ITO, New Delhi V. Sh. Amit Aggarwal, New Delhi

ITA 6746/DEL/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1268 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2005-2006
• Appeal Filed On: 22-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Reassessment proceedings
• Section: 143(1); 148

Judgement Text

1 ITA NO. 6746/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI G. D. AGRAWAL, VICE PRESID ENT AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A. NO. 6746/DEL/2 015 (A.Y 2005-06) ITO WARD 61(1) NEW DELHI. (APPELLANT) VS AMIT AGGARWAL QD-43, GROUND FLOOR, NEAR TV TOWER, PITAM PURA, NEW DELHI. PAN NO. AAEPA6326P (RESPONDENT) C.O. NO. 182/ DEL/2018 AMIT AGGARWAL QD-43, GROUND FLOOR, NEAR TV TOWER, PITAM PURA, NEW DELHI. PAN NO. AAEPA6326P (APPELLANT) VS ITO WARD 61(1) NEW DELHI. (RESPONDENT) APPELLANT BY SH. AMIT KATOCH, SR. DR RESPONDENT BY SH. B.L. GUPTA, ADV. SH. AMIT AGGARWAL, SELF ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 27.10.2015 PASSED BY THE CIT(APPEALS)-20, NEW DELHI FOR AY 200 5-06. GROUNDS OF APPEAL ARE AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN DELETING THE FOLLOWING ADDITIONS: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING ADDITIONAL EVIDENCE UNDER RULE 46 A OF THE I.T. RULES, 1962, WITHOUT CONSIDERING THE FACT THAT PROPER AND DATE OF HEARING 03.06.2019 DATE OF PRONOUNCEMENT 04.06.2019 2 ITA NO. 6746/DEL/2015 ADEQUATE OPPORTUNITIES WERE PROVIDED TO THE ASSESSE E BY THE ASSESSING OFFICER TO PRODUCE DETAILS AND EVIDENCE D URING THE REASSESSMENT PROCEEDINGS. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 40,00,000/- O N ACCOUNT OF PURCHASE OF OFFICE PREMISES. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 10,00,000/- O N ACCOUNT OF RENOVATION OF OFFICE. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 4,80,000/- ON ACCOUNT OF SALARY FROM M/S GALAXY TOYOTA LTD. 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 4,80,000/- ON ACCOUNT OF INCOME FROM PRIVATE PRACTICES. 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 16,00,000/- O N ACCOUNT OF INVESTMENT IN SHARES OF M/S PRAVEEN TOBACCO CO. PVT . LTD. 7. THAT THE APPELLANT, CRAVES, LEAVE TO ADD, AMEND OR MODIFY THE GROUND(S) OF THE APPEAL AT ANY TIME. 2. THE ASSESSEE IS A CHARTERED ACCOUNTANT AND FILED HIS REGULAR RETURN OF INCOME FOR AY 2005-06 ON 29.10.2005 DECLARING AN IN COME OF RS. 93,890/- AND THE SAME WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961. TAX EVASION PETITION WAS RECEIVED ON 20.03.2012 BY THE REVENUE. ACCORDINGLY, NOTICE U/S 148 OF THE INCOME-TAX ACT DATED 23.03.2012 WAS ISSU ED AND SERVED UPON THE ASSESSEE. THE ASSESSEE SUBMITTED BEFORE THE ASSESS ING OFFICER FOR PROVIDING OF REASONS FOR REOPENING THE CASE, BUT DID NOT RECEIVE THE SAME FROM THE REVENUE. THE ASSESSING OFFICER MADE AN ADDITION OF RS. 75,99 ,300/-. 3. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) PARTLY ALLOWED THE APPEAL O F THE ASSESSEE. 4. LD. DR SUBMITTED THAT THE CIT(A) ERRED IN ALLOWI NG ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES, 1962 WITHOU T CONSIDERING THE FACT THAT PROPER AND ADEQUATE OPPORTUNITIES WERE PROVIDE D TO THE ASSESSEE BY THE ASSESSING OFFICER TO PRODUCE DETAILS AND EVIDENCE D URING THE REASSESSMENT PROCEEDINGS. THE LD. DR FURTHER SUBMITTED THAT THE DELETION OF VARIOUS 3 ITA NO. 6746/DEL/2015 ADDITIONS WAS ALSO NOT CORRECT ON THE PART OF THE C IT(A). THUS, THE LD. DR RELIED UPON THE ASSESSMENT ORDER. 5. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER HAS NOT PROVIDED ADEQUATE OPPORTUNITY TO THE ASSESSEE DURING THE ASS ESSMENT PROCEEDINGS. THEREFORE, THE CIT(A) HAS RIGHTLY ADMITTED THE ADDI TIONAL EVIDENCE FILED UNDER RULE 46A. THE LD. AR SUBMITTED THAT THE ASSESSEE H AS DEMONSTRATED THE EVIDENCE IN CONSONANCE WITH THE ADDITIONS MADE BY T HE ASSESSING OFFICER AND PLEADED BEFORE THE CIT(A) TO DELETE THOSE ADDITIONS . THE CIT(A) HAS ALSO CALLED FOR REMAND REPORT, WHEREIN THE ASSESSING OFFICER HA S JUSTIFIED THE ADDITIONS MADE IN THE ASSESSMENT ORDER WITHOUT TAKING INTO AC COUNT THE EVIDENCES PRODUCED BEFORE THE CIT(A). THE LD. AR SUBMITTED T HAT THE CROSS OBJECTION FILED BY THE ASSESSEE IS NOT PRESSED AT THIS JUNCTURE. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE MATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE ASSESSMENT ORDER A ND ORDER OF THE CIT(A), IT CAN BE SEEN THAT THE ASSESSING OFFICER RECEIVED A T AX EVASION PETITION WITH CERTAIN DETAILS AND AFTER CONSIDERING THE SAME MADE ADDITION WITHOUT GIVING PROPER OPPORTUNITY TO ASSESSEE TO PRODUCE EVIDENCE DURING ASSESSMENT PROCEEDINGS. DURING THE ASSESSMENT PROCEEDINGS, DE SPITE ASKING FOR THE REASONS FOR REOPENING U/S 148 THE ASSESSING OFFICER HAS NOT PROVIDED THE REASONS FOR REOPENING. BECAUSE OF THIS, THE ASSESS EE COULD NOT REPRESENT HIS OWN CASE PROPERLY BEFORE THE ASSESSING OFFICER AND HAS NOT BEEN GIVEN PROPER OPPORTUNITY BY THE ASSESSING OFFICER. THE CIT(A) R IGHTLY PROCEEDED ON THE BASIS OF MERIT OF THE CASE OF THE ASSESSEE AFTER TAKING I NTO CONSIDERATION THE REMAND REPORT. THUS, GROUND NO. 1 OF THE REVENUE APPEAL I S DISMISSED. AS REGARDS GROUND NO. 2 THE CIT(A) RIGHTLY OBSERVED THAT REVEN UE HAS FAILED TO PROVE THAT THE PROPERTY BELONGS TO THE ASSESSEE FOR WHICH ADDI TION OF RS. 40 LAKHS WAS MADE BY THE ASSESSING OFFICER. THERE IS NO REASON GIVEN BY THE ASSESSING OFFICER AS TO WHY THE SAME ADDITION HAS BEEN MADE. THEREFORE, GROUND NO. 2 OF THE REVENUE APPEAL IS DISMISSED. AS REGARDS GROUND NO. 3 THE CIT(A) RIGHTLY 4 ITA NO. 6746/DEL/2015 OBSERVED THAT THE EXISTENCE OF THE OFFICE AND ITS O WNERSHIP ITSELF IS NOT PROVED BY THE REVENUE, THEREFORE, THE QUESTION OF EXPENSES OF RENOVATION OF SUCH OFFICE PREMISES DOES NOT ARISE. THUS, GROUND NO. 3 IS DIS MISSED. AS REGARDS GROUND NO. 4 ON ACCOUNT OF SALARY FROM M/S GALAXY TOYOTA L IMITED THE REVENUE COULD NOT ESTABLISH THAT THE ASSESSEE WAS AN EMPLOYEE OF THE SAID COMPANY AND WAS GETTING ANY SALARY/COMMISSION OR ANY OTHER PAYMENT. THEREFORE, CIT(A) RIGHTLY DELETED THIS ADDITION. GROUND NO. 4 IS DISMISSED. AS REGARDS GROUND NO. 5, ADDITION ON ACCOUNT OF INCOME FROM PRIVATE PRACTICE S THE ASSESSING OFFICER HAS NOT GIVEN ANY CLEAR FINDING AS TO HOW THE SAME ADDI TION HAS BEEN DONE. THE CIT(A) RIGHTLY REJECTED THE SAME. GROUND NO. 5 IS DISMISSED. AS REGARDS GROUND NO. 6 ON ACCOUNT OF INVESTMENT IN SHARES OF M/S PRAVEEN TOBACCO COMPANY PVT. LTD. THE ASSESSEE FILED DETAILS IN RES PECT OF THE SHAREHOLDER WHO HAPPENS TO BE THE SON OF SHRI ROSHAN LAL AGGARWAL, WHEREAS THE ASSESSEE IS A SON OF SHRI B.M. AGGARWAL. THEREFORE, THE VERY FOU NDATION OF THE ADDITION MADE BY THE ASSESSING OFFICER IS WITHOUT ANY VERIFICATIO N AND IS RIGHTLY REJECTED BY THE CIT(A). GROUND NO. 6 IS DISMISSED. AS REGARDS TO C ROSS OBJECTION FILED BY THE ASSESSEE IS NOT PRESSED, HENCE THE SAME IS DISMISSE D. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALSO DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH JUNE, 2019 . SD/- SD/- (G. D. AGRAWAL) (SUCHITRA KAMBLE) VICE PRESIDENT JUDICIAL MEMBER DATED: 04/06/2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY 5 ITA NO. 6746/DEL/2015 ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 03.06.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 03.06.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 0 4 . 0 6 . 1 9 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 0 4 . 0 6 . 1 9 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 0 4 . 0 6 . 1 9 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 0 4 . 0 6 . 1 9 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 0 4 . 0 6 . 1 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK