Atul Kumar Gupta, Ghaziabad V. ITO, Ghaziabad

ITA 6595/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6982 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 04-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Peak credit
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-6595/DE L/2014 (ASSESSMENT YEAR-2009-10) ATUL KUMAR GUPTA, C/O-AKHILESH KUMAR, ADVOCATE, CHAMBER NO.206-07, ANSAL SATYAM, RDC RAJ NAGAR, GHAZIABAD. PAN-ACBPG9513H (APPELLANT ) VS ITO, WARD-1(1), GHAZIABAD (RESPONDENT ) ASSESSEE BY SH. PUSHKAR PANDEY, ADV. REVENUE BY SH. DEEPAK GARG, SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 25.09.2014 OF CIT(A) , GHAZIABAD PERTAINING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDIN G GROUND NO.2 WHICH READS AS UNDER:- 2. THAT, BOTH THE LEARNED LOWER AUTHORITIES FAILED TO PROVIDE PROPER OPPORTUNITY OF BEING HEARD IN AS MUCH AS LD.AO FAIL ED TO PROVIDE ANY OPPORTUNITY AFTER COMPLIANCES MADE BY ASSESSEE AND LD.CIT(A) FAILED TO CONSIDER THE ADDL. EVIDENCES BY THE ASSESSEE EVEN W ITHOUT CALLING ANY REPORT FROM AO ETC., HENCE PROVISION OF NATURAL JUS TICE HAS BEEN DEFEATED.. 2. THE LD.AR INVITING ATTENTION TO THE ASSESSMENT O RDER REPRODUCED IN THE IMPUGNED ORDER SUBMITTED THAT THE AO IN PARA 2 HAS MADE A REFERENCE TO THE FACT THAT THE ASSESSEE WAS REPRESENTED ON 23.12.201 1 BY SH. PANKAJ KUMAR, CA. HOWEVER, HE OBSERVES THAT THE ASSESSEE FAILED TO CO MPLY WITH THAT THE INFORMATION SOUGHT. REFERRING TO THE PAPER BOOK PA GE 4 & 5 FILED BEFORE THE CIT(A) IT WAS SUBMITTED THAT INFACT THE ASSESSEE HA S PROVIDED THE COMPLETE INFORMATION TO THE AO ON THE SAID DATE. THE COPY O F THIS LETTER FILED BEFORE THE CIT(A) WAS TREATED BY HIM AS A FRESH EVIDENCE. AGGR IEVED BY THIS THE ASSESSEE DATE OF HEARING 04.07.2016 DATE OF PRONOUNCEMENT 26.09.2016 I. T.A .NO.-6595/DEL/2014 PAGE 2 OF 3 HAS ALSO FILED AN AFFIDAVIT OF THE LD. AR, SH. PANK AJ KUMAR AFFIRMING THESE FACTS. THE CONTENTS OF THE AFFIDAVIT ARE REPRODUCED HEREUN DER:- I, PANKAJ KUMAR, S/O SH. BISHESHWAR DAYAL PARTNER OF M/S KPMC & ASSOCIATION, C-1, RDC, RAJ NAGAR, GHAZIABAD DO HERE BY SOLEMNLY DECLARE AND STATE ON OATH AS UNDER:- 1. THAT MY AFORESAID IDENTIFICATION IS CORRECT AND BEI NG AUTH.REP. OF THE ABOVE ASSESSEE WHO APPEARED BEFORE LD.AO IN THIS MA TTER HENCE IS CONVERSANT WITH THE FACTS OF THE ABOVE SAID CASE AN D IS COMPETENT TO SWEAR THIS AFFIDAVIT. 2. THAT, I FILED VARIOUS DOCUMENTS BEFORE LD.AO LIKE B ANK ACCOUNTS, COPY OF CASH A/C OF ASSESSEE FROM FIRM ET C. IN SUPPORT OF CLAIM OF ASSESSEE AND COMPLIES WITH QUERIES. 3. THAT, ASSERTION OF LD.AO IN HIS ORDER DT. 29.12.201 1 THAT ASSESSEE HAS NOT COMPLIED WITH ANY QUERY RELATING TO SOURCE OF D EPOSIT IS WRONG. 4. THAT DUE TO ABOVE REASONS ASSESSEE BECAME DISSATISF IED WITH ME AND ENGAGED OTHER COUNSEL FOR 1 ST APPEAL DESPITE MY ASSURANCE FOR CO- OPERATION. (EMPHASIS PROVIDED) 3. RELYING UPON THE SAME IT WAS SUBMITTED THAT THE DISMISSAL OF THE ASSESSEES APPEAL BY THE CIT(A) WITHOUT EVEN GIVING ANY REASON WHATSOEVER WHY ADDITION CANNOT BE RESTRICTED TO THE PEAK DEPOSIT OF THE BOTH THE SAVINGS ACCOUNTS, IT WAS SUBMITTED IS ARBITRARY. THE IMPUG NED ORDER IT WAS SUBMITTED MAY BE SET ASIDE. THE LD. SR. DR PLACED RELIANCE U PON THE IMPUGNED ORDER HOWEVER SUBMITTED THAT THE ASSESSMENT ORDER PASSED U/S 144 AND IN THE CIRCUMSTANCES THE MATTER MAY BE RESTORED TO THE AO. THE LD.AR GAVE HIS ORAL UNDERTAKING STATING THAT THE ASSESSEE SHALL PARTICI PATE IN THE PROCEEDINGS BEFORE THE AO IN CASE THE ISSUES ARE RESTORED BACK. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. I FIND THAT IN THE FACTS OF THE PRESENT CA SE IN THE INTERESTS OF JUSTICE THE IMPUGNED ORDER DESERVES TO BE SET ASIDE. THE REQUE ST FOR ADDITION RESTRICTED TO THE PEAK CREDIT FOUND DEPOSITED IN THE BANK ACCOUNT S IF ON FACTS HAD TO BE REJECTED THEN THE FACTS SUPPORTING THE CONCLUSION S HOULD HAVE BEEN BROUGHT ON RECORD , THE PRAYER CANNOT BE REJECTED ON THE GROUN D THAT IT WAS NOT MADE BEFORE THE AO. EVEN OTHERWISE, IT IS SUBMITTED THAT NO FR ESH EVIDENCE WAS FILED BEFORE I. T.A .NO.-6595/DEL/2014 PAGE 3 OF 3 THE AO WHICH CLAIM IS SUPPORTED BY AN AFFIDAVIT OF THE COUNSEL REPRESENTING THE ASSESSEE BEFORE THE AO. IN THE FACE OF THE ORAL UND ERTAKING OF THE LD.AR THAT THE ASSESSEE SHALL PARTICIPATE IN THE SET ASIDE PROCEED INGS AND THE PRAYER OF THE LD.SR.DR THAT THE MATTER BE REMITTED THE PRAYER OF THE PARTIES IS ACCEPTED. THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUES ARE REST ORED TO THE AO DENOVO WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANC E WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE OPPORTUNITY SO PROVIDED IT IS HOPED IS USED BY THE ASSESSEE IN GOOD FAITH A S FAILING WHICH THE AO WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANC E WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 26 TH OF SEPTEMBER, 2016. SD/- (DIVA SINGH) JUD ICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTA NT REGISTRAR ITAT NEW DELHI