Shri Satish Parashar, New Delhi V. ITO, New Delhi

ITA 633/DEL/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7761 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 24-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 10-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BERNWAL
• Assessee Lawyers: VIRENDER CHAUHAN
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G, NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SHRI C. M. GARG, JUDICIAL MEMBER I.T.A. NO.633/DEL/2010 (ASSESSMENT YEAR 2006-07) SHRI SATISH PARASHAR VS. ITO, WARD 39(4), D-5/11, GROUND FLOOR, NEW DELHI MODEL TOWN-II, DELHI-110 009 GIR / PAN :AAVPP0597N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIRENDER CHAUHAN, FCA RESPONDENT BY : MS. ANIMA BERNWAL, SR. DR DATE OF HEARING: 24.05.2016 DATE OF PRONOUNCEMENT: 25.05.2016 ORDER PER R. S. SYAL, AM: THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE CIT(A) ON 30.11.2009 IN RELATION TO THE ASSE SSMENT YEAR 2006-07. 2. THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF ADDITION IN RESPECT OF THREE CREDITS, VIZ., SHRI ASHOK GUPTA , M/S. SHIVANG ENTERPRISES AND SHRI RISHIKANT, FARIDABAD. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A BUILDE R WHO FILED HIS RETURN DECLARING TOTAL INCOME AT RS.3,31,140/- DUR ING THE 2 I.T.A.NO.633./DEL/2010 COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFF ICER OBSERVED THAT THE ASSESSEE HAD SHOWN TO HAVE RAISED LOANS FROM CERTAIN PARTIES. THE ASSESSEE WAS CALLED UPON TO PROVE THE GENUINENESS OF CERTAIN CREDITS INCLUDING THE AB OVE THREE. THE ASSESSEE FILED SOME DETAILS INCLUDING CONFIRMAT IONS FROM THESE THREE PERSONS. AS REGARDS THE CLOSING BALANCE OF THE CREDITOR SHRI ASHOK GUPTA AMOUNTING TO RS.22.00 LAC , THE ASSESSING OFFICER OBSERVED THAT THERE WAS NO MENTIO N OF ANY CHEQUE NUMBER, DATE, NAME OF THE BANK ETC. IN THE CONFIRMATION AND ONLY PAN WAS GIVEN, WHICH WAS NOT ENOUGH. AS REGARDS M/S. SHIVANG ENTERPRISES, HE OB SERVED THAT A SUM OF R.5,00,000/- WAS APPEARING TO THE CRE DIT OF THIS ACCOUNT. THE CONFIRMATION FILED BY THE ASSESSEE WA S FOUND TO BE LACKING QUA MENTION OF CHEQUE NUMBER, DATE AND NAME OF THE BANK. SIMILARLY, AS REGARDS SHRI RISHIKANT, FA RIDABAD, FROM WHOM CREDIT OF RS.6,00,000/- WAS SHOWN TO HAVE BEEN RECEIVED AS ADVANCE AGAINST LAND, THE AO FOUND THE CONFIRMATION TO BE LACKING IN RESPECT OF MENTION OF DESCRIPTION OF THE LAND AGAINST WHICH ADVANCE WAS G IVEN. IN VIEW OF THE ABOVE FACTS, THE ASSESSING OFFICER CONC LUDED THAT THE GENUINENESS OF THESE CREDITS WAS NOT PROVED. H E, THEREFORE, MADE AN ADDITION OF RS.22,00,000/-, BEI NG THE AMOUNT APPEARING AS CREDIT IN THE NAME OF SHRI ASHO K GUPTA, 3 I.T.A.NO.633./DEL/2010 RS.5,00,000/- SHOWN AS PAYABLE TO M/S. SHIVANG ENTE RPRISES AND RS.6,00,000/- DECLARED AS PAYABLE TO RISHIKANT FARIDABAD. 3. THE ASSESSEE FILED ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A), WHO CALLED FOR A REMAND REPORT FROM THE ASS ESSING OFFICER. CONSIDERING THE REMAND REPORT, THE LD. CI T(A) UPHELD THE ADDITION OF RS.5,00,000/- IN THE CASE OF SHIVAN G ENTERPRISES, RS.6,00,000/- IN THE CASE OF RISHIKANT AND RS.30,00,000/- IN CASE OF SHRI ASHOK GUPTA. THIS A DDITION OF RS.30,00,000/- WAS AFFIRMED BY THE LD. CIT(A) IN VI EW OF THE FACT THAT THE ASSESSEE HAD SHOWN TO HAVE RAISED LOA N OF RS.30,00,000/- OUT OF WHICH A SUM OF RS.8,00,000/- WAS PAID TO SHRI ASHOK GUPTA DURING THE YEAR UNDER CONSIDERA TION AND THE ASSESSING OFFICER HAD MADE ADDITION OF RS.22,00 ,000/- ONLY, BEING THE CLOSING BALANCE. HERE, IT IS PERTIN ENT TO MENTION THAT CERTAIN OTHER ADDITIONS WERE ALSO MADE BY THE AO, WHICH STOOD DELETED IN THE FIRST APPEAL. THE L D. DR HAS NOT BROUGHT TO OUR NOTICE ANY CROSS APPEAL HAVING B EEN FILED BY THE REVENUE. 4. APART FROM THE GROUNDS RAISED IN THE MEMO OF APP EAL, CHALLENGING THE CONFIRMATION OF ADDITION OF RS.22,0 0,000/-, RS.5,00,000/- AND RS.6,00,000/- IN RESPECT OF ADDIT IONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CREDITS APPE ARING IN THE NAME OF SHRI ASHOK GUPTA, M/S. SHIVANG ENTERPRI SES AND SHRI RISHIKANT FARIDABAD, THE ASSESSEE HAS ALSO RA ISED TWO 4 I.T.A.NO.633./DEL/2010 ADDITIONAL GROUNDS. NO SERIOUS OBJECTION WAS TAKEN BY THE LD. DR TO THE ADMISSION OF THE ADDITIONAL GROUNDS. THE SAME ARE, THEREFORE, ADMITTED. THE FIRST ADDITIONAL GROUND CH ALLENGES THE ENHANCEMENT OF ADDITION IN RESPECT OF CREDIT IN THE NAME OF SHRI ASHOK GUPTA, FROM RS.22,00,000/- AS MADE BY TH E ASSESSING OFFICER TO RS.30,00,000/- . THE SECOND A DDITIONAL GROUND CHALLENGING THE JURISDICTION OF ASSESSING OF FICER TO FRAME THE ASSESSMENT WAS NOT PRESSED DURING THE COU RSE OF HEARING BEFORE US. AS SUCH, THE SECOND ADDITIONAL G ROUND IS DISMISSED AS NOT PRESSED. NOW, WE ARE REQUIRED TO DEAL WITH THE GROUNDS IN THE MEMO OF APPEAL AND THE FIRST ADD ITIONAL GROUND, ALL OF WHICH RELATE TO THE THREE CREDITS AS DISCUSSED SUPRA . 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSER VED FORM THE ASSESSMENT ORDER THAT THE ASSESSEE COULD NOT FILE N ECESSARY DETAILS BEFORE THE ASSESSING OFFICER DURING THE ASS ESSMENT PROCEEDINGS BECAUSE OF THE FACT THAT THE EFFECTIVE PROCEEDINGS WERE TAKEN UP BY THE ASSESSING OFFICER VIDE HIS LET TER DATED 15.12.2008 REQUIRING THE ASSESSEE TO FURNISH EVIDEN CE IN SUPPORT OF GENUINENESS OF THESE CREDITS. SINCE THE ASSESSMENT WAS GETTING TIME BARRED ON 31.12.2008, THE ASSESSIN G OFFICER PASSED THE ORDER MAKING THESE ADDITIONS WITHOUT GIV ING ADEQUATE HEARING OPPORTUNITY TO THE ASSESSEE. DURIN G THE 5 I.T.A.NO.633./DEL/2010 COURSE OF THE FIRST APPELLATE PROCEEDINGS, THE ASSE SSEE PLACED ON RECORD SOME ADDITIONAL EVIDENCE IN SUPPORT OF TH E GENUINENESS OF CREDITS, WHICH WERE SENT BY THE LD. CIT(A) TO THE ASSESSING OFFICER FOR CONSIDERING THE SAME AND THEN SENDING THE REMAND REPORT. THE LD. A.R. CONTENDED THAT DURING THE REMAND PROCEEDINGS ALSO, THE ASSESSING O FFICER DID NOT CALL THE ASSESSEE EVEN FOR ONCE AND SENT THE RE MAND REPORT BY CONSIDERING WHATEVER MATERIAL WAS SENT BY THE LD . CIT(A) TO HIM. IN THIS BACKDROP OF THE FACTUAL MATRIX, WE ARE SATISFIED THAT TO MEET THE ENDS OF JUSTICE, IT WOULD BE APPRO PRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER BAC K TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION OF THE INS TANT ISSUES. WE ORDER ACCORDINGLY AND DIRECT THE ASSESSING OFFIC ER TO EXAMINE THE GENUINENESS OR OTHERWISE OF THE CREDITS APPEARING IN THE NAMES OF SHRI ASHOK GUPTA, M/S. SHIVANG ENTE RPRISES AND SHIR RISHIKANT, FARIDABAD AFRESH AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MAY, 2016. SD./- SD./- (C. M. GARG) (R. S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 25.05.2016 6 I.T.A.NO.633./DEL/2010 SP. COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI) S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 24/5 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 24/5/16 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 25/5/16 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 25/5 SR. PS/PS 7 FILE SENT TO BENCH CLERK 25/5 SR. PS/PS 8 DATE ON WHICH THE F ILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER *