Abdul Wahid, Delhi V. ITO ward-63(1), New Delhi

ITA 6238/DEL/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7932 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Assessment Year: 2010-2011
• Appeal Filed On: 22-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Additional evidence; Set aside
• Section: 148; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “SMC-2” BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA No.6238/Del/2019 [Assessment Year : 2010-11] Abdul Wahid, 692-693, Kishan Ganj Azad Market Gali, Sheesh Mahal Chowk, Delhi-110006. PAN-AAUPW1560H vs ITO, Ward-63(1), New Delhi. APPELLANT RESPONDENT Appellant by Shri Santosh Kumar, Adv. Respondent by Shri Om Prakash, Sr.DR Date of Hearing 10.11.2021 Date of Pronouncement 23.11.2021 ORDER PER KUL BHARAT, JM : This appeal filed by the assessee for the assessment year 2010-11 is directed against the order of Ld. CIT(A)-20, New Delhi dated 17.06.2019. The assessee has raised following grounds of appeal:- 1. “That the ex-parte assessment order framed by the Ld. ITO vide order dated 11-12-2017 for the A/Y 2010-2011 at an income of Rs. 1133000/- is against the law and facts of the case. The Ld. CIT(A)- 20, New Delhi has also erred in law in confirming the addition of Rs. 1133000/- in the income of the assessee without going through the material available on the records. 2. That the appellant Mohd. Abdul Wahid has purchase the property of Rs. 1133000/- in the joint name with the Sh. Mohd. Nizam, this fact has completely been ignored by the Ld. CIT(Appeal)-20, New Delhi and the appeal has been dismissed and the whole investment has been added back in the income of the appellant. ITA No.6238/Del/2019 [Assessment Year : 2010-11] Page | 2 3. That the Ld. CIT(A)-20, New Delhi has erred in law in dismissing the appeal of the appellant without considering the material available on the records, and the affidavit filed by the appellant as the investment has been made by the appellant along with Mohd. Nizam. The appellant has furnished the copy of the General Power of Attorney in which the name of two persons have been mentioned. The appellant has also furnished the sale deed of the said property in which the name of the two persons have been mentioned, but this fact has completely been ignored by the Ld. CIT(A)-20, New Delhi while dismissing the appeal. 4. That the appellant has filed the return pertaining to the assessment year 2010-2011 and this fact has also been ignored by the Ld. ITO as well as by the Ld. CIT(A)-20, New Delhi. All the documents were lying with the Accountant who died on 28-06-2018. 5. That the Ld. ITO Ward No. 63(1). New Delhi has framed the ex-parte assessments order without any basis and reasoning and has not given proper and sufficient opportunity to the appellant to plead and represent his case to file the relevant papers and documents in respect of the assessment under consideration. Thus the assessment order so framed is wrong and illegal and the addition made in the income of the assessee is wrong and illegal and deserves to be deleted. 6. That the Ld. ITO has not followed the rules and principle of natural justice before framing the ex-parte assessment order. The rules and principle of natural justice that no one shall be condemned unheard and in the case of the appellant no such opportunity of hearing has been given to the appellant to prove the genuineness of the investment during the year under consideration. Thus the assessment order is wrong and illegal on this aspect also. 7. That the Ld. ITO has erred in law in taking an income on the basis of purchase of property amounting to Rs. 1133000/- without taking ITA No.6238/Del/2019 [Assessment Year : 2010-11] Page | 3 into consideration, the investment made by the assessee alongwith Mr. Mohd. Nizam. There is no adverse material has been pointed out against the assessee before framing the ex-parte assessment order. 8. That the Ld. ITa as well as Ld. CIT(A) has not considered the AIR information received from CPC Bengaluru in which the name of Abdul Wahid and Mohd. Nizam has been mentioned. 9. That the appellant reserves the right to add, amend and delete any of the grounds of appeal either at the time of hearing or before hearing of this appeal.” 2. Facts giving rise to the present appeal are that in this case, CIB/AIR information was received by the Department regarding purchase of immovable property amounting to Rs.11,33,000/- during the Financial Year 2009-10. It was noticed that the assessee did not file return of income therefore, the case of the assessee was re-opened and a notice u/s 148 of the Income Tax Act, 1961 (“the Act”) was issued and served upon the assesse. It is recorded by the Assessing Officer that in response to the notice, no one attended the proceedings and not filed the requisite details. Therefore, the Assessing Officer proceeded to frame ex-parte assessment u/s 144/148 of the Act vide order dated 11.12.2017 and made addition of Rs.11,33,000/-. 3. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A), wherein Ld.CIT(A) sustained the addition on the ground that the assessee could not produce any evidence regarding purchase of the property with Mr.Mohd. Nizam. 4. Aggrieved against this, the assessee is in appeal before this Tribunal. ITA No.6238/Del/2019 [Assessment Year : 2010-11] Page | 4 5. The assessee has raised various grounds of appeal. However, the effective ground is against the sustaining of addition in the hands of the assessee and not considering the material placed before Ld. CIT(A). 6. Ld. Counsel for the assessee reiterated the submissions as made before Ld.CIT(A). Ld. Counsel for the assessee vehemently argued that the authorities below were not justified in making the addition and sustaining the same. When the assessee has duly placed on record various documents which goes to demonstrate that the assessee had infact jointly purchased the property in question. He drew our attention to the General Power of Attorney (“GPA”). Therefore, he prayed that material may be remanded to the Assessing Officer for considering the evidences filed by the assessee before Ld.CIT(A). 7. On the contrary, Ld. Sr. DR, Shri Om Prakash opposed these submissions and submitted that the assessee was given sufficient opportunity by the authority below. He submitted that the Assessing Officer in the impugned order, has categorically recorded that the assessee did not attend the proceedings despite having given the sufficient opportunity. 8. I have heard the rival submissions and perused the material available on record and gone through the orders of the authorities below. There is no dispute with regard to the fact that the assessment order is ex-parte to the assessee and Ld.CIT(A) did not admit and consider the evidence produced before him. Ld.CIT(A) in para 6.2.1 has decided the issue by observing as under:- ITA No.6238/Del/2019 [Assessment Year : 2010-11] Page | 5 6.2.1. “The appellant had filed application under Rule 46A of Income Tax Rules for acceptance of additional grounds of appeal. From the assessment order it is evident that the assessee did not comply with the notice u/s 148 of the Act nor did he comply with the notice u/s 142(1) of the Act issued and served by the Assessing Officer on him. The Assessing Officer had information that the appellant had purchased immovable property of Rs. 11,00,000/- and paid stamp duty of Rs. 33,000/- on the same. Through application under Rule 46A the appellant submitted that he alongwith Md. Nizam has purchased the property for Rs. 11,00,000/- and stated that Md. Nizam is the co-owner of the property with him. The appellant had submitted copy of irrevocable general power of attorney regarding the land under question in favour of Abdul Wahid and Md. Nizam and stated that the sale deed is executed in both their names. However, the appellant could not produce any evidence regarding Md. Nizam investing in the purchase of the property alongwith him and no confirmation from Md. Nizarn was produced regarding payment of any part in the purchase of the property as mentioned above. In the absence of these evidences, it is not possible to admit the additional evidence submitted by the appellant because there was no proof to corroborate that the entire amount of investment in the property has not been done by him. The additional evidence is therefore rejected.” 9. The contention before the authorities below from the assessee was that the property was jointly purchased alongwith one person namely, Mr.Mohd. Nizam. This issue has not been duly adverted by the authority below. Therefore, considering the facts placed before me, I am of the considered view that the assessee ought to have been given sufficient opportunity to explain the source of purchase of property. I hereby, set aside the impugned order and restore the assessment to the file of Assessing Officer to frame assessment ITA No.6238/Del/2019 [Assessment Year : 2010-11] Page | 6 afresh after giving due opportunity to the assessee. Thus, grounds raised by the assessee are allowed for statistical purposes. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Above decision was pronounced on conclusion of Virtual Hearing in the presence of both the parties on 23 rd November, 2021. Sd/- (KUL BHARAT) JUDICIAL MEMBER *Amit Kumar* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI