Haji Bhullan, Meerut V. ITO, Ward- 1(3), Meerut

ITA 6607/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6179 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 16-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH SHARMA SENIOR
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCHES (CAMP AT MEERUT) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6607/DEL./2018 (ASSESSMENT YEAR : 2010-11) SHRI HAJI BHULLAN, VS. ITO, WARD 1 (3), C/O SHRI VINOD KUMAR GOEL, MEERUT. 282, BOUNDRY ROAD, CIVIL LINES, MEERUT. (PAN : AIPPB9133J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD KUMAR GOEL, ADVOCATE REVENUE BY : SHRI YOGESH SHARMA, SENIOR DR DATE OF HEARING : 11.01.2019 DATE OF ORDER : 24.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI HAJI BHULLAN (HEREINAFTER REFER RED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL, SOUGH T TO SET ASIDE THE IMPUGNED ORDER DATED 28.08.2018 PASSED BY LD. CIT (APPEALS), MEERUT QUA THE ASSESSMENT YEAR 2010-11 ON THE GROUN DS INTER ALIA THAT :- 1. THAT THE AO. WAS NOT JUSTIFIED TO DENY FOR NOT FILING THE INCOME TAX RETURN BY THE ASSESSEE WHILE THE ASSESSE E HAS ALREADY FILED THE INCOME TAX RETURN VIDE ACK. NO.1403001193 DT. 2010-11 U/S 44AF. ITA NO.6607/DEL./2018 2 2. THE AO HAS NOT ISSUED NOTICE U/S 143(2) WHICH IS MANDATORY. THE C.I.T (A) IS NOT JUSTIFIED CONFIRM T HE ORDER U/S 144 OF I.T. ACT. 3. THAT AN AMOUNT OF RS.17,51,800/- DEPOSITED IN BA NK IS RELATED WITH THE SALES PROCEEDS OF THE RELATED ASSE SSMENT YEAR AND THE SAME IS CONFIRMED BY THE ASSESSEE IN THE STATEM ENT OF INCOME AND THE SAME FILED WITH THE RELEVANT ASSESSMENT YEA R ITR. THEREFORE THE LD. AO. WAS NOT JUSTIFIED TO IMPOSE A TAX ON THE SAME AMOUNT WITHOUT CONSIDERING THE FACTS OF THE CA SE OF C.I.T (A) IS IN ERROR IN PROVIDING PAST RELIEF OF INCOME SHOWN ONLY. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER HAS F RAMED THE ASSESSMENT IN THIS CASE UNDER SECTION 144/147 OF TH E INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) BY MAKING ASSESSMEN T ON THE GROUND THAT THE ASSESSEE HAS FAILED TO JOIN THE PRO CEEDINGS DESPITE REPEATED NOTICES AND PROCEEDED TO MAKE ADDITION OF RS.17,51,800/- ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCO UNT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (APPEALS) WHO HAS PARTLY ALLOWED THE APPEAL . FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.6607/DEL./2018 3 5. THE ASSESSEE HAS FILED RETURN U/S 44F OF THE ACT DECLARING INCOME OF RS.1,50,650/- BUT THE AO PROCEEDED ON THE WRONG FACTS THAT THE ASSESSEE HAS NOT FILED RETURN OF INCOME. IT IS ALSO NOT IN DISPUTE THAT IN THE RETURN, ASSESSEE HAS SHOWN GROS S RECEIPT FROM HIS TWO BUSINESSES, OF WHICH BOOKS ARE NOT MAINTAINED, NAMELY, OLD MOTOR PARTS AND CLOTH BUSINESS. HOWEVER, THE LD. C IT (A) HAS DECLINED TO ACCEPT THE CONTENTION OF THE ASSESSEE T HAT THE BANK DEPOSITS ON THE BASIS OF WHICH ADDITION OF RS.17,51 ,800/- HAS BEEN MADE CANNOT BE CORRELATED TO THE TURNOVER SHOWN IN THE RETURN OF INCOME. 6. WHEN THE ASSESSEE HAS COME UP WITH CATEGORIC CAS E THAT HE HAS NOT MAINTAINED THE REGULAR BOOKS OF ACCOUNT AND HAS FILED THE RETURN U/S 44AF, IT IS DIFFICULT TO UNDERSTAND AS T O WHY THE BANK ACCOUNT MAINTAINED WITH ICICI BANK CONTAINING DEPOS IT OF RS.17,51,800/- IS NOT TO BE CORRELATED WITH THE TUR N OVER. MOREOVER, WHEN AO WAS HAVING PAN OF THE ASSESSEE, W HICH IS DULY RECORDED IN THE ASSESSMENT ORDER, IT IS BEYOND COMPREHENSION AS TO WHY THE AO WAS NOT IN THE NOTICE OF FILING TH E INCOME-TAX RETURN OF THE ASSESSEE U/S 44AF. WHEN IT IS THE CA SE OF THE ASSESSEE THAT HE WAS HAVING CASH SALES AND DEPOSITED THE SAM E IN THE BANK ACCOUNT REGULARLY AND HE IS IN POSSESSION OF EVIDEN CES TO EXPLAIN THE SAME, IT IS DIFFICULT TO AGREE WITH LD. CIT (A) THAT BANK ACCOUNT ITA NO.6607/DEL./2018 4 CANNOT BE CORRELATED TO THE TURNOVER SHOWN IN THE R ETURN OF INCOME. SO, THE ASSESSEE IS REQUIRED TO BE GIVEN ADEQUATE O PPORTUNITY OF BEING HEARD TO EXPLAIN THE SAME. 7. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE IMPUGNED ORDER PASSED BY T HE LD. CIT (A) IS LIABLE TO BE SET ASIDE AND THE FILE IS ORDERED T O BE REMANDED TO AO AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQUENTLY, THE APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF JANUARY, 2019. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 24 TH DAY OF JANUARY , 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.