Sh. V.N. Kedia, New Delhi V. DCIT, New Delhi

ITA 6600/DEL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2992 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 10-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 11-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KR CHOPRA
• Keywords: Unexplained cash credit; Unexplained investment; Search and seizure; Opportunity of being heard; Principle of natural justice; Corroborative evidences
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NOS.-6600 TO 6605/DEL/2015 (ASSESSMENT YEARS-2005-06, 2006-07, 2007-08, 2008-09, 2009-10, 2011-12) V.N.KEDIA, D-87, PREM KUTIR APARTMENT, PLOT NO.25/1, SECTOR-9, ROHINI, NEW DELHI PAN: AAKPK2102R (APPELLANT) VS DCIT, CENT. CIRCLE-8, NEW DELHI (RESPONDENT) ASSESSEE BY NONE REVENUE BY MR. MANOJ KR. CHOPRA, SR.DR ORDER THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE CONSOLIDATED ORDER DATED 06.08.2 015 OF CIT(A)-2, NEW DELHI PERTAINING TO 2005-06, 2006-07, 2007-08, 2008-09, 2 009-10, 2011-12 ASSESSMENT YEARS ON VARIOUS GROUNDS INCLUDING GROUN D NOS.1 & 2 WHICH ARE COMMON IN ALL THE APPEALS AND READ AS UNDER:- 1. THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A PPEALS)-II, NEW DELHI IS BAD IN LAW, WRONG ON THE FACTS AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE ORDER OF THE LD. CIT(APPEALS) AND ASSESSING OFFICER IS AGAIN ST THE LEGAL PRINCIPLES OF AUDI ALTERAM PARTEM AND THEREFORE THE ADDITIONS MADE ARE BAD IN LAW AND NEEDS TO BE QUASHED. 2. AT THE TIME OF HEARING, AN ADJOURNMENT WAS SOUGH T BY THE LD. SR. DR. HOWEVER, THE SAID REQUEST WAS NOT ACCEPTED AS CONSI DERING THE MATERIAL AVAILABLE ON RECORD IN THE CONTEXT OF THE ABOVE TWO GROUNDS T HE APPEALS COULD BE DECIDED. IT IS FURTHER SEEN THAT EVEN THE ASSESSEE WAS NOT R EPRESENTED. HOWEVER IN VIEW OF THE MATERIAL AVAILABLE ON RECORD, IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE HEARING EX-PARTE QUA THE ASSESSEE APPELLANT ON MERITS. DATE OF HEARING 10.02.2016 DATE OF PRONOUNCEMENT 03.03.2016 I.T.A .NOS.-6600 TO 6605/DEL/2015 PAGE 2 OF 5 3. THE RECORD SHOWS THAT SEARCH AND SEIZURE U/S 132 OF THE I.T. ACT WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF SH.V.N. KEDIA, 87, PREM KUTIR, SECTOR- 9, ROHINI, NEW DELHI ALONGWITH IN THE MONNET GROUP OF CASES ON 19.11.2010. THE CASE AS PER RECORD WAS CENTRALIZED TO CENTRAL C IRCLE-20, NEW DELHI VIDE ORDER UNDER SECTION 127 OF THE INCOME TAX ACT, DATED 03.0 3.2011 OF THE COMMISSIONER OF INCOME TAX-XVI, DELHI. FOR THE SAKE OF CONSIDER ING THE ABOVE TWO GROUNDS THE FACTS AS EVIDENT IN 2005-06 AY ARE BEING REFERRED T O AS IN THE REMAINING YEARS ON THIS ISSUE THE FACTS REMAIN IDENTICAL. 3.1. THE RECORD SHOWS THAT IN RESPONSE TO THE NOTIC E DATED 04.11.2011, THE ASSESSEE AS PER THE ASSESSMENT ORDER IS FOUND TO HA VE FILED A RETURN ON 05.01.2012 IN 2005-06 AY DECLARING A TOTAL INCOME O F RS.2,85,547/-. THEREAFTER A NOTICE WAS ISSUED ON 01.10.2012 WHICH AS PER PARA 2 OF THE AO WAS ATTENDED TO BY THE ASSESSEE. THE AO TOOK NOTE OF THE FACT T HAT THE ASSESSEE WAS DERIVING INCOME MAINLY FROM SALARY; SHORT TERM CAPITAL GA IN AND OTHER SOURCES ETC. CONSIDERING THE FACT THAT THE ASSESSEE IN ITS BANK ACCOUNT HAD RECEIVED CERTAIN AMOUNT FROM M/S SHRIPATI TRADING CO. ON ACCOUNT OF PURCHASE AND SALES OF SECURITIES /SHARES WHICH THE ASSESSEE HAD FAILED TO REFLECT IN ITS RETURN OF INCOME FILED THE ADDITION HAS BEEN MADE. 3.2. SIMILARLY IT WAS ALSO FOUND THAT PROFIT RECEIV ED FROM M/S DYNA SECURITIES LTD. DULY CREDITED IN THE BANK OF THE ASSESSEE ALSO WAS FOUND NOT TO HAVE BEEN DECLARED IN THE ASSESSEES RETURNED INCOME. ACCORD INGLY ADDITIONS WERE MADE ON THIS COUNT ALSO IN THE YEAR UNDER CONSIDERATION. 3.3. SIMILAR IS THE POSITION IN THE REMAINING YEARS ALSO. 4. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE C IT(A) PASSED A CONSOLIDATED ORDER FOR THE YEARS UNDER CONSIDERATIO N. A PERUSAL OF THE ORDER UNDER CHALLENGE SHOWS THAT THE CIT(A) HAS REPRODUCE D THE GROUNDS RAISED AND I.T.A .NOS.-6600 TO 6605/DEL/2015 PAGE 3 OF 5 THE ARGUMENTS ADVANCED IN THE RESPECTIVE YEARS IN P AGES 2 TO 9 OF HIS ORDER. THEREAFTER IN THE REMAINING HALF PAGE OF PAGE 9, TH E GROUNDS IN DIFFERENT YEARS HAVE BEEN SUMMED UP AND AGAIN IN PAGES 10, 11 & 12 THE STATUTORY POSITION AND THE CASE LAWS HAVE BEEN DISCUSSED. THE FINDING ON THE POSITION OF LAW THEREAFTER HAS BEEN SET OUT IN THE REMAINING HALF O F PAGE 12 AND ON THE MERITS OF THE ADDITIONS, THE FINDING HAS BEEN ARRIVED AT IN P ARAS 5 & 5.1 WHICH IS REPRODUCED HEREUNDER:- 5. GROUND OF APPEAL NO.6.1 FOR A.Y.2005-06, GROUND S NOS.6.1 AND 6.2 FOR A.Y.2006-07, GROUND NO.6.1 FOR A.Y.2007-08, GROUND NO.6.1 FOR A.Y. 2008-09, GROUND NO.6.1 FOR A.Y.2009 -10 AND GROUNDS NOS.7.1 & 7.2 FOR A.Y.2011-12 ARE RELATED T O ADDITION TO INCOME OF THE APPELLANT AS FOLLOWING:- 1. A.Y.2005-06-AMOUNT OF RS.31,289/- CREDITED IN BA NK BUT NOT DISCLOSED BY APPELLANT IN RETURN. 2. A.Y.2006-07-AMOUNT OF RS.2,10,000/- CREDITED IN BANK BUT NOT DISCLOSED BY APPELLANT IN RETURN. 3. A.Y.2007-08-UNEXPLAINED INVESTMENT OF RS.2,86, 000/- IN PLOT. 4. A.Y.2008-09-UNEXPLAINED DEPOSITS IN BANK, PPF AC COUNT ETC. OF RS.2,20,000/-. 5. A.Y.2009-10-UNEXPLAINED CREDIT ENTRY OF RS.1,17, 124/- IN BANK. 6.. A.Y.2011-12-LOSS OF RS.1,07,822/- DISALLOWED FO R WANT OF SUPPORTING AND RECEIPTS OF RS.75,000/- ASSESSED FR OM RUNNING OF CAR. 5.1. THE ABOVE ADDITIONS WERE MADE BY THE A.O BECAU SE THE APPELLANT FAILED TO PROVIDE EXPLANATIONS/SUPPORTING EVIDENCES IN RESPECT OF THE SAME DURING ASSESSMENT PROCEEDINGS. IN APPEAL BEFORE ME, THE APPELLANTS AR HAS NEITHER FILED ANY APPLICATION UNDER RULE 46A NOR SOUGHT TO EXPLAIN WH AT PREVENTED THE APPELLANT FROM FURNISHING BEFORE THE A.O. THE EXPLANATIONS IN REGARD TO THE ADDITIONS MENTION ED IN PARA 5.0 ABOVE, WHICH HE IS SUBMITTING IN APPEAL BEFORE ME. ACCORDINGLY, THE SAID EXPLANATIONS/EVIDENCES ARE NO T BEING ADMITTED AND THE ADDITIONS TO INCOME MADE IN ALL TH E ASSESSMENT YEARS ARE UPHELD. THESE GROUNDS OF APPE AL ARE DISMISSED. (EMPHASIS PROVIDED) 5. WHEN GROUND NO.1 & 2 RAISED IN THE PRESENT PROCE EDINGS REPRODUCED IN THE EARLIER PART OF THIS ORDER ARE READ ALONGWITH T HE ABOVE CONCLUSION IN PARA 5.1 DRAWN BY THE CIT(A), IT IS SEEN THAT THE ASSESSEE E VIDENTLY SOUGHT TO RELY ON FRESH I.T.A .NOS.-6600 TO 6605/DEL/2015 PAGE 4 OF 5 EVIDENCES. HOWEVER, IT IS EVIDENT THAT THE REQUEST WAS NOT SUPPORTED BY ANY APPLICATION UNDER RULE 46A SETTING OUT THE REASONS AS TO WHY IT WAS NOT FURNISHED BEFORE THE AO. 5.1. ACCORDINGLY CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND AFTER HEARING THE LD. SR. DR WHO PLACED RELIANC E ON THE IMPUGNED ORDER, I AM OF THE VIEW THAT IN THE INTERESTS OF SUBSTANTIAL JUSTICE IT WOULD BE APPROPRIATE TO SET ASIDE THE CONSOLIDATED IMPUGNED ORDER FOR EA CH OF THE YEARS AS EVIDENTLY RELEVANT MATERIAL IN SUPPORT OF THE GROUNDS RAISED FOR WANT OF PROPER ADVISE ETC. HAS NOT BEEN PLACED ON RECORD. ACCORDINGLY, OPPORT UNITY TO DO SO IS PROVIDED TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO APPROACH THE CIT(A) WITH AN APPROPRIATE PETITION SEEKING ADMISSION OF FRESH EVI DENCES AND SUPPORTING ITS CLAIM AS PER FACTS ON RECORD AS TO WHY THE EVIDENC ES WERE NOT FILED BEFORE THE AO. THE LD. SR. DR HAS SUBMITTED THAT THE POSITION IN THE REMAINING YEARS ALSO REMAINS THE SAME WHICH POSITION IS FOUND TO BE CORR ECT. 5.2. IN VIEW OF THE AFORE-MENTIONED PECULIAR FACTS AND CIRCUMSTANCE, THE IMPUGNED ORDERS ARE SET ASIDE AND THE ISSUES IN EAC H OF THESE YEARS ARE RESTORED BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION T O PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW CONSIDERING THE ADMISSIBILITY O F THE PETITION UNDER RULE 46A WHICH THE ASSESSEE IS GIVEN LIBERTY TO FILE BEFORE THE SAID AUTHORITY. NEEDLESS TO SAY THAT REASONABLE OPPORTUNITY OF BEING HEARD IS T O BE GRANTED TO THE ASSESSEE. IT MAY NOT BE OUT OF PLACE TO MAKE IT CLEAR THAT IT IS HOPED THAT THE OPPORTUNITY BEING PROVIDED IS GAINFULLY UTILIZED BY THE ASSESSE E AND THE ASSESSEE DOES NOT ABUSE THE TRUST REPOSED IN GOOD FAITH. AS FAILING WHICH THE LD.CIT(A) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. I.T.A .NOS.-6600 TO 6605/DEL/2015 PAGE 5 OF 5 6. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE AL LOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 RD OF MARCH, 2016. SD/- (DIVA SINGH) JU DICIAL MEMBER DATED: 03/03/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTA NT REGISTRAR ITAT NEW DELHI