Mohd. Gulzar, Meerut V. ITO, Ward- 3(4), Ghaziabad

ITA 6608/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6176 (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: 2009-2010
• Appeal Filed On: 16-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUNSHI RAM BIHAGRA SENIOR
• Keywords: Opportunity of being heard; Additional evidence

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.6608/DEL./2018 (ASSESSMENT YEAR : 2009-10) MOHD. GULZAR, VS. ITO, WARD 3 (4), C/O SHRI VINOD KUMAR GOEL, MEERUT. 282, BOUNDRY ROAD, CIVIL LINES, MEERUT. (PAN : AOUPG9186K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD KUMAR GOEL, ADVOCATE REVENUE BY : SHRI MUNSHI RAM BIHAGRA, 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, MOHD. GULZAR (HEREINAFTER REFERRED T O AS THE ASSESSEE) BY FILING THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 25.02.2018 PASSED BY LD. CIT (APPEALS), GHAZIABAD QUA THE ASSESSMENT YEAR 2009-10 ON THE GR OUNDS INTER ALIA THAT :- 1. THAT THE A.O. IS IN ERROR IN HOLDING THAT THE ASSESSMENT MADE U/S 144/148 IS BAD IN LAW AS THE ASSESSEE HAS MADE COMPLIANCE AND FILED THE EVIDENCE ALONG THE SUBMISS ION DATED 28- ITA NO.6608/DEL./2018 2 09-2012. CIT(A) HAS CONFIRMED THE ORDER OF I.T.O. W ITHOUT ANY BASIS. 2. THAT THE ASSESSEE ALREADY FILED INCOME TAX RETUR N FILED IN WARD 36(4), NEW DELHI THEREFORE, THE ASSESSMENT MAD E BY THE A.O. IS OUT OF JURISDICTION. CIT(A) HAS CONFIRMED T HE ORDER OF I.T.O. WITHOUT ANY BASIS. 3. THAT THE A.O. HAS RECEIVED AIR INFORMATION RELAT ING TO CASH DEPOSIT IGNORING CASH WITHDRAWAL IN THE ASSESS MENT ORDER THE A.O. HIMSELF STATED THAT RS.13,91,000/- WAS DEP OSITED IN BANK ACCOUNT IS SHOWN REFLECTED IN HIS INCOME TAX RETURN WHICH IS MORE THAN THE BANK DEPOSIT HENCE EXPLAINING ASSET W ITHOUT CONSIDERING THE INCOME TAX RETURN WHILE THE ASSESSE E HAD ALREADY PROVIDED THE SAME, THE ASSESSMENT WAS MADE IS BAD IN LAW. CIT(A) HAS CONFIRMED THE ORDER OF I.T.O. WITHO UT ANY BASIS. 4. THAT THE PENALTY PROCEEDING U/S 271 (1)(C) INITI ATED BY THE A.O. IN ROUTINE AND MECHANICAL MANNER, WHICH IS NOT PERMITTED IN LAW. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 144/147 OF THE INCOME-TAX ACT, 1961 ( FOR SHORT THE ACT) DUE TO NON-APPEARANCE OF THE ASSESSEE DESPITE NOTICE BY MAKING ADDITION OF RS.13,91,000/- ON ACCOUNT OF UNE XPLAINED CASH DEPOSITED IN THE SAVING BANK ACCOUNT DURING THE YEA R UNDER ASSESSMENT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (APPEALS) WHO HAS CONFIRMED THE ADDITION BY REJECTING THE APPLICATION FOR ADDITIONAL EVIDENCE MOVED UNDER RUL E 46A OF THE INCOME-TAX RULES, 1962 (FOR SHORT THE RULES) AND THEREBY ITA NO.6608/DEL./2018 3 DISMISSED THE APPEAL. FEELING AGGRIEVED, THE ASSESS EE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT AP PEAL. 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. 5. UNDISPUTEDLY, THE ASSESSMENT IN THIS CASE HAS BE EN FRAMED BY THE AO U/S 144/147 OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS NOT COOPERATED BEFORE THE AO BY JOINING THE PRO CEEDINGS. HOWEVER, WHEN WE EXAMINE THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) IN PARA 6.1 ASSESSEE HAS CATEGORICALLY SOUG HT TO LEAD ADDITIONAL EVIDENCE BY MOVING AN APPLICATION UNDER RULE 46A OF THE RULES TO PROVE ON RECORD COPY OF ITR FILED, COM PUTATION OF INCOME, COPY OF BANK ACCOUNT AND CASH FLOW STATEMEN T, BUT LD. CIT (A) HAS SUMMARILY REJECTED THE SAME ON THE GROUND T HAT ALL THESE DOCUMENTS WERE AVAILABLE WITH THE ASSESSEE DURING T HE ASSESSMENT PROCEEDINGS BUT HE HAS NOT PRODUCED THE SAME. 6. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES O F THE CASE, WHEN UNDISPUTEDLY THE ASSESSEE REMAINED UNREPRESENT ED DURING THE ASSESSMENT PROCEEDINGS AND THE ASSESSMENT WAS FRAME D U/S 144/147 OF THE ACT, THE QUESTION OF PRODUCING THE D OCUMENTS SOUGHT TO BE PROVED BY WAY OF ADDITIONAL EVIDENCE B EFORE HIM, ITA NO.6608/DEL./2018 4 DOES NOT ARISE. WE ARE OF THE CONSIDERED VIEW THAT TO MEET WITH THE ENDS OF JUSTICE, ALL THE DOCUMENTS SOUGHT TO BE PRO VED BY THE ASSESSEE DURING APPELLATE PROCEEDINGS BY WAY OF ADD ITIONAL EVIDENCE ARE NECESSARY TO REACH AT THE LOGICAL CONC LUSION AND IN THESE CIRCUMSTANCES, THE ASSESSEE IS ENTITLED TO BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. CONSEQUENTLY, WE ORDER TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) AND RE MAND THE FILE BACK TO THE AO TO DECIDE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SO, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED 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), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.