADE THE STATEMENT FOR NOT PRESSING THESE GROUNDS OF APPEAL BEFORE THE LD. CIT (A). LEARNED COUNSEL FOR THE ASSESSEE DID NOT CONTRADICT THE STATEMENTS MADE BEFORE THE LD. CIT(A) THAT ASSESSEE HAS RECEIVED RENTAL INCOME FROM P.G. AT VILLAGE SULTANP UR, NOIDA. THESE FACTS CLEARLY SHOW THAT ASSESSEE HAS UNDISCLOSED RENTAL INCOME AND HAS ALSO UNDISCLOSED CAPITAL GAINS. THEREFORE, THESE GROUNDS HAVE BEEN RIGHTLY D ISMISSED BY THE LD. CIT(A). NO INTERFERENCE IS REQUIRED IN T HE MATTER. THE COUNSEL FOR ASSESSEE HAS AGREED THAT COUNSEL FO R ASSESSEE DID NOT PRESS GROUND NO.6 BEFORE THE LD. C IT(A) WITH REGARD TO EARNING OF UNDISCLOSED INTEREST INCO ME IN A SUM OF RS.96,992/-, THEREFORE, THIS GROUND IS ALSO DISMISSED. 8 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. 9. THE ONLY GROUND LEFT FOR CONSIDERATION IS UNDISCLOSED CASH DEPOSIT OF RS.7,10,000/-. IT APPEA RS FROM THE IMPUGNED ORDER THAT LD. CIT(A) CONSIDERING GENE RAL GROUND OF COMPUTING TAXABLE INCOME AT RS.22,10,460/ - DID NOT DECIDE GROUND NO.5 OF THE APPEAL OF ASSESSEE CHALLENGING THE ADDITION OF RS.7,10,000/- ON ACCOUN T OF UNDISCLOSED CASH DEPOSITS. THIS GROUND, THEREFORE, REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). 10. CONSIDERING THE ABOVE DISCUSSION, I CONFIRM TH E ORDER OF THE LD. CIT(A) IN DISMISSING THE APPEAL OF ASSESSEE ON THE REMAINING GROUNDS EXCEPT ON GROUND NO.5 CHALLENGING THE ADDITION OF RS.7,10,000/- ON ACCOUN T OF UNDISCLOSED CASH DEPOSIT. IN THIS VIEW OF THE MATTE R, I SET ASIDE THE ORDER OF THE LD. CIT(A) QUA GROUND NO.5 O NLY AND RESTORE THIS GROUND OF UNDISCLOSED CASH DEPOSIT IN SUM OF RS.7,10,000/- TO THE FILE OF LD. CIT(A) WITH A DIRE CTION TO RE- DECIDE THIS GROUND AS PER LAW, BY GIVING REASONABLE , SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 9 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. 11. IN THE RESULT, ITA.NO.6102/DEL./2018 OF THE APPEAL OF ASSESSEE PARTLY ALLOWED FOR STATISTICAL P URPOSES TO THE ABOVE EXTENT ONLY. 12. IN ITA.NO.6103/DEL./2018 ASSESSEE CHALLENGED THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT. THE LD. CIT(A) DISMISSED THE APPEAL OF ASSESSEE ON ACCOUNT OF PENALTY LEVIED BY THE A.O. ON THE INCOME TO THE EXTENT OF RS.20,12,075/- I.E., ON THE ABOVE FOUR ADDITIONS. I N THE PENALTY ORDER, THE LD. CIT(A) DID NOT DISCUSS THE I SSUE IN DETAIL ON MERITS. FURTHER, WHEN ON ONE GROUND WHICH IS NOT DECIDED BY THE LD. CIT(A) ON MERIT, I HAVE ALLOWED APPEAL OF ASSESSEE PARTLY FOR STATISTICAL PURPOSES, THEREFORE , CONSIDERING THE PENALTY ORDER TO BE NON-SPEAKING ON EACH AND EVERY ADDITION, I AM OF THE VIEW THAT THE ENTIR E APPEAL REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T(A). IN VIEW OF THE ABOVE DISCUSSION, I SET ASIDE THE PENAL TY ORDER AND RESTORE THE APPEAL OF ASSESSEE TO THE FILE OF L D. CIT(A) WITH A DIRECTION TO RE-DECIDE THE PENALTY MATTER ST RICTLY ON MERITS AS PER LAW, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. 13. IN THE RESULT, ITA.NO.6103/DEL./2018 OF THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. 14. TO SUM-UP, ITA.NO.6102/DEL./2018 OF THE APPEAL OF ASSESSEE PARTLY ALLOWED FOR STATISTICAL PURPOSES AND ITA.NO.6103/DEL./2018 OF THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 11 TH SEPTEMBER, 2019 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH 6. GUARD FILE //BY ORDER// ASST. REGISTRAR : ITAT : DELHI BENCHES : DELHI. 11 ITA.NOS.6102 & 6103/DEL./2018 SHRI NARESH KUMAR, NOIDA. DATE OF DICTATION 26.08.2019 DATE ON WHICH THE TYPED DRAFT ORDER IS PLACED BEFOR E THE DICTATION MEMBER 09.09.2019 DATE ON WHICH THE APPROVAL DRAFT COMES TO THE SR. P S 11.09.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATION MEMBER FOR PRONOUNCEMENT 11.09.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S. 11.09.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 11.09.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11. 09.2019 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.