Sh. Rajiv Mehra, New Delhi V. ITO, New Delhi

ITA 656/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4234 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 12-04-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 11-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: BHAGWATI PRASAD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F DELHI) BEFORE SHRI A.D. JAIN AND SHRI R.C. SHARMA ITA NO. 656(DEL)10 ASSESSMENT YEAR: 2004-05 SHRI RAJIV MEHRA, INCOME TAX OFFICER, C/O SH. BHAGWATI PD.ADVOCATE, V. WARD 46( 1), NEW DELHI. HANS BHAWAN, BAHADUR SHAH ZAFAR MARG,NEW DELHI. (APPELLANT) (RESPON DENT) APPELLANT BY: SHRI BHAGWATI PRASAD, ADVOCATE RESPONDENT BY: SHRI H.K . LAL, SR. DR ORDER PER A.D. JAIN, J.M. THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2004-05 TAKING THE FOLLOWING GROUNDS:- 1. BECAUSE THAT THE ORDER IS AGAINST FACTS AND LAW OF THE CASE. 2. BECAUSE THAT THE AUTHORITIES BELOW ERRED TO MAKE AD DITION OF RS. 2 LAKHS MERELY ON THE BASIS OF TYPOGRAPHICAL ER RORS WHERE THE AMOUNT OF DEMAND DRAFT WAS INADVERTENTLY MENTIONED RS. 36 LAKHS INSTEAD OF RS. 34 LAKHS. T HE ITA 656(DEL)2010 2 TRANSACTIONS ARE THROUGH BANK AND TRUE VERACITY OF THE SAME CANNOT BE DOUBTED IN ANY MANNER. 3. BECAUSE THAT THE AUTHORITIES BELOW FAILED TO APPREC IATE THAT INADVERTENT CLERICAL ERROR IN WRITING THE AMOU NT DOES NOT CALL FOR ANY ADDITION TO THE RETURNED INCOME. 4. BECAUSE THAT ASSUMING BUT NOT ADMITTING, THE MISTAK E OF RS. 2 LAKHS OCCURRING IN THE ACKNOWLEDGEMENT RECEIPT IN RESPECT OF BANK DRAFT CANNOT BE DEEMED TO BE AN UNEXPL AINED INVESTMENT OF THE APPELLANT. IT IS STATED THA T INSTEAD OF CONFRONTING THE APPELLANT AND SEEKING HIS EXPL ANATIONS ARE VERIFYING THE FACTUAL POSITION FROM THE BANK, THE ADDITION IS ARBITRARY AND UNWARRANTED. 2. THE FACTS OF THE CASE AS PER THE STATEMENT OF FA CTS FILED BEFORE US ARE THAT THE ASSESSEE IS VICE PRESIDENT AND TREASUR ER OF M/S. G.E. CAPITAL SERVICES INDIA. RETURN OF INCOME FOR ASSE SSMENT YEAR 2004-05 WAS FILED DECLARING INCOME OF RS. 55,32,699/-. TH E ASSESSEE PURCHASED A RESIDENTIAL PLOT AT DLF GURGAON, HARYANA FOR A CO NSIDERATION OF RS. 40 LAKHS. HE RAISED A LOAN OF RS. 38 LAKHS FROM S TANDARD CHARTERED BANK. THE PAYMENT WAS REMITTED THROUGH TWO DEMAND DRAFTS, ONE FOR RS. 6 LAKHS AND THE OTHER FOR RS. 34 LAKHS RESPECTI VELY. THE SALE DEED EXECUTED BETWEEN THE PARTIES MENTIONED THE TRANSFER VALUE OF THE PLOT AT RS. 40 LAKHS. IT ACKNOWLEDGED THE RECEIPT OF PAYME NT THROUGH TWO DRAFTS, OF RS. 6 LAKHS AND RS. 36 LAKHS. THIS DESP ITE THE FACT THAT THE ITA 656(DEL)2010 3 LATTER DRAFT WAS FOR RS. 34 LAKHS. THE AO ADDED T HE AMOUNT OF RS. 2 LAKHS. THE LD. CIT(A) CONFIRMED THE ADDITION. 3. THE LEARNED COUNSEL FOR THE ASSESSEE HAS, BEFORE US, FILED WRITTEN SUBMISSIONS, IN WHICH, IT HAS BEEN, INTER ALIA, CON TENDED THAT THERE WAS SOME GAP IN RESPECT OF HEARING OF THE APPEAL BEFORE THE LD. CIT(A) AND PUTTING IN APPEARANCE BEFORE THE LD. CIT(A). THE LEARNED COUNSEL HAS CONTENDED THAT THE ADDITION OF RS. 2 LAKHS WAS WRO NGLY MADE SINCE THERE WAS AN INADVERTENT TYPOGRAPHICAL ERROR IN THE SALE DEED BY THE DOCUMENT WRITER, WHEREBY, THE AMOUNT OF THE SECOND DRAFT WAS MENTIONED AS RS. 36 LAKHS INSTEAD OF RS. 34 LAKHS, OF WHICH AMOUNT THE SECOND DRAFT WAS OF THE VALUE. IT HAS BEEN CONTEND ED THAT THE TRANSACTION WAS THROUGH BANK AND THE VERACITY THERE OF CANNOT BE DOUBTED IN ANY MANNER; THAT IT WAS ONLY A TYPOGRAPH ICAL ERROR WHICH SHOWED RS. 2 LAKHS AS HAVING BEEN PAID OVER AND ABO VE THE AMOUNT OF RS. 40 LAKHS AS PURCHASE CONSIDERATION OF THE RESID ENTIAL PLOT AT GURGAON BY THE ASSESSEE; THAT IN FACT, THE TRANSACT ION AS EVIDENCED FROM THE BANKING PAPERS WAS OF RS. 40 LAKHS ONLY AND NOT RS. 42 LAKHS; AND THAT THEREFORE, THE ADDITION IS NOT SUSTAINABLE EIT HER ON FACTS OR IN LAW. 4. THE LD. DR, ON THE OTHER HAND, HAS STRONGLY RELI ED ON THE IMPUGNED ORDER. IT HAS BEEN CONTENDED THAT THE TWO DIFFERENT VALUES OF ITA 656(DEL)2010 4 THE SALE CONSIDERATION HAVE BEEN QUOTED IN THE AGRE EMENT TO SELL, AS NOTED BY THE CIT(A); THAT THE ASSESSEE DID NOT APPE AR BEFORE THE LD. CIT(A) TO SUBSTANTIATE HIS CASE OF THE ACTUAL CONSI DERATION BEING RS. 40 LAKHS AND NOT RS. 42 LAKHS; AND THAT THEREFORE, THE RE BEING NO MERIT IN THE APPEAL, THE SAME BE DISMISSED. 5. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE M ATERIAL ON RECORD. THE LD. CIT(A), IT IS SEEN, HAS DISMISSED THE ASSESSEES APPEAL EX-PARTE QUA THE ASSESSEE. IN HIS WRITTEN SUBMISS IONS, AS NOTED ABOVE, THE ASSESSEE HAS CONTENDED THAT THERE WAS SOME GAP IN RESPECT OF THE NOTICE OF HEARING BEFORE THE CIT(A) AND IN PUTTING IN APPEARANCE BEFORE THE LD. CIT(A). THE ORDER OF THE LD. CIT(A) DOES NOT SHOW ANY NOTICE OF HEARING FOR 1.5.2009 BEFORE THE LD. CIT(A) HAVIN G BEEN SERVED ON THE ASSESSEE. AS SUCH, WE DEEM IT APPROPRIATE TO REMI T THIS MATTER TO THE FILE OF THE CIT(A) TO BE DECIDED AFRESH IN ACCORDAN CE WITH LAW ON AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE AS SESSEE. THE ASSESSEE, NO DOUBT, SHALL CO-OPERATE IN THE APPEAL PROCEEDINGS BEFORE THE LD. CIT(A). ITA 656(DEL)2010 5 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.04.20 10. SD/- SD/- (R.C. SHARMA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12.04.2010 *RM COPY FORWARDED TO: 1. SHRI RAJIV MEHRA, C/O SH. BHAGWATI PD.ADVOCATE, HANS BHAWAN, BAHADUR SHAH ZAFAR MARG,NEW DELHI. 2. ITO, WARD 46(1), NEW DELHI. 3. CIT 4.CIT(A) 5.DR TRUE COPY BY ORDER DEPUTY REGISTRAR