Mr. Ashok Malhotra, New Delhi V. DCIT, New Delhi

ITA 6240/DEL/2015

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0796 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 24-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K TIWARI
• Assessee Lawyers: MANPREET SINGH KAPOOR PARTNER
• Keywords: Unexplained cash credit; Income from undisclosed sources; Reassessment proceedings
• Section: 153A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.6240/DEL/2015 (ASSESSMENT YEARS 2006-07) ASHOK MALHOTRA VS. DCIT HOUSE NO. 1310, CENTRAL CIR CLE-15 DR. MUKHERJEE NAGAR NEW DELHI NEW DELHI PAN :AAPPM8352G ASSESSEE BY : SH. MANPREET SINGH KAPOOR, PARTNER REVENUE BY : SH. K. TIWARI, SR. DR DATE OF HEARING: 26.09.2018 DATE OF PRONOUNCEMENT: 05 .10.2018 ORDER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, ASHOK MALHOTRA (HEREINAFTER REFERRED TO AS THE ASSESSED), BY FILING PRESENT APPEAL SOUGHT TO SET A SIDE THE IMPUGNED ORDER DATED 15.09.2015 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXVI, NEW DELH I QUA THE ASSESSMENT YEAR 2006-07 ON THE GROUNDS INTER A LIA THAT :- (A) THAT THE LD. CIT (A) HAS ERRED IN DISMISSING THE APPEAL WITHOUT GIVING PROPER OPPORTUNITY TO APPELLANT AND ORDER PASSED BY LD. CIT (A) IS BAD IN LAW. (B) THAT THE ORDER OF LD. ASSESSING OFFICER IS 2 ITA NO. 6240/D EL/2015 (ASHOK MALHOTRA) BAD IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE. (C) THAT THE ASSESSMENT ORDER OF LD. ASSESSING OFFICER IS BAD IN LAW AS NO JUSTIFICATION HAS BEEN PRODUCED BEFORE MAKING ADDITION IN THE HAND OF ASSESSEE. (D) THAT THE ORDER OF LD. ASSESSING OFFICER IS BAD IN LAW AS NOTICE ISSUED U/S 153A IS BAD IN LAW. 2. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE REOPENING OF COMPLETED ASSESSMENT BY THE LD. ASSESSING OFFICER WHICH IS BAD IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, AS THE SAME IS BASED ON FLIMSY GROUNDS, CONJECTURES AND SURMISES AND IS NOT AS PER THE PROVISIONS AND INTENTION OF LAW, HENCE THE SAME IS LIABLE TO BE ANNULLED. 3. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE RECOMMENDATION OF SPECIAL AUDIT BY THE LD. ASSESSING OFFICER WHICH IS NOT AS PER LAW AND FACTS & CIRCUMSTANCES OF THE CASE AND WAS ONLY UNDERTAKEN TO GAIN TIME FOR COMPLETION OF ASSESSMENT AND ALSO TO TAKE ASSISTANCE OF OUTSIDE INDEPENDENT AGENCY TO DETERMINE THE INCOME AND THE SAME WAS SANCTIONED BY BYPASSING ALL THE PROVISIONS OF SECTION 142(2A) OF THE INCOME TAX ACT AND HENCE THE ASSESSMENT MADE IS NOT AS PER LAW AND IS LIABLE TO BE ANNULLED. 4. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE COMPLETION OF ASSESSMENT BY THE LD. ASSESSING OFFICER ON 24.08.2011 U/S 148 / 143(3), IN WHICH THE NOTICE U/S 148 WAS ISSUED ON 06.03.2012 WHICH IS BARRED BY LIMITATION AS PER THE PROVISIONS OF SECTION 153(2) OF THE INCOME TAX ACT WHICH STATES: 3 ITA NO. 6240/D EL/2015 (ASHOK MALHOTRA) 'THAT NO ORDER OF ASSESSMENT, RE-ASSESSMENT OR RE- COMPUTATION, SHALL BE MADE U/S 147 AFTER THE EXPIRY OF 9 MONTHS FROM THE END OF FINANCIAL YEAR IN WHICH THE NOTICE U/S 148 WAS SERVED.' THAT SINCE THE NOTICE WAS SERVED ON 22.03.2010 AND THE ASSESSMENT WAS TO BE MADE BEFORE 31.12.2010 AND THE ASSESSMENT WAS MADE ON 24.08.2011, WHICH IS CLEARLY BARRED BY LIMITATION AND HENCE THE ASSESSMENT IS LIABLE TO BE ANNULLED. 5. THATTHE LD: CIT (A) HASERRED ON FACTS ANDLAW BY UPHOLDING THE ADDITION OF RS. 18,97,160/- ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES DISCLOSED IN THE FORM OF RETAIL TRADING IS NOT AS PER LAW AND FACTS AND CIRCUMSTANCES OF THE CASE, AS ALL DETAILS, SUPPORTINGS TO THE ABOVE WERE DULY PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO ALL THIRD PARTY EVIDENCES RELIED BY THE LD. ASSESSING OFFICER WERE NEVER CONFRONTED TO THE ASSESSEE AND HENCE IS LIABLE TO BE DELETED. 6. THATTHE LD. CIT (A) HASERRED ON FACTS AND LAW BY UPHOLDING THE ADDITION OF RS.4,15,90,251/- ON ACCOUNT OF INCOME FROM CESSATION OF LIABILITY OF RETAIL TRADING/ UNEXPLAINED CREDITS IS NOT AS PER LAW AND FACTS AND CIRCUMSTANCES OF THE CASE, AS ALL DETAILS, SUPPORTINGS TO THE ABOVE WERE DULY PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO ALL THIRD PARTY EVIDENCES RELIED BY THE LD. ASSESSING OFFICER WERE NEVER CONFRONTED TO THE ASSESSEE AND HENCE IS LIABLE TO BE DELETED. 7. THATTHE LD. CIT (A) HASERRED ON FACTS AND LAW BY UPHOLDING THE ADDITION OF RS.31,30,248/- ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES DISCLOSED IN THE FORM OF CAR RENTAL INCOME/DISALLOWANCES AGAINST THE CAR/DRIVERS SALARY NOT DISCLOSED IS NOT AS PER LAW AND FACTS AND CIRCUMSTANCES OF THE CASE, AS ALL DETAILS, SUPPORTINGS TO THE ABOVE WERE DULY PROVIDED DURING THE COURSE OF 4 ITA NO. 6240/D EL/2015 (ASHOK MALHOTRA) ASSESSMENT PROCEEDINGS AND ALSO ALL THIRD PARTY EVIDENCES RELIED BY THE LD. ASSESSING OFFICER WERE NEVER CONFRONTED TO THE ASSESSEE AND HENCE IS LIABLE TO BE DELETED. 8. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE ADDITION OF RS.3,96,000/- ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES DECLARED IN THE SHAPE OF DHABA INCOME I$ NOT AS PER LAW AND FACTS AND CIRCUMSTANCES OF THE CASE, AS ALL DETAILS, SUPPORTINGS TO THE ABOVE WERE DULY PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO ALL THIRD PARTY EVIDENCES RELIED BY THE LD. ASSESSING OFFICER WERE NEVER CONFRONTED TO THE ASSESSEE AND HENCE IS LIABLE TO BE DELETED. 9. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE ADDITION OF RS.6,21,500/-ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES DISCLOSED IN THE FORM OF CANTEEN INCOME WHICH IS NOT AS PER LAW AND FACTS AND CIRCUMSTANCES OF THE CASE, AS ALL DETAILS, SUPPORTINGS TO THE ABOVE WERE DULY PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO ALL THIRD PARTY EVIDENCE RELIED BY THE LD. ASSESSING OFFICER WERE NEVER CONFRONTED TO THE ASSESSEE AND HENCE IS LIABLE TO BE DELETED. 10. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE ADDITION OF RS.3,83,48,5?8/- ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES DEPOSITED IN VARIOUS BANK ACCOUNTS WHICH IS NOT AS PER LAW AND FACTS AND CIRCUMSTANCES OF THE CASE, AS ALL DETAILS, SUPPORTINGS TO THE ABOVE WERE DULY PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO ALL THIRD PARTY EVIDENCES RELIED BY THE LD. ASSESSING OFFICER WERE NEVER CONFRONTED TO THE ASSESSEE AND HENCE THE ADDITION IS LIABLE TO BE DELETED. 11. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE ADDITION OF RS. 1,29,560/- ON ACCOUNT OF INCOME FROM BANK INTEREST AS DISCLOSED BY THE ASSESSEE IN RETURN 5 ITA NO. 6240/D EL/2015 (ASHOK MALHOTRA) OF INCOME WHICH IS NOT AS PER LAW AND FACTS AND CIRCUMSTANCES OF THE CASE, AS ALL DETAILS, SUPPORTINGS TO THE ABOVE WERE DULY PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO ALL THIRD PARTY EVIDENCE RELIED BY THE LD. ASSESSING OFFICER WERE NEVER CONFRONTED TO THE ASSESSEE AND HENCE THE ADDITION IS LIABLE TO BE DELETED. 12. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE COMPLETION OF ASSESSMENT ON THE BASIS OF CERTAIN DOCUMENTS WHICH WERE NEVER FOUND AT THE PREMISES OR IN POSSESSION OF THE ASSESSEE AND THE SAME WERE ALSO NEVER CONFRONTED WITH THE ASSESSEE AND HENCE THE ADDITIONS BASED ON SUCH DOCUMENTS IS NOT AS PER LAW AND ARE LIABLE TO BE DELETED. 13. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE COMPLETION OF THE ASSESSMENT IN WHICH THE LD. ASSESSING OFFICER HAD ONLY ONE INTENTION TO INCREASE THE ASSESSEE INCOME TO MAXIMUM LEVEL. WHILE COMPLETING THE ASSESSMENT, THE ADDITIONS ARE MADE OF THE SAME ITEMS, MORE THAN ONCE, BY FLOUTING THE ACCOUNTING PRINCIPLES AND SETTLED PROVISIONS OF THE LAW. FURTHER, IN CASE OF SUCH TYPE OF ASSESSMENT, THE SETTLED METHOD OF CALCULATING THE UNDISCLOSED INCOME HAS NOT BEEN TAKEN CARE OF AND HENCE THE ADDITIONS MADE ARE LIABLE TO BE DELETED. 14. THAT THE LD. CIT (A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE DISALLOWANCE OF CASH WITHDRAWALS AS EXPENDITURE FOR GENERATION OF SUCH CASH IS NOT AS PER LAW AS ALL THE RELEVANT DETAILS, DOCUMENT, EXPLANATION, ETC. ARE DULY PRODUCED BEFORE THE ASSESSING OFFICER. 15. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND LAW BY UPHOLDING THE CLUBBING OF INCOME OF INTEREST EARNED BY ASSESSEE'S RELATIVES IN THE HAND OF ASSESSEE IS BAD IN LAW AS ALL THE RELEVANT DETAILS, DOCUMENT, EXPLANATION, ETC. ARE DULY PRODUCED BEFORE THE ASSESSING OFFICER. 6 ITA NO. 6240/D EL/2015 (ASHOK MALHOTRA) 16. THE APPELLANT PRAYS FOR LEAVE TO ADD, ALTER, MODIFY AND WITHDRAW ANY OF THE GROUNDS EITHER BEFORE OR AT THE TIM E OF HEARING . 2. BRIEFLY STATED THAT FACTS NECESSARY FOR AD JUDICATION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF SEARCH CO NDUCTED BY CENTRAL BUREAU OF INVESTIGATION (CBI) AT THE RESIDE NCE OF ASSESSEE ON 27.07.2007 ALONG WITH SEARCHES CONDUCTED AT THE RESIDENCES OF DDA OFFICIALS, WHEREIN CASH OF RS. 19 LACS , GOLD J EWELLERY WEIGHING 7 KG (APPROXIMATELY), 17 LUXURY CARS WITH VIP NUMBER PLATES, 113 BANK ACCOUNTS MAINTAINED BY ASSESSEE AN D FAMILY MEMBERS OPERATING FROM THE SAME ADDRESS, ASSESSMENT WAS RE- OPENED. ON THE BASIS OF SEIZED MATERIAL BY THE CBI REASSESSMENT PROCEEDINGS WERE INITIATED. DECLINING THE CONTENTIO NS RAISED BY THE ASSESSED, INCOME AT RS. 8,61,13,305/- WAS ASSESSE E. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD . CIT(A) BY WAY OF FILING APPEAL WHO HAS DISMISSED THE SAME ON GROUND OF NON- APPEARANCE. FEELING AGGRIEVED THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 7 ITA NO. 6240/D EL/2015 (ASHOK MALHOTRA) 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATI VE OF THE ASSESSEE GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGH T OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. BARE PERUSAL OF IMPUGNED ORDER PASSED BY LD. CIT(A) GOES TO PROVE THAT THE APPEAL HAS BEEN DISMISSED NOT ON MERIT BUT FOR WANT OF PROSECUTION ON THE PART OF ASSESSEE. NO DOU BT, LD. CIT(A) HAS GIVEN SIX OPPORTUNITY TO THE ASSESSEE OUT OF WH ICH ON TWO DATES IT IS NOT SHOWN IF HE WAS SERVED OR NOT AND ON NEXT THREE DATES ADJOURNMENT APPLICATIONS WERE FILED WHICH WERE ALLO WED AND ON THE LAST DATE FIXED BY LD. CIT I.E. 15.09.2015 IMPUGNED ORDER WAS PASSED AND APPLICATION FOR ADJOURNMENT WAS RECEIVED ON 15.10.2015. 6. CHRONOLOGY OF DATES FIXED BY LD. CIT(A) FOR HEARING GIVEN IN THE TABULATED FORM AT PAGE 4 OF THE IMPUGNED ORD ER APPARENTLY GOES TO PROVE THAT ADEQUATE OPPORTUNITY HAS NOT BEE N GIVEN TO THE ASSESSEE TO ARGUE THE APPEAL BECAUSE WHEN THE ASSES SEE HAS ENGAGED HIS REPRESENTATIVE AND HAS BEEN MOVING ADJOURNMENT APPLICATIONS, HE CANNOT BE FAULTED FOR NON-PROSECUTION. THE LD. S R. DR 8 ITA NO. 6240/D EL/2015 (ASHOK MALHOTRA) VEHEMENTLY OPPOSED THE CONTENTION OF THE ASSESSEE. LD. AR FOR THE ASSESSEE THAT ADEQUATE OPPORTUNITY MAY BE GRANTED T O HIM, ON THE GROUND THAT ALREADY SUFFICIENT OPPORTUNITIES HAVE B EEN GIVEN TO HIM. 7. KEEPING IN VIEW THE FACTS AND CIRCUMSTANC ES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT TO DECIDE THE CONTR OVERSY AT HAND ONCE FOR ALL ADEQUATE OPPORTUNITY IS REQUIRED TO BE GRANTED AS THE APPEAL HAS NOT BEEN DECIDED ON LD. CIT ON MERIT BUT FOR NON- PROSECUTION . SO WE REMAND THE CASE BACK TO LD. CIT (A) TO DECIDE ON MERIT WITH THE DIRECTION TO THE ASSESSEE TO APPE AR BEFORE THE LD. CIT(A) ON 05.11.2018 AND NO SEPARATE NOTICE IS REQU IRED TO BE ISSUED TO HIM. CONSEQUENTLY PRESENT APPEAL IS ALLOW ED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 5 TH OCTOBER, 2018. SD/- SD/- (PRASHANT MAHARISHI) (KULDIP SIN GH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 5 TH OCTOBER, 2018 BINITA COPY FORWARDED TO:- 1. THE APPELLANT 9 ITA NO. 6240/D EL/2015 (ASHOK MALHOTRA) 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER AR, ITAT DATE OF DICTATION 27 .09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28 .09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 0 5 . 10 .2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 0 5 .10 .2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 0 5 .10 .2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 0 8 .10 .2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 0 8 .10 .2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .10 .2018 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