Devender Singh, Hapur V. ITO, Ward-3(4), New Delhi

ITA 6463/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9770 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-10-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: RK GARG
• Keywords: Principle of natural justice; Additional evidence; Competent authority; Reassessment proceedings
• Section: 142(1); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.6463/DEL/2018 ASSESSMENT YEAR: 2008-09 DEVENDER SINGH, S/O HARPAL SINGH, VILL. SIKANDERPUR KAKOLI, HAPUR, UTTAR PRADESH. PAN: BAWPS8081C VS. ITO, WARD-3(4), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.K. GARG, ADVOCATE REVENUE BY : SHRI S.L. ANURAGI, SR.DR DATE OF HEARING : 01.07.2019 DATE OF PRONOUNCEMENT : 02.07.2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 4 TH JULY, 2018 OF THE CIT(A), MUZAFFARNAGAR, RELATING TO ASSE SSMENT YEAR 2008-09. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND NO RETURN WAS FILED. ON THE BASIS OF THE AIR INFORMATION REG ARDING CASH DEPOSIT OF RS.15 LAKHS IN THE SAVINGS BANK ACCOUNT MAINTAINED BY THE ASSES SEE, THE CASE OF THE ASSESSEE WAS REOPENED U/S 147 OF THE IT ACT AND NOTICE U/S 148 W AS ISSUED ON 16 TH FEBRUARY, 2015, AFTER TAKING APPROVAL OF THE COMPETENT AUTHORITY. ALTHOUGH THIS NOTICE WAS SENT ITA NO.6463/DEL/2018 2 THROUGH REGISTERED POST AND WAS PROPERLY SERVED ON THE ASSESSEE, THERE WAS NO COMPLIANCE. EVEN THERE WAS NO COMPLIANCE TO THE ST ATUTORY NOTICE ISSUED U/S 142(1) ALONG WITH THE QUESTIONNAIRE. THE ASSESSING OFFICE R, THEREFORE, INVOKED THE PROVISIONS OF SECTION 144 OF THE ACT AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.15 LAKHS. 3. BEFORE THE CIT(A), THE ASSESSEE CHALLENGED THE V ALIDITY OF THE REASSESSMENT PROCEEDINGS AS WELL AS THE ADDITION ON MERIT. THE ASSESSEE ALSO FILED CERTAIN ADDITIONAL EVIDENCES WITH APPLICATION UNDER RULE 46A OF THE IT RULES, 1962 WHICH WAS FORWARDED TO THE ASSESSING OFFICER FOR HIS COMMENTS . THE ASSESSING OFFICER, IN HIS REMAND REPORT OBJECTED TO THE ADMISSION OF THE ADDI TIONAL EVIDENCES. SO FAR AS THE ADDITION ON MERIT IS CONCERNED, THE ASSESSING OFFIC ER ALSO DISPUTED THE HOLDING OF AGRICULTURAL LAND BY THE ASSESSEE AS WELL AS SHAR E IN THE PURCHASE OF THE PROPERTY BY THE OTHER CO-OWNER. AFTER CONSIDERING THE REJOINDE R OF THE ASSESSEE TO SUCH REMAND REPORT, THE LD.CIT(A) GAVE ONLY PART RELIEF TO THE ASSESSEE AND SUSTAINED AN AMOUNT OF RS.12,75,000/- U/S 69A OF THE IT ACT. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS:- 1. THAT UNDER THE FACTS & CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT (A) HAS ERRED TO CONFIRM THE LEGALITY OF SECTION 147/14 8. CONFIRMATION OF LEGALITY IS ARBITRARY, UNJUST, UNCALLED-FOR, ILLEGAL AND AGAINS T THE PROVISION OF INCOME TAX ACT. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, AFTER ADMITTING THE ADDITIONAL EVIDENCES THE LD. CIT (A) HAS ERRED TO C ONFIRM THE ADDITION OF RS. 1275000/- WITHOUT CONSIDERING THE CONTENTS OF AFFID AVIT AND OTHER DOCUMENTS. ITA NO.6463/DEL/2018 3 THE FINDING IS AGAINST THE NATURAL JUSTICE, ARBITRA RY, UNJUST, UNCALLED- FOR, ILLEGAL AND IN ANY CASE HIGHLY EXCESSIVE. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT (A) HAS ERRED TO CONFIRM THE ADDITION WITHOUT DISCHARGING T HE ONUS OF TAXABILITY IN THE HANDS OF ASSESSEE PARTICULARLY WHEN NEITHER THE INC OME HAS BEEN ASSESSED NOR DECLARED BY THE APPELLANT TO ATTRACT THE PROVISION OF IT ACT AND CONFIRMATION IS ARBITRARY, UNJUST, UNCALLED FOR, ILLEGAL AND AGAINS T THE PROVISION OF IT ACT. 5. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT IS THE SUBMISS ION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS TAKEN LOAN AGAINST KISAN CRED IT CARD IN HIS NAME AS WELL AS IN THE NAME OF HIS MOTHER WHICH WAS DEPOSITED IN THE SAID BANK ACCOUNT FOR PURCHASE OF CERTAIN AGRICULTURAL LAND. IT IS ALSO HIS SUBMISSI ON THAT SHARE OF THE PROPOSED LAND TO BE PURCHASED WAS DEPOSITED BY THE OTHER CO-OWNER IN THE BANK ACCOUNT OF THE ASSESSEE TO BE PAID TO THE SELLER OF THE LAND WHO INSISTED F OR TAKING THE ENTIRE AMOUNT BY CHEQUE. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASS ESSEE THAT GIVEN AN OPPORTUNITY HE IS IN A POSITION TO SUBSTANTIATE WITH EVIDENCE TO THE SAT ISFACTION OF THE ASSESSING OFFICER REGARDING THE CASH DEPOSITS IN THE BANK ACCOUNT MAI NTAINED BY THE ASSESSEE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSE SSING OFFICER WITH A DIRECTION TO GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIAT E WITH EVIDENCE TO HIS SATISFACTION REGARDING THE CASH DEPOSITED IN THE BANK ACCOUNT. SINCE THE LD. COUNSEL OF THE ASSESSEE DID NOT ARGUE THE VALIDITY OF THE REASSESSMENT PROC EEDINGS AT THIS JUNCTURE, THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. THE GROUNDS RAISED BY THE ASSESSEE ON MERIT ARE ITA NO.6463/DEL/2018 4 ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES AND TH E LEGAL GROUND RAISED BY THE ASSESSEE IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS PARTLY ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 02.07.2019. SD/- ( R.K. PANDA) ACCOUNTANT MEMFBE R DATED: 02 ND JULY, 2019 DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI