Sh.Rajinder Mittal, Chandigarh V. DCIT, Chandigarh

ITA 675/CHANDI/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5377 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 17-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Unexplained cash credit; Unexplained expenditure; Corroborative evidences; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH B, CHANDIGARH BEFORE MS.DIVA SINGH, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.675/CHD/2017 (ASSESSMENT YEAR : 2006-07) ITA NO.676/CHD/2017 (ASSESSMENT YEAR : 2009-10) & ITA NO.677/CHD/2017 (ASSESSMENT YEAR : 2009-10) SH.RAJINDER MITTAL, VS. THE D.C.I.T., H.NO.666, SECTOR 21, CENTRAL CIRCLE-II, CHANDIGARH. CHANDIGARH. PAN: ABJPM7932R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SACHIN JAIN, ADV. RESPONDENT BY : SHRI MANJIT SINGH, SR.DR DATE OF HEARING : 02.01.2018 DATE OF PRONOUNCEMENT : 08.01.2018 ORDER PER BENCH : ALL THE ABOVE APPEALS FILED BY THE SAME ASSESSEE HA VE BEEN PREFERRED AGAINST SEPARATE ORDERS PASSED BY T HE LD. COMMISSIONER OF INCOME TAX(APPEALS)-3, GURGAON (HEREINAFTER REFERRED TO AS CIT(APPEALS)) ALL DAT ED 28.2.2017 RELATING TO ASSESSMENT YEARS 2006-07, 200 9-10 AND 2009-10 RESPECTIVELY, AND PASSED IN APPEAL AGA INST ORDERS PASSED U/S 271(1)(C) IN ITA NO.675 & 676/CH D/2017 & U/S 271AAA OF THE INCOME TAX ACT, 1961 IN ITA NO.677/CHD/2017. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IN ALL THE AB OVE APPEALS WAS AGAINST THE DISMISSAL OF THE APPEALS BY THE 2 CIT(APPEALS) BY NOT CONDONING THE DELAY IN FILING T HE SAID APPEALS BEFORE HIM. SINCE COMMON ARGUMENTS WERE ADVANCED BY THE ASSESSEE FOR ALL THE APPEALS, THEY ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. FO R THE SAKE OF CONVENIENCE, WE SHALL BE DEALING WITH THE FACTS IN THE APPEAL OF THE REVENUE IN ITA NO.675/CHD/2017 FOR ASSESSMENT YEAR 2006-07 AND THE DECISION RENDERED T HEREIN SHALL APPLY MUTATIS MUTANDIS TO ITA NO.676/CHD/2017 AND 677/CHD/2017 FOR ASSESSMENT YEAR 2009-10. ITA NO.675/CHD/2017 (A.Y. 2006-07): 3. BRIEFLY STATED, SEARCH OPERATION U/S 132(1) OF T HE ACT WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE AS SESSEE ON 16.1.2009. THEREAFTER ASSESSMENT U/S 153A(1)(B) R.W.S. 143(3) OF THE ACT WAS FRAMED, MAKING ADDITIO N ON ACCOUNT OF FOLLOWING UNEXPLAINED CASH CREDITS: A) UNEXPLAINED CASH DEPOSITED IN TWO BANK ACCOUNTS = RS.8,70,000/- B) LOAN TAKEN THE GENUINENESS AND CREDITWORTHINESS OF WHICH REMAINED UNEXPLAINED = RS.5,00,000/- TOTAL = RS.13,70,000/- 4. FURTHER ADDITION WAS ALSO MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE OF THE FOLLOWING NATURE: A) UNEXPLAINED EXPENDITURE PERTAINING TO VISIT UNDERTAKEN BY THE ASSESSEE TO PAKISTAN = RS.20,000/- B) UNEXPLAINED EXPENDITURE PERTAINING TO CASH EXPENSES INCURRED ON ACCOUNT OF STAMP DUTY AND OTHER REGISTRATION EXPENSES IN RESPECT OF PURCHASE OF A LAND. = RS.31,100/- C) UNEXPLAINED EXPENDITURE WITH REGARD TO SOURCE OF CASH EXPENSES 3 PERTAINING LAND PURCHASED AT VILLAGE DHAKOLI. =RS.1,63,400/- TOTAL =RS.2,14,500/- 5. THUS TOTAL ADDITION TO THE TUNE OF RS.15,84,500 /- WAS MADE TO THE INCOME OF THE ASSESSEE. THE MATTER WAS CARRIED IN APPEAL BEFORE THE CIT(APPEALS), WHO REST RICTED THE ADDITION MADE TO THE EXTENT OF RS.15,53,400/-. SUBSEQUENTLY, PENALTY PROCEEDINGS WERE INITIATED ON THE ADDITIONS UPHELD AND PENALTY LEVIED TO THE EXTENT O F THE TAX ON THE CONCEALED INCOME, AMOUNTING TO RS.4,74,2 85/-. 6. AGGRIEVED BY THE SAME, THE ASSESSEE FILED AN APP EAL BEFORE THE LD.CIT(APPEALS). THE LD.CIT(APPEALS) NOT ED THAT THE APPEAL WAS FILED DELAYED. HE FOUND THAT WHILE PENALTY ORDER WAS PASSED ON 23.3.2015 AND RECEIVED BY THE ASSESSEE ON 30.3.2015, THE APPEAL WAS FILED BY THE ASSESSEE ON 10.11.2015. THE LD.CIT(APPEALS) FOUND THAT THE ASSESSEE HAD PLEADED FOR CONDONING THE DELAY IN FILING OF THE APPEAL SINCE THE ASSESSEE WAS UNDERGOING MED ICAL TREATMENT. THE LD.CIT(APPEALS) REJECTED THE ASSESS EES APPLICATION FOR CONDONATION OF DELAY, FOR THE REASO N THAT NO EVIDENCE FOR HIS MEDICAL TREATMENT WAS FILED ALO NGWITH THE APPEAL AND FURTHER THAT EVEN DURING APPELLATE PROCEEDINGS NO MEDICAL CERTIFICATE HAD BEEN PRODUCE D TO SUPPORT THE PETITION FOR CONDONATION OF DELAY. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED. 7. BEFORE US, THE LD. COUNSEL FOR ASSESSEE CONTENDE D THAT ALL EVIDENCES PERTAINING TO THE MEDICAL TREATM ENT 4 WHICH WAS BEING TAKEN BY THE ASSESSEE WAS FILED ALO NGWITH APPEAL FILED BY THE ASSESSEE. THE LD. COUNSEL FOR ASSESSEE DREW OUR ATTENTION TO THE RELEVANT DOCUMENTS FILED AT PAPER BOOK PAGE NOS.22 TO 36. THE LD. COUNSEL FOR ASSESSEE, THEREFORE, STATED THAT THE FINDING OF THE LD.CIT(APPEALS) THAT NO EVIDENCE HAD BEEN FILED IN SUPPORT OF THE MEDICAL TREATMENT WAS UNTENABLE. THE LD. CO UNSEL FOR ASSESSEE FURTHER POINTED OUT THAT THE APPEALS O F THE ASSESSEE PERTAINING TO ASSESSMENT YEARS 2005-06 AND 2007-08 WERE ALSO FILED ON THE SAME DATE AS THE PR ESENT APPEAL, I.E. 11.11.2015 AND WERE ALSO DELAYED FOR I DENTICAL REASONS AND WERE ACCOMPANIED WITH A SIMILAR APPLI CATION FOR CONDONATION OF DELAY ALONGWITH EVIDENCE OF MEDI CAL TREATMENT BEING UNDERTAKEN BY THE ASSESSEE. THE LD. COUNSEL FOR ASSESSEE DREW OUR ATTENTION TO THE FAC T THAT THE APPEALS FOR THOSE YEARS WERE DISPOSED OFF BY T HE LD.CIT(A) BY PASSING A DETAILED ORDER DEALING WITH THE GROUNDS RAISED BY THE ASSESSEE. LD COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO FORM NO.35 PERTAININ G TO THOSE YEARS PLACED AT PAPER BOOK PAGE NO.1-10 AND T HE CIT(A) ORDERS FOR THE SAID YEARS PLACED AT PAPER BO OK PAGE NOS.11 TO 21. THE LD. COUNSEL FOR ASSESSEE, THEREF ORE, STATED THAT THE LD.CIT(APPEALS) HAD CONDONED THE DE LAY IN THOSE YEARS AND, THEREFORE, THERE WAS NO REASON FOR NOT CONDONING THE DELAY IN THE IMPUGNED YEAR ON IDENTIC AL SET OF FACTS AND CIRCUMSTANCES. HE THEREFORE PLEADED TH AT THE ISSUE BE SENT BACK TO THE CIT(A) FOR RECONSIDERING THE APPLICATION FOR CONDONATION OF DELAY. 5 8. THE LD. DR DID NOT CONTROVERT THE ABOVE FACTS PO INTED OUT BY THE LD.COUNSEL FOR THE ASSESSEE. 9. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE OBJ ECTIONS OF THE CIT(APPEALS) THAT SUPPORTING EVIDENCE HAS NOT B EEN FILED IN REGARD TO THE CLAIM OF MEDICAL TREATMENT IN ORDE R TO ADDRESS THE CONDONATION OF DELAY APPLICATION BEFOR E THE CIT(APPEALS) IS NOT CORRECT ON FACTS. THE LD. COUNS EL FOR ASSESSEE HAS STATED THAT CONSIDERING IDENTICAL FACT S IN TWO OTHER APPEALS IN THE CASE OF THE ASSESSEE ITSELF ID ENTICAL MEDICAL EVIDENCE HAS BEEN RELIED UPON AND CONSIDERI NG WHICH THE FACT THE CIT(APPEALS) HAS PASSED ORDERS O N MERIT ALLOWING THE APPEAL. COPIES OF THESE ORDERS HAVE BE EN FILED. WE NOTE ON A READING FROM THESE ORDERS THAT THERE I S NO DISCUSSION BY THE CIT(APPEALS) ON THE ASPECT OF DEL AY. THUS WHETHER THE DELAY WAS NOTICED BY THE CIT(APPEALS) I N THE RESPECTIVE ORDERS OR NOT IS NOT EVIDENT FROM THE BO DY OF THE ORDER. HOWEVER WE ARE CONSCIOUS OF THE FACT THAT IN THE PECULIAR FACTS THE PRESUMPTION OF THE ASSESSEE THAT ON CONSIDERING SIMILAR EVIDENCES THE APPEAL HAS BEEN D ECIDED ON MERITS WITHOUT A DISCUSSION ON THE DELAY ACCORDI NGLY THE DELAY CAN BE SAID TO HAVE BEEN CONDONED, CANNOT BE SAID TO BE WITHOUT ANY BASIS. NOTWITHSTANDING THE ABOVE WE ARE OF THE VIEW THAT IN THE FACTS OF THE PRESENT CASE DELA Y HAS BEEN NOTED, THE EVIDENCES IN SUPPORT OF THE CLAIM HAD BE EN MADE AVAILABLE ON RECORD BEFORE THE CIT(APPEALS) BY THE ASSESSEE. IN THESE PECULIAR FACTS AND CIRCUMSTANCES THE MECHA NICAL FINDING ARRIVED AT BY THE CIT(APPEALS) THAT THE SUP PORTING 6 EVIDENCES ARE NOT AVAILABLE ON RECORD IS FOUND TO B E INCORRECT. ACCORDINGLY, ACCEPTING THE PRAYER, THE I MPUGNED ORDERS ARE SET ASIDE BACK TO THE FILE OF THE CIT(AP PEALS) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORD ANCE WITH LAW CONSIDERING THE EVIDENCES FILED IN SUPPORT OF T HE CLAIM. IN CASE THE EVIDENCES FILED ARE NOT FOUND BE SUFFIC IENT AND COMPLETE THE ASSESSEE IS PERMITTED TO FILE ANY ADDI TIONAL EVIDENCES IT MAY SEEK TO FILE IN ORDER TO SUPPORT I TS CLAIM. 10. THE APPEAL OF THE ASSESSEE IS, THEREFORE, ALLOW ED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DIVA SINGH) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 8 TH JANUARY, 2018 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)S 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH