Sh. Ram Niwas, Gurgaon V. ITO, Gurgaon

ITA 6696/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3673 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 30-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHYAM SUNDER MANGLA
• Keywords: Additional evidence
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI R.S.SYAL, VICE PRESIDENT AND SMT. BEENA A PILLAI , JUDICIAL MEMBER ITA NO. 1977/DEL/2014 ASSESSMENT YEAR - 2009 - 10 & ITA NO. 6696/DEL/2016 ASSESSMENT YEAR - 20 09 - 10 SH. RAM NIWAS H.NO.A - 26, SANJAY GRAM OPP. SECTOR 14 GURGAON 122 002, HARYANA PAN: ADHPN6950A VS ITO, WARD 2(1) GURGAON (APPELLANT) (RESPONDENT) DEPARTMENT BY SH. ATIQ AHMAD, SR. DR. ASSESSEE BY SH. SHYAM SUNDER MANGLA, ADV. DATE OF HEARING 14/08/2018 DATE OF PRONOUNCEMENT 14 TH AUGUST, 2018 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER : PRESENT APPEALS HA VE BEEN FILED BY ASSESSEE AGAINST ORDER DATED 29/01/2014 PASSED BY LD.CIT(A) - 2, FARIDABAD AND ORDER DATED 27/10/16 PASSED BY LD.CIT (A) - 1, GURGAON, FOR A SSESSMENT Y EAR 2009 - 10 ON THE FOLLOWING GROUNDS OF APPEAL: ITA NO. 1977/ D EL/2014 (AGAINST ORDER UNDER SECTION 250 DATED 29/01/2014 FOR A.Y - 2009 - 10) ITA 1977/DEL/2014 & ITA 6696/DEL/16 SH. RAM NIWAS VS. ITO, A.Y. 2009 - 10 2 1. THAT THE ASSESSEE DENIES HIS LIABILITY TO BE ASSESSED AT THE TOTAL INCOME OF RS. 32,24,600/ - ACCORDINGLY DENIES HIS LIABILITY T O PAY TAX AND INTEREST THEREON. 2. THAT HAVING REGARDS TO THE FACTS AND CIRC UMSTANCES OF THE CASE, THE HON BLE COMMISSIONER OF INCOME TAX (APPEALS) IS NOT RIGHT IN CONFIRMING THE IMPUGNED ORDER FRAMED BY THE ASSESSING OFFICER UNDER SECTION 143(3). 3. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HON BLE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS BY ADDING AMOUNT OF RS. 20,30,000/ - ON ACCOUNT OF CREDIT ENTRIES IN SB A/C WITH ING VYASA BANK. 4. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HON BLE COMMISSIONER O F INCOME TAX (APPEALS) HAS ERRED IN LAW AND FACTS BY ADDING AMOUNT OF RS. 2,95,000/ - ON A CCOUNT OF UNSECURED LOAN. 5. THAT HAVING REGARDS TO FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT (APPEALS) HAS NOT COMPLIED WITH THE PROVISION OF RULE 46A TO CALL SUCH MATERIAL ON RECORD. 6. THAT HAVING REGARDS TO FACTS, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT COMPLIED THE PROVISION OF SEC. 250(6) TO PASS A SPEAKING ORDER. 7. THAT THE HON BLE COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT AFFORDED PROPER OPPORTUNITY TO THE APPELLANT TO EXPLAIN THE MATTER AND WHOLE ORDER IS ARBITRARY AND AGAINST THE PRINCIPLES OF NATURE JUSTICE 8. THAT IN ANY VIEW OF THE MATTER AND ANY CASE THE ORDER UNDER APPEAL IS BAD IN LAW AND AGAINST THE CIRCUMSTANCES OF THE CASE. 9. 9. THAT THE APPELLANT CRAVES LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. ITA NO. 6696/ D EL/2016 (AGAINST ORDER UNDER SECTION 250(6) DATED 27/10/2016 FOR A.Y - 2009 - 10) 1. THAT THE LD. CIT CA) HAS SUBSTANTIALLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE IMPUGNED ORDER PASSED BY LD. ASSESSING OFFICER UNDER SECTION 154. 2. THAT THE LD. CIT CA) HAS NOT AFFORDED PROPER OPPORTUNITY TO THE APPELLANT TO EXPL AIN THE MATTER AND WHOLE ORDER IS ARBITRARY AND AGAINST THE PRINCIPLES OF NATURE JUSTICE. ITA 1977/DEL/2014 & ITA 6696/DEL/16 SH. RAM NIWAS VS. ITO, A.Y. 2009 - 10 3 3. THAT IN ANY VIEW OF THE MATTER AND ANY CASE THE ORDER UNDER APPEAL IS BAD IN LAW AND AGAINST THE CIRCUMSTANCES OF THE CASE. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GR OUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: O RIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143 ( 3 ) OF THE INCOME TAX ACT, 1961 (THE A CT ) ON 21/10/11 , AT ASSESSED INCOME OF RS. 36,16,840/ - , AS AGAINST RETURNED INCOME OF RS.1,49,600/ - . AGAINST ADDITION, ASSESSEE PREFERRED APPEAL BEFORE LD.CIT(A) WHO GAVE PARTIAL RELIEF TO ASSESSEE. UPON GIVING EFFECT TO ORDER PASSED BY LD.CIT (A), ADDITION STOOD REDUCED TO RS.24,74,600/ - . 2.1. THEREAFTER LD. AO OBSERVED THAT DURING ORIGINAL ASSESSMENT PROCEEDINGS ADDITION OF RS. 7,45,000/ - WAS MADE ON ACCOUNT OF LOANS/UNSECURE D LOANS RAISED BY ASSESSEE. LD. AO UP ON PERUSAL OF RECORDS REALISED THAT THE A DDITION WAS WRONGLY MADE AT RS. 7,45,000/ - AS AGAINST RS. 8,45,500/ - . AS THE MISTAKE WAS APPARENT FROM RECORD , NOTICE UNDER SECTION 154 OF THE ACT WAS ISSU ED TO ASSESSEE ON 03/02/15. LD. AO UPON CONSIDERING THE SUBMISSIONS OF ASSESS EE MADE AN ADDITION OF THE DIFFERENCE OF THE AMOUNT BEING RS.1,00,500/ - . 2.2. AGAINST ORDER PASSED BY LD.AO UNDER SECTION 154, ASSESSEE PREFERRED APPEALS BEFORE LD.CIT (A), WHO DISMISSED THE ASSESSEE S APPEAL. 2.3 . AGAINST THE ORDER OF LD. CIT (A) PASSED UNDER SECTION 154, ASSESSEE IS IN APPEAL BEFORE US NOW. 3. ITA NO. 6696/ D EL/2016 ALL GROUNDS RAISED BY ASSESSEE IN THIS APPEAL ARE REGARDING THE VALIDITY OF THE ORDER PASSED UNDER SECTION 154. ITA 1977/DEL/2014 & ITA 6696/DEL/16 SH. RAM NIWAS VS. ITO, A.Y. 2009 - 10 4 3.1 . LD. AR SUBMITTED THAT A SSESSING O FFICER CANNOT RECTIFY HIS ORDER WHICH HAS GOT MERGED WITH ORDER OF LD.CIT (A). HE SUBMITTED THAT ORDER PASSED UNDER SECTION 154 BY LD.AO AFTER GIVING EFFECT TO ORDER OF LD.CIT(A) IS BAD IN LAW. 3.2. ON THE CONTRARY LD.SR. DR SUBMITTED THAT TOTALLING MISTAKE IS A MISTAKE APPARENT ON RECORD , AND A SSESSING O FFICER WAS CORRECT IN RECTIFYING IT BY PASSING ORDER UNDER SECTION 154 OF THE A CT. HE PLACED RELIANCE UPON THE ORDER OF AUTHORITIES BELOW. 4. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH THE S IDES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. 5. IN OUR CONSIDERED OPINION TO THE PRESENT FACTS OF THIS CASE, AFTER GIVING EFFECT OF ORDER PASSED BY LD.CIT(A), IT WAS NOT APPROPRIATE ON THE PART OF LD.AO TO RECTIFY THE MISTAKE IN ASSESSMENT ORDER . IN OUR VIEW ONCE LD.CIT (A) PASSES FIRST APPELLATE ORDER, ASSESSMENT ORDER MERGES WITH THE SAME AND ANY RECTIFICATION THAT NEEDS TO BE CARRIED OUT IS WITHIN THE POWERS OF LD.CIT (A) IN HIS ORDER. 5.1 . THUS IN OUR CONSIDERED OPINION THOUGH THERE IS A MISTAKE APPARENT IN ASSESSMENT ORDER , PROCEEDINGS UNDER SECTION 154 INITIATED BY LD.A.O. IS BAD IN LAW. 6. ACCORDINGLY THE GROUNDS RAISED BY ASSESSEE IN THIS APPEAL STANDS ALLOWED. 7. ITA NO. 1977/ D EL/2014 P RESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST ADDITION CONFIRMED BY LD. CIT (A) IN THE QUANTUM APPEAL. 7.1 . LD.AR SUBMITTED THAT GROUND NO. 1, 2 ARE GENERAL IN NATURE AND THEREFORE DO NOT REQUIRE ANY ADJUDICATION . ITA 1977/DEL/2014 & ITA 6696/DEL/16 SH. RAM NIWAS VS. ITO, A.Y. 2009 - 10 5 7.2. GROUND NO. 3 & 5 LD.AR SUBMITTED THAT, ADDITIONAL EVIDENCES WERE FILED BEFORE LD.CIT (A) WHICH WERE ADMITTED, UPON CA LLING FOR A REMAND REPORT FROM A SSESSING O FFICER. HOWEVER , HE SUBMITTED THAT EVIDENCES FILED BY ASSESSEE WERE NOT PROPERLY APPRECIATED , AS ADDITION OF RS.20.3 LACS WAS CONFIRMED BY LD.CIT (A) ON THE BASIS THAT ASSESS EE FAILED TO SUBMIT ORIGINAL FAMILY SETTLEMENT DOCUMENT. HE SUBMITTED THAT AT THE TIME WHEN HEARING BEFORE LD.CIT (A) WAS GOING ON, SHRI. VIKRAMA YADAV IN WHOSE CUSTODY, ORIGINAL SETTLEMENT DOCUMENT WAS LYING WAS NOT TRACEABLE. SUBSEQUENTLY IT HAS BEEN SUB MITTED THAT SH. VIKRAM YADAV BY WAY OF AN AFFIDAVIT HAS CONFIRMED ORIGINAL FAMILY SETTLEMENT DOCUMENT BEING HANDED OVER TO ASSESSEE ON 20/01/14. HE SUBMITTED THAT , LD.CIT (A) WITHOUT APPRECIATING THESE EVIDENCES CONFIRMED ACTION OF LD.AO. 7.3. AT THE OUTS ET LD.AR PRAYED FOR THE ISSUE BEING SET ASIDE TO LD.AO FOR VERIFICATION OF RELEVANT DOCUMENTS , AND TO DECIDE ISSUE AFRESH AS PER LAW. 7.4. LD.SR.DR DID NOT OBJECT FOR THE ISSUE BEING SET ASIDE TO LD. AO FOR VERIFICATION AS PER LAW ON THE BASIS OF THE O RIGINAL FAMILY SETTLEMENT DOCUMENT. 7.5 . ACCORDINGLY , CONSIDERING THE SUBMISSIONS MADE BY BOTH THE SIDES, WE DIRECT LD. AO TO ADDRESS THIS ISSUE ONCE AGAIN ON THE BASIS OF THE FAMILY SETTLEMENT DEED FILED BY ASSESSEE IN ORIGINAL. LD.AO SHALL CARRY OUT AL L NECESSARY ENQUIRIES IN ORDER TO ASCERTAIN ITA 1977/DEL/2014 & ITA 6696/DEL/16 SH. RAM NIWAS VS. ITO, A.Y. 2009 - 10 6 THE CORRECTNESS OF THE DOCUMENTS AND THEN TO DECIDE THE ISSUE AS PER LAW. 7.6 ACCORDINGLY GROUND NO.3 RAISED BY ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES . 8. GROUND NO. 4 RAISED BY ASSESSEE IS REGARDI NG THE ADDITION OF A SUM OF RS.2,95, 000/ - ON ACCOUNT OF UNSECURED LOAN. 8.1 . LD.AR SUBMITTED THAT LOAN CREDITOR BEING MR.RAGHBEER SHARMA WAS RELATIVE OF ASSESSEE, A MILITARY PERSONNEL AND WAS POSTED IN SOME REMOTE AREA, BECAUSE OF WHICH ASSESSEE COULD NOT PRODUCE HIM AT THE TIME OF REMAND PROCEEDINGS. HE SUBMITTED THAT AN AFFIDAVIT ALSO COULD NOT BE PROCUR ED FROM MR.RAGHBEER SHARMA. LD.AR SUBMITTED THAT THIS ISSUE MAY ALSO BE REMANDED BACK TO LD.AO BEFORE WHOM ASSESSEE SHALL PRODUCE ALL RELEVANT DOCUMENTS OF ESTABLISHING THE CREDITWORTHINESS, GENUINITY, IDENTITY OF LOAN CREDITORS HE REIN . 8.2. LD.SR.DR DID NOT OBJECT TO THE SUBMISSIONS OF ASSESSEE. 8.3. CONSIDERING THE ABOVE THE SUBMISSIONS BY BOTH THE SIDES , WE ARE INCLINED TO SET ASIDE THIS ISSUE TO LD.AO. ASSESSEE IS DIRECTED TO PROVIDE ALL RELEVANT DETAILS REGARDING IDENTITY, CREDITWORTHINESS OF MR.RA GHBEER SHARMA, AND MOST IMPORTANTLY GENUINENESS OF THE TRANSACTION BEFORE LD.AO. LD. AO SHALL THEN VERIFY THE DETAILS FILED BY ASSESSEE AND CONSIDERED THE CLAIM OF ASSESSEE AS PER LAW. 8.4. ACCORDINGLY THIS GROUND RAISED BY ASSESSEE STANDS ALLOWED FOR STA TISTICAL PURPOSES. 9. GROUND NO. 5 IS REGARDING THE DOCUMENTS FILED BY ASSESSEE WHICH HAS NOT BEEN CONSIDERED BY LD.CIT(A) EVEN AFTER ADMITTING THE SAME WHILE DECIDING THE ISSUE. WE HAVE ALREADY DEALT WITH THE ITA 1977/DEL/2014 & ITA 6696/DEL/16 SH. RAM NIWAS VS. ITO, A.Y. 2009 - 10 7 RELEVANT DOCUMENTS RAISED BY ASSESSEE IN RELA TION TO GROUND NO. 3. AS WE HAVE ALREADY SET ASIDE THIS ISSUE TO LD.AO FOR VERIFICATION ON THE BASIS OF THE DOCUMENTS FILED BY ASSESS EE , IN OUR CONSIDERED OPINION SEPARATE ADJUDICATION ON THIS GROUND DOES NOT CALL FOR. 10. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 4 T H AUGUST, 2018. S D / - S D / - (R.S.SYAL) (BEENA A PILLAI) VICE PRESIDENT JUDICIAL MEMBER DT. 1 4 T H AUGUST, 2018 * G MV COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA 1977/DEL/2014 & ITA 6696/DEL/16 SH. RAM NIWAS VS. ITO, A.Y. 2009 - 10 8 S.NO. DETAILS DATE 1. DRAFT DICTATED ON 14.08.18 2. FINAL DRAFT PLACED BEFORE AUTHOR 14.08.18 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO THE SR. PS/PS 6. KEPT FOR PRONOUNCEMENT 7. ORDER UPLOADED ON 8. FILE SENT TO BENCH CLERK 9. DATE ON WHICH THE FILE GOES TO HEAD CLERK 10. DATE ON WHICH FILE GOES TO A.R. 11. DATE OF DISPATCH OF ORDER