Arun Kumar Yadav, Ghaziabad V. ITO, Ward-1(1), Ghaziabad

ITA 67/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8440 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 04-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI
• Keywords: Unexplained investment; Gift; Opportunity of being heard; Set aside
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 67/DEL/2019 ASSESSMENT YEAR: 2010-11 ARUN KUMAR YADAV, VS. ITO, WARD 1(1), C/O SARASWATI LEGAL PROFESSIONALS GHAZIABAD PVT. LTD. S-48, C-BLOCK, BEHIND ANDHRA BANK, SHALIMAR GARDEN EXTENSION-II, SAHIBABAD, GHAZIBAD UTTAR PRADESH 201005 (PAN: ABQPY1994G) (ASSESSEE) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MS. EKTA VISHNOI, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 16.8.2018 PASSED BY THE LD. CIT(A), GHAZIABAD RELATING TO ASS ESSMENT YEAR 2010- 11 ON THE FOLLOWING GROUNDS:- 1. THAT AFTER HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS WAS NOT DELETING THE ADDITION O F RS. 10,48,000/-. 2. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE, THE ACTION OF LD. CIT(A) IN NOT REVERSING THE ACTION O F AO IN MAKING IMPUGNED ADDITION OF RS. 10,48,000/- IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO WAS NOT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE AT THE TIME OF 2 HEARING AGAINST THE PROVISION OF INCOME TAX ACT, 1961. 4. THAT THE APPLICANT CRAVES THE LEAVE TO ADD AMEND, MODIFY, DELETE ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIMES OF HEARING AND ALL THE ABOVE GROUNDS A RE WITHOUT PREJUDICE TO EACH OTHER. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY THE LD. DR, HENCE, THE SAME ARE NOT REPEATED HERE FOR T HE SAKE OF BREVITY. 3. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT . KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, I AM OF THE VIEW TH AT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE ASSESSEE, THEREFORE, I AM DECIDING THE PRESENT APPE AL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 4. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE LD. DR AND PERUSED THE RECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. I FIND THAT AO HAS OBSERVED THAT THE CASH DEPOSITED TO THE SAVINGS BANK ACCOUNT MAINT AINED WITH UNION BANK OF INDIA WAS TREATED AS THE CASH DEPOSITED FROM THE PAST SAVINGS AND PREVIOUS WITHDRAWALS AND THE CASH DEPOSIT OF RS. 1 0,48,000/- OUT OF RS. 13,77,000/- TO THE SAVINGS BANK ACCOUNT MAINTAINED WITH KOTAK MAHINDRA BANK WAS AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE, WHICH WAS ADDED TO HIS INCOME UNDER THE PROVISION OF SECT ION 69 OF THE ACT. HOWEVER, IT IS NOTED THAT DURING THE COURSE OF APP ELLATE PROCEEDINGS IT HAS BEEN SUBMITTED THAT RS. 9,48,000/- HAS BEEN DEP OSITED BY TAKING GIFT FROM MOTHER OF THE ASSESSEE WHO IN TURN SOLD THE PR OPERTY FOR CASH CONSIDERATION AND ASSESSEE FILED THE COPY OF AN AFF IDAVIT DATED 15.12.2017 3 IN SUPPORT OF THE SAME CONTENTION. LD. CIT(A) ALS O NOTED THAT AFFIDAVIT HAS BEEN MADE IN 2017 WHEREAS THE CASH HAS BEEN DEP OSITED IN FY 2009- 10 AND NO DATE OF PAYMENT OF RS. 6,40,000/- AND RS. 3,08,000/- HAS BEEN GIVEN IN THE AFFIDAVIT TO VERIFY THE GENUINENESS OF THE ASSESSEES CLAIM AND NO ITR HAS BEEN FILED BY THE ASSESSEES MOTHER, HE NCE, LD. CIT(A) UPHELD THE ACTION OF THE AO. AFTER PERUSING THE AFORESAID FINDINGS OF THE LOWER AUTHORITIES, I FIND THAT THERE IS CONTRADICTION BET WEEN THE FINDINGS OF THE LOWER AUTHORITIES, THEREFORE, IN MY CONSIDERED OPI NION, THE ISSUE NEEDS TO BE THOROUGHLY EXAMINED AFRESH AT THE LEVEL OF THE A O TO VERIFY THE GENUINENESS OF THE ASSESSEES CLAIM AND OTHER RELAT ED EVIDENCES/DOCUMENTS. ACCORDINGLY, I SET ASIDE THE I SSUE IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTIONS TO DECIDE THE IS SUE IN DISPUTE AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ASSESSEE IS DIRECTED TO FILE ANY OTHER EVIDENCES W ITH THE AO AT THE TIME OF PROCEEDINGS TO SUBSTANTIATE HIS CASE AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND FULLY COOPERATE WITH HIM. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 11/10/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 11/10/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES