Jaipal Chandra Rastogi, Delhi V. ITO, Ward-59(3), New Delhi

ITA 6856/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3599 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 15-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMPOORANANAND
• Assessee Lawyers: PARVESH SHARMA S; SHASI M KAPILA
• Keywords: Search and seizure; Opportunity of being heard; Additional evidence
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO.6856/DEL/2017 A.Y. : 2011-12 SH. JAIPAL CHANDRA RASTOGI, 4D, DDA FLATS, NIRMAN VIHAR, DELHI 110 092 (PAN: AAEPR3091A) VS. ITO, WARD 59(3), NEW DELHI (ASSESSEE) (RESPONDENT) ASSESSEE BY : MS. SHASI M. KAPILA & SH. PARVESH SHARMA, ADVOCATES REVENUE BY : SH. SAMPOORANANAND, SR. DR ORDER THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUG NED ORDER DATED 10.8.2017 OF THE LD. CIT(A)-19, NEW DELHI RELE VANT TO ASSESSMENT YEAR 2011-12. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS BY UPHOLDING THE WHOLLY UNWARRANTED ADDITION OF RS. 13 LACS ON THE BASIS OF PIECE OF PAPER FOUND DURING THE SEARCH AND SEIZURE OPERATIONS OF BSBK GROUP WITHOUT ANY CORROBORATIVE EVIDENCE / MATERIAL TO SUPPORT THE SAME. 2 2. THE LD. CIT(A) ERRED IN LAW IN UPHOLDING THE IMPUGNED ADDITION OF RS. 13 LACS ON THE PRESUMPTION THAT THESE PERTAINED TO THE APPELLANT WITH ANY SUPPORTING MATERIAL. 3. THE LD. CIT(A) HAS ERRED IN LAW BY REFUSING TO ADMIT EVIDENCES WHICH SUPPORTED THE COST OF THE FLAT. 4. THE LD. CIT(A) HAS ERRED IN LAW BY REFUSING TO ADMIT EVIDENCE WHICH DEMONSTRATED THAT THE COST OF THE FLAT WAS THE SAME IN OTHER CASES TOO. 5. THE LD. CIT(A) ERRED IN CONFIRMING THE INTEREST LEVIED U/S. 234B & 234C OF THE ACT. 6. THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO ONE ANOTHER AND THE APPELLANT CRAVES LEAVE TO ADD/AMEND / DELETE ANY GROUNDS TAKEN ABOVE AT THE TIME OF HEARING. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED H ERE FOR THE SAKE OF BREVITY. 4. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSE E HAS STATED THAT AO HAS MADE THE ADDITION IN DISPUTE ON THE BASIS O F A PIECE OF PAPER FOUND DURING THE SEARCH AND SEIZURE OPERATION OF BSBK GROUP WITHOUT CONFRONTING THE SAME TO THE ASSESSEE. SHE F URTHER STATED 3 THAT AO HAS COMPLETED THE ASSESSMENT IN A HURRY MANNER AND HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTI ATING THE CLAIM. SHE ALSO SUBMITTED THAT SIMILARLY THE LD. FIRST APPELLATE AUTHORITY HAS ALSO PASSED THE IMPUGNED ORDER WITHOUT ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE ALONGWIT H THE APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962. SHE F URTHER STATED THAT ASSESSEE HAS FILED ALL THE NECESSARY DOCUMENTARY EVIDENCES FOR SUBSTANTIATING THE CLAIM IN DISPUTE BEFORE THE LD. C IT(A), BUT THE LD. CIT(A) HAS NOT PASSED ANY ORDER ON THE SAME. SHE AL SO STATED THAT THE ASSESSEE IS HAVING ALL THE EVIDENCES FOR SUBSTAN TIATING HIS CLAIM AND SOME OF THE EVIDENCES, SHE HAS ALREADY FI LED BEFORE THE LD. CIT(A) ALONGWITH THE APPLICATION UNDER RULE 46A AN D THEREFORE SHE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE AO TO DECIDE THE SAME AFRESH, AFTER CONSIDERING ALL THE E VIDENCES FILED BY THE ASSESSEE AND GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED RECORDS , ESPECIALLY THE IMPUGNED ORDER. I FIND THAT AO HAS MADE THE ADDITIO N IN DISPUTE ON THE BASIS OF A PIECE OF PAPER FOUND DURING THE S EARCH AND SEIZURE OPERATION OF BSBK GROUP WITHOUT CONFRONTING TH E SAME TO 4 THE ASSESSEE AND PASSED THE ASSESSMENT ORDER WITHOUT G IVING ADEQUATE OPPORTUNITY OF BEING HEARD. I FURTHER NOTE THA T SIMILARLY THE LD. FIRST APPELLATE AUTHORITY HAS ALSO PASSED THE I MPUGNED ORDER WITHOUT ADMITTING THE ADDITIONAL EVIDENCES FILED UNDER RULE 46A OF THE INCOME TAX RULES, 1962 AND EVEN NOT COMMENTED UPO N THE COPY OF THE AGREEMENT DATED 29.8.2010 BETWEEN ANTRIK SH ENGINEERS CONSTRUCTION AND ASSESSEE AND COPY OF REGISTERED SA LE DEED DATED 6.2.2012 EXECUTED BETWEEN ANTRIKSH ENGINEERS CONSTRUCTIO N AND NEHA RASTOGI / SHILPA RASTOGI, WHICH GOES TO THE ROOT OF THE MATTER. I FURTHER FIND THAT ASSESSEE HAS FILED A PAPER BOOK B EFORE US CONTAINING PAGES 1 TO 79 HAVING THE COPY OF WRITTEN S UBMISSION FILED BEFORE THE CIT(A); COPY OF REPLY DATED 17.11.2016 F ILED BY THE ASSESSEE BEFORE THE AO; COPY OF REPLY DATED 2.12.201 6 FILED BY THE ASSESSE BEFORE THE AO; COPY OF SEIZED SHEET AS PAG E 36 OF ANNEXURE A-8 FOUND DURING THE SEARCH AT THE PREMISE S C-450/451, SECTOR-10, NOIDA IN THE CASE OF M/S BSBK GROUP; COP Y OF REGISTERED SALE DEED DATED 29.12.2010 BETWEEN ANTRIKSH ENGINEE RS CONSTRUCTION CORPORATION AND APPELLANT AND COPY OF AP PLICATION UNDER RULE 46A OF THE I.T. RULES, 1962 WHICH WAS NO T TAKEN ON RECORD BY THE LD. CIT(A) ATTACHING THEREWITH THE COP Y OF AGREEMENT DATED 29.8.2010 BETWEEN ANTRIKSH ENGINEERS CONSTRUCTI ON AND ASSESSEE AND COPY OF REGISTERED SALE DEED DATED 6.2. 2012 EXECUTED BETWEEN ANTRIKSH ENGINEERS CONSTRUCTION AND NE HA RASTOGI / SHILPA RASTOGI, WHICH IN OUR CONSIDERED OP INION, ARE VERY ESSENTIAL TO BE CONSIDERED AND EXAMINED BY THE ASSESS ING OFFICER. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF TH E CASE AND IN THE INTEREST OF JUSTICE, THE ISSUES IN DISPUTE ARE REMITTED BACK TO THE FILE OF THE AO TO DECIDE THE ISSUES IN DISPUTE AFRESH, A FTER CONSIDERING ALL THE EVIDENCES AS DISCUSSED ABOVE AND GIVE ADEQUATE OPP ORTUNITY OF BEING 5 HEARD TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM. THE ASSESSEE IS ALSO DIRECTED TO SUBMIT ALL THE DOCUMENTS / EVIDENCES BE FORE THE AO IN ORDER TO SUBSTANTIATE HIS CLAIM. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 01/02/2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 01/02/2018 COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES