Mr. Mohit Jain, New Delhi V. ITO, New Delhi

ITA 6292/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3556 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 07-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI CHAUDHURI
• Keywords: Principle of natural justice
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.6292/DEL/2016 ASSESSMENT YEAR 2009-10 MR. MOHIT JAIN, D-813, NEW FRIENDS COLONY, NEW DELHI. PAN: ADXPJ 2179H VS. ITO, WARD-28(1), CIVIC CENTRE, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE(S) BY : S/SHRI R.S. SINGHVI & SATYAJEET GOEL, ADV. REVENUE BY : MS. BEDOBANI CHAUDHURI, SR.D.R. / DATE OF HEARING : 18/04/2017 / DATE OF PRONOUNCEMENT: 20/04/2017 ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LEARNED CIT(A)- 10, NEW DELHI, VIDE ORDER DATED 27.07.2016 FOR THE ASSESSMENT YEAR 2009- 10. 2. THE ASSESSEE HAS RAISED THE SOLE GROUNDS OF APPE AL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.25,39,273/- MADE BY T HE AO U/S.68 OF THE INCOME TAX ACT, 1961 AS PER ORDER UNDER SECTION 251 DATED 27.07.2016. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE A SSESSEE HAD FILED R E TURN DECLARING INCOME OF RS . 1 , 54 , 642/- ON 30 . 09 . 2009 , WHICH WAS SUBSEQUENTLY SELECTED FOR SCRUTINY UNDER CASS . THE AO ISSUED ST A TUTORY NOT I CE U / S. 143 ( 2 ) AND 142 ( 1 ) OF THE ACT , WH I CH REMA I NED PARTLY COMPLIED . VAR I OUS DETA IL S WE R E CALLED FO R BY THE AO V I DE NOTICE U / S. 142 ( 1 ) DATED 04 . 11 . 2011 TO F UR N I S H COP I ES OF BANK STATE M E N T DETA I LS REGA R D I NG ADD I T I ON TO CAP I TA L EXPLA INI NG TH E SOUR CE THE R EOF , EV ID E N CE R E L AT IN G T O I NVEST M ENT MADE IN ASSETS , DETA I LS ON T H E BASIS OF BA L ANCE SHEET , TRAD I NG A N D PROF I T AND L OSS ACCOUNT , ETC . HOWEVER, ABOV E NOTIC E R E TURNED UN-SERVED WITH TH E POSTA L ITA NO.6292/DEL/2016 2 REMARKS ' R E FU S ED ' . S I NCE , A SSE SS M E NT W A S B A RR E D B Y LIMIT AT I O N , AO C O M P L E TED THE ASSE S S M E NT O N THE B AS I S O F M ATER I A L AVA I LAB L E O N R ECORD . A SUM OF RS . 7 , 39 , 273 /- WAS DEBITED BY THE ASSESSEE I N THE PROF I T AND LOSS ACCOUNT ON ACCOUNT OF FABRICATION CHARGES . AO ASKED THE ASSESSEE TO SUBM I T DOCUMENTARY EVIDENCE I N SUPPORT OF TDS BEING DEDUCTED AND D E P O SIT E D INTO TH E GOV ERNM EN T ACCOUNT VIDE N OT I CE DATED 5 TH DEC. 2011 , B UT THI S N OT I CE R E M A IN ED U NCOMP LI ED W I TH . THEREFO R E , AO HELD THAT ASSESSEE FA IL ED TO PROVE TH A T CO M P LI A NC E OF TD S PROV I S I ONS HA S BE EN MADE WH I LE MAK I NG PAYMENT OF FABR I CATION CHARGES AND ACCORDINGLY , D IS AL L OWE D T HE C LAIM A N D ABOVE AMOUNT WAS ADDED BACK TO THE I NCOME D EC L A R ED BY TH E A S SES S EE F O R TH E YEA R U NDE R CO N S I DERAT I ON . AP A RT FROM THE A B O VE , AO M A DE A DD ITI O N O F R S . 1 8 L A KH T O T H E T AXA BLE I NCOME OF THE ASSESSEE HO L DING THAT A S S E S S E E F A IL E D TO EX PL A IN T HE S OURCE OF A DDITION MADE TO THE CAPITAL ACC O UNT T O T H E E XTENT ABOVE . THUS BY IN CORPO R AT IN G T H E ABOVE D I SALLOWANCES / ADD I T I ONS , TOTAL TAXAB L E IN COME O F THE ASSESSEE W AS COMPUTED A T RS . 26 , 93 , 9 1 5 / - AS AGA I NS T THE DE C L A R E D IN C OM E O F RS . 1 , 5 4 , 642 /- 4. LEARNED CIT(A) CONFIRMED THE ACTION OF THE AO. 5. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. IT WAS ARGUED BY THE LEARNED COUNSEL FOR THE ASSESSEE, MR. R.S. SINGHVI, ADV. THAT NOTICE DATED 11.11.2011 AND 5 TH DECEMBER, 2011 WERE NEVER RECEIVED AND SERVED UPON THE ASSESSEE, AND THEREFORE, NO SUF FICIENT OPPORTUNITY HAS BEEN GIVEN TO THE ASSESSEE AND ALSO THE LEARNED CIT (A) HAS PASSED THE EX- PARTE ORDER IN THE ABSENCE OF ANY REPRESENTATION BY THE ASSESSEE. IT WAS SUBMITTED BY THE LEARNED COUNSEL THAT THE MATTER MA Y BE SENT BACK TO THE AO AND FRESH OPPORTUNITY IS PROVIDED AND ASSESSEE SHAL L CO-OPERATE IN THE ASSESSMENT PROCEEDINGS, WHICH HAS BEEN CONCEDED BY THE LEARNED DR. 6. I HAVE PERUSED THE FACTS OF THE CASE AND IN THE INTEREST OF NATURAL JUSTICE, THE MATTER IS SET ASIDE TO THE FILE OF THE AO WHO WILL DECIDE THE ISSUE DE NOVO AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE ITA NO.6292/DEL/2016 3 AND THE ASSESSEE SHALL CO-OPERATE IN THE ASSESSMENT PROCEEDINGS AND THE NOTICE SHALL BE SERVED AT THE LATEST ADDRESS AS MEN TIONED IN FORM 36 AND HAS BEEN CONFIRMED BY THE LEARNED COUNSEL FOR THE ASSES SEE IS AS UNDER: MR. MOHIT JAIN, D-813, NEW FRIENDS COLONY, NEW DELHI. 7. IN THE RESULT, THE SOLE GROUND OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 20 TH APRIL, 2017 SD/- (B.P. JAIN) ACCOUNTANT MEMBER DATED: /04/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSTT. REGISTRAR, ITAT, NEW DELHI