Amit Aggarwal, Delhi V. ITO ward-38(2), New Delhi

ITA 6855/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1143 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 19-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CHALLENG ING DATED PASSED
• Keywords: Opportunity of being heard; Reasonable cause; Right to appeal; Set aside
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: SMC-1 NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.6855/DEL/2019 ASSESSMENT YEAR: 2011-12 SH. AMIT AGGARWAL, 117, 1 ST FLOOR, HARSH VIHAR, PITAMPURA, DELHI VS. ITO, WARD-38(2), DELHI PAN :AHAPA8853G (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE CHAL LENGING THE ORDER DATED 12/06/2019 PASSED BY THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS)-13, NEW DELHI [IN SHORT TH E LD. CIT(A)] FOR ASSESSMENT YEAR 2011-12 RAISING FOLLOWING GROUN DS: 1. THE LD. A.O. HAD MADE AN ADDITION OF RS.11,91,0 00/- AS CASH DEPOSITED AND TREATED IT AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. FURTHER, AT THE TIME OF APPELL ANT PROCEEDING WE SUBMITTED ALL THE EXPLANATION IN RESP ECT OF CASH DEPOSIT. AND ALL THE DOCUMENTS/COPY OF DEEDS PRODUC ED TO BEFORE APPELLANT BY NONE RESPONDENT BY SH. R.K. GUPTA, SR.DR DATE OF HEARING 01.07.2021 DATE OF PRONOUNCEMENT 01.07.2021 2 ITA NO.6855/DEL/2019 CIT-13 TO PROVE THE SOURCE OF CASH DEPOSITED IN THE BANK. THE CASH DEPOSITED IN THE BANK WAS OUT OF THE EARLIER C ASH WITHDRAWAL FROM THE SAVING BANK ACCOUNT. 2. THE ASSESSEE IS NRI AND RESIDING AT U.S.A SINCE 15.06.2009 AND DOING MEDICAL PRACTICE, THEREFORE HE COULD NOT GET INFORMED. IN THE MONTH OF DECEMBER 2018, WHEN HE VISITED TO INDIA ON THE OCCASION OF FAMILY FUNCTION HE GOT ABOUT THE NOTICES AND ORD ER. IN THIS RESPECT A.R. SUBMITTED COPY OF PASSPORT AND VISA FO R CONFIRMATION THE STATUS OF APPELLANT 3. IT IS BRING TO YOUR KIND NOTICE THAT BEFORE CIT -13 NEVER RAISED ANY QUERY REGARDING ADDRESS OF THE APPELLANT AND HIS MO THERS CURRENT ADDRESS NOR GIVEN ANY OPPORTUNITY OF BEING HEARD TO APPELLANT. FURTHER WE WOULD LIKE TO YOUR KIND ATTENTION HIS MO THER HAD NOT ANY INFORMATION REGARDING NOTICES AS SHE WAS NOT RE SIDING ON SAID ADDRESS IN THE ORDER. THE CURRENT ADDRESS OF THE AP PELLANTS MOTHER IS 117, 1ST FLOOR, HARSH VIHAR, PITAMPURA, D ELHI-110034 AND THE SAME ADDRESS AS PROOF OF RESIDENT ADDRESS I S MENTIONED ON PASSPORT. 4. THE APPELLANT HAVE ALL THE INFORMATION AND CAN PROVIDE THE REQUIRED INFORMATIONS/DOCUMENTS. 5. THE APPELLANT CRAVES TO ADD OR AMEND ANY GROUND S OF APPEAL. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSES SEE IS A NON-RESIDENT INDIAN AND PERMANENT RESIDENT OF UNITE D STATES OF AMERICA (USA) AND WORKING AS A PROFESSIONAL DOCTOR. ON THE BASIS OF THE ANNUAL INFORMATION RETURN (AIR), A CASH DEPO SIT OF 11,91,500/- DURING FINANCIAL YEAR 2010-11 RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION, I.E., AY 2011- 12 WAS OBSERVED IN THE BANK ACCOUNT MAINTAINED BY THE ASSE SSEE WITH ICICI BANK. ACCORDING TO THE ASSESSING OFFICER, NO RETURN OF INCOME WAS FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, THEREFORE, HE REOPENED THE ASSESSMENT BY VIEW OF IS SUE NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 (IN S HORT THE ACT) ON 19/03/2018. IN VIEW OF NO COMPLIANCE ON THE PART OF THE ASSESSEE, THE ASSESSING OFFICER COMPLETED ASSESSMEN T ON THE BASIS OF THE AVAILABLE MATERIAL IN TERMS OF SECTION 144 (I.E. BEST JUDGMENT ASSESSMENT) OF THE ACT AFTER MAKING ADDITI ON OF RS. 3 ITA NO.6855/DEL/2019 11,91,000/-. THE ASSESSEE FILED APPEAL BEFORE THE L EARNED CIT(A) AND CONTESTED THE ADDITION. THE LEARNED CIT(A) OBSE RVED THAT NOTICES WERE SERVED BY THE ASSESSING OFFICER AT THE SAME VARY ADDRESS, WHICH WAS MENTIONED IN FORM NO. 35 I.E. T HE PRESCRIBED FORMAT IN WHICH APPEAL WAS FILED BEFORE THE LEARNED CIT(A), AND THE ASSESSEE HAD SELECTIVELY NOT APPEARED BEFORE TH E ASSESSING OFFICER, THEREFORE, SHE UPHELD THE DISALLOWANCE. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LEARN ED DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 4. WE HAVE HEARD SUBMISSION OF THE LEARNED DEPARTMENT AL REPRESENTATIVE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED CIT(A) HAS RECORDED THAT THE ASSESSEE IS A NON-RESIDENT INDIAN AND ASSESSMENT HAS BEEN COMPLETED IN EXPERTL Y MANNER DUE TO NON-COMPLIANCE ON THE PART OF THE ASSESSEE. SHE HAS MENTIONED THAT FOR FIRST APPELLATE PROCEEDINGS, THE ASSESSEE HAD GIVEN A GENERAL POWER OF THE ATTORNEY IN FAVOUR OF HIS MOTHER SMT. SUDHA AAGRWAL. THE LEARNED CIT(A) OBSERVED THAT ADD RESS IN THE PRESCRIBED FORMAT FOR FILING APPEAL IS SAME, ON WHI CH NOTICES WERE SENT BY THE ASSESSING OFFICER. ACCORDING TO HER, TH ERE WAS NO REASONABLE CAUSE AS WHY THE NOTICES WERE NOT RESPON DED TO. THE LEARNED CIT(A) HELD THAT SELECTIVE COMPLIANCE TO ASSERT AND ENJOY ONES RIGHT OF APPEAL WHILE AVOIDING SCRUTINY PROCE EDING WILLFULLY, IS NOT THE INTENT OF THE LAW AND CANNOT BE INCREASED . ACCORDINGLY, CONFIRMED THE ADDITION. THIS ACTION OF LD. CIT(A) I S NOT JUSTIFIED. SHE HAS ALREADY OBSERVED THAT ASSESSEE IS NON-RESID ENT INDIAN AND REPRESENTED BY HER ELDERLY MOTHER. IF BY ANY RE ASON, THE ASSESSEE, WHO IS A NON-RESIDENT, COULD NOT BE REPRE SENTED BEFORE THE ASSESSING OFFICER, IT IS THE DUTY OF THE LEARNE D FIRST APPELLATE 4 ITA NO.6855/DEL/2019 AUTHORITY TO CONSIDER THE DOCUMENTS FILED IN TERMS OF RULE 46A OF INCOME-TAX RULES, 1962 (IN SHORT THE RULES) AND D ECIDE THE APPEAL ON MERIT RATHER THAN DISMISSING WITHOUT DECI DING THE ISSUE-IN-DISPUTE. THE ASSESSEE HAS NOT BEEN REPRESE NTED BEFORE US, HOWEVER, IN THE INTEREST OF SUBSTANTIAL JUSTICE , WE SET ASIDE THE FINDING OF THE LEARNED CIT(A), AND RESTORE THE MATT ER BACK FOR DECIDING AFRESH ON MERIT. IT IS NEEDLESS TO MENTION THAT BOTH THE ASSESSEE AS WELL AS ASSESSING OFFICER SHALL BE AFFO RDED ADEQUATE OPPORTUNITY OF BEING HEARD. THE GROUNDS OF APPEAL A CCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1ST JULY, 202 1. SD/- SD/- (KUL BHARAT) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 ST JULY, 2021. RK/- (DTDC) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI