Sh. Nijat Khan, Baghpat V. ITO, Uttar Pradesh

ITA 6164/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4257 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 01-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALKA GAUTAM
• Assessee Lawyers: V K GOEL
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 6164/DEL/2016 AY: 2009-10 NIJAT KHAN, VS INCOME TAX OFFICER, S/O SHRI SAFAT KHAN, BARAUT, GAYATRI PURAM, DISTT. BAGHPAT, WARD NO.3, UTTAR PRADESH. DELHI ROAD, BAGHPAT. (PAN: AVDPK4886A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.K. GOEL, ADV. RESPONDENT BY: MS ALKA GAUTAM, SR . DR DATE OF HEARING: 03.01.2018 DATE OF PRONOUNCEMENT: 05.01.2018 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX( A), MEERUT DATED 08.08.2016 WHEREIN THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 HAS BEEN DISMISSED BY THE LD. FIRST AP PELLATE AUTHORITY. 2. THE FOLLOWING GROUNDS HAVE BEEN PREFERRED BY THE ASSESSEE:- 1. THAT THE LD. APPEAL AUTHORITY WAS NOT JUSTIFIED TO DECIDE THE APPEAL ACCORDING TO ORIGINAL 1 ST APPEAL FILED BY THE APPELLANT. ITA NO. 6164/DEL/2016 ASSESSMENT YEAR 2009-10 2 2. THAT THE LD. APPEAL AUTHORITY WAS NOT JUSTIFIED TO DECIDE THE 1 ST APPEAL ACCORDING TO TRIBUNAL ITAT REMAND ORDER. 3. THAT THE LD. APPEAL AUTHORITY WAS NOT JUSTIFIED TO CONFIRM UNEXPLAINED CASH DEPOSIT U/S 69 RS. 2,25,000/- ACCORDING TO GROUND NO. 1. 4. THAT THE LD. APPEAL AUTHORITY WAS NOT JUSTIFIED TO CONFIRM UNEXPLAINED CASH DEPOSIT U/. 69 RS. 3,50,000/- ACCORDING TO GROUND NO. 2. 5. THAT, THE APPELLANT IS EMPOWERED TO ADD OR AMEND OR DELETE ANY GROUND OF THE APPEAL AT THE TIM E OF DATE, FIXED FOR HEARING. 6. THAT, THE ORDER, SO PASSED, BEING IN CONTRAVENTION TO THE PROVISION OF THE ACT IS AGAINS T THE FACT AND LAW, OF THE CASE, DESERVES TO BE ANNULLED, APPEAL MAY BE ALLOWED, OR AS YOUR HONOUR DEEMS FIT. 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND HE FILED HIS RETURN DECLARING AN INCOME OF RS. 1,54,049/-. THE CASE WAS SUBSEQUENTLY PICKED UP FOR SCRUTINY AN D THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS. 7,49,0 99/- AFTER MAKING AN ADDITION OF RS. 5,75,000/- AS UNEXPLAINED CASH DEPOSIT U/S 69 OF THE INCOME TAX ACT, 1961 (HEREINA FTER REFERRED TO AS 'THE ACT'). 2.2 ON APPEAL, THE LD. CIT(A) CONFIRMED THE ADDITIO N AND THEREAFTER THE ASSESSEE APPROACHED THE ITAT. THE I TAT DELHI BENCH VIDE ORDER DATED 9.7.2015 RESTORED THE FILE T O THE LD. CIT(A) ITA NO. 6164/DEL/2016 ASSESSMENT YEAR 2009-10 3 WITH THE DIRECTION TO CONSIDER THE ISSUE AFRESH AND PASS A SPEAKING ORDER. THE LD. CIT(A) REQUIRED THE ASSESS ING OFFICER TO FILE A REMAND REPORT. IN THE REMAND PROCEEDINGS, T HE ASSESSEE FAILED TO COMPLY WITH THE INQUIRIES MADE BY THE ASS ESSING OFFICER AND, THEREFORE, THE ASSESSING OFFICER HAD NOTHING F URTHER TO ADD IN THE CASE AND THE LD. CIT(A) ALSO CONFIRMED THE A DDITIONS AS MADE IN THE ORIGINAL ASSESSMENT ON THE GROUND THAT THE ASSESSEE DID NOT BRING ANY FRESH EVIDENCE TO ESTABLISH THE S OURCE OF CREDIT ENTRIES APPEARING IN THE BANK. NOW, THE ASSESSEE H AS AGAIN APPROACHED THE ITAT AND HAS CHALLENGED THE ACTION O F THE LD. CIT(A) IN CONFIRMING THE ADDITIONS. 3. AT THE OUTSET, LD. AR SUBMITTED THAT PROPER OPPO RTUNITY HAD NOT BEEN GIVEN TO THE ASSESSEE BY THE LOWER AUTHORI TIES IN THIS CASE AND SUBMITTED THAT ALL THE NECESSARY EVIDENCES WERE WITH THE ASSESSEE AND WILL BE FURNISHED IF THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO PRESENT THE SAME. LD. AR PRAYED THA T THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICE R. 4. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY OPPOS ED THE REQUEST OF THE LD. AR AND SUBMITTED THAT THE ASSESS EE WAS A HABITUAL DEFAULTER WHO HAD NOT RESPONDED TO ANY OF THE NOTICES SENT EITHER BY THE ASSESSING OFFICER OR THE LEARNED FIRST APPELLATE ITA NO. 6164/DEL/2016 ASSESSMENT YEAR 2009-10 4 AUTHORITY IN THE EARLIER ROUND. SHE SUBMITTED THAT THE APPEAL OF THE ASSESSEE DESERVES TO BE DISMISSED OUTRIGHT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, AS PER TH E SEQUENCE OF EVENTS NOTED BY THE LOWER AUTHORITIES IN THEIR ORDE RS, WE DO FIND THAT THE ASSESSEE HAS BEEN EXTREMELY CARELESS IN RE SPONDING TO THE ASSESSMENT AS WELL AS FIRST APPELLATE PROCEEDIN GS. HOWEVER, LOOKING INTO THE FACTS OF THE CASE AND ALSO CONSIDE RING THE REQUEST OF THE LD. AR AND THE ASSURANCE GIVEN BY THE LD. AR AT THE BAR THAT THE ASSESSEE WILL COOPERATE WITH THE PROCEEDIN GS AND FURNISH THE REQUIRED DOCUMENTARY EVIDENCES IF GIVEN AN OPPO RTUNITY TO DO SO, IN THE INTEREST OF JUSTICE, WE RESTORE THE ISSU E TO THE FILE OF THE ASSESSING OFFICER TO ADJUDICATE THE ISSUE DE NOVO A FTER GIVING THE ASSESSEE A PROPER OPPORTUNITY. WE ALSO ADD THAT SH OULD THE ASSESSEE FAIL TO TAKE BENEFIT OF THE OPPORTUNITY GR ANTED BY THE ITAT FOR THE SECOND TIME, THE ASSESSING OFFICER WIL L BE AT LIBERTY TO DRAW A NEGATIVE INFERENCE AND PROCEED EX PARTE QUA THE ASSESSEE ON MERITS OF THE CASE IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 6164/DEL/2016 ASSESSMENT YEAR 2009-10 5 ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH JANUARY, 2018. SD/- SD/- (R.S. SYAL) (SUDHANSHU SRIVASTAVA) VICE PRESIDENT JUDIC IAL MEMBER DT. 5 TH JANUARY 2018 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR