Deepak Tyagi, Ghaziabad V. ITO, Ward- 1(2), Ghaziabad

ITA 7400/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2751 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C P SINGH
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 147

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC-I BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 7400/DEL/2018 [ASSESSMENT YEAR: 2010-11] DEEPAK TYAGI, VS. ITO, WARD 1(2), S/O SH. SATISH TYAGI, GHAZIABAD H.NO. A-318, NAND GRAM, ROOM NO. 230, CGO COMPLEX -I, GHAZIABAD HAPUR CHUNGI, GHAZIABAD UTTAR PRADESH-201001 (PAN: AFJPT0205J) [APPELLANT] [RESPONDENT] ASSESSEE BY: SH. ANOOP SHARMA, ADVOCATE & SH. SANJAY PRASHAR, ADVOCATE REVENUE BY : SH. C.P. SINGH, SR. D R. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS], GHAZIABAD DAT ED 28.09.2018 PERTAINING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOW ING GROUNDS:- 1. THAT ON PECULIAR FACTS AND CIRCUMSTANCES OF THE PRE SENT CASE, THE ADDITION OF RS. 2818125/- TO THE INCOME O F ASSESSEE ON ACCOUNT OF ALLEGED PURCHASE OF IMMOVABL E PROPERLY IS JUSTIFIED. 2. THAT THE PROCEEDINGS U/S. 147/148 AND 144 OF THE I. T. ACT ARE BAD ON FACTS AND IN LAW AND ORDERS PASSED BY TH E LD. AUTHORITIES MAY BE SET ASIDE. 3. THAT THE LD. CIT(A) WAS WRONG IN HOLDING THAT THE A FFIDAVIT FILED BY THE ASSESSEE STATING THAT HE DID NOT PURCH ASE 1/4 TH SHARE OF RS. 2818125 NOR MADE ANY PAYMENT THEREOF C OULD NOT BE RELIED UPON WHILE HOLDING THAT THE ASSESSEE HAS GIVEN THIS MONEY OF PURCHASE PRICE. 2 4. THAT THE LD. CIT(A) ERRED IN HOLDING THAT THE ABOVE AFFIDAVIT STOOD BELIEVED BY THE SALE DEED AVAILABLE WITH A AO AND THEREFORE HAD NO EVIDENTIARY VALUE AND COULD BE RELIED UPON. 5. THE ISSUE WHETHER THE ASSESSEE PURCHASED 1/4 TH SHARE IN THE PROPERTY NEEDS INVESTIGATION AND FURTHER INQUIR IES IN VIEW OF THE STATEMENT ON OATH MADE BY THE ASSESSEE IN RESPECT OF THE PROPERTY. 6. THAT IN CASE OF A BENAMI TRANSACTION, PARTIES RELAT ING TO SAME SHOULD BE EXAMINED AND INVESTIGATED BEFORE GIV ING A FINAL FINDING WHICH IS ABSENT HERE, HENCE THE ORDER S NEED TO BE SET ASIDE. 7. THAT THE APPELLANT CRAVES LEAVE TO MODIFY/ AMEND OR ADD ANY ONE OR MORE GROUNDS. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT AO HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSE E AND PASSED THE ASSESSMENT ORDER DATED 23.11.2017 U/S. 144 READ WIT H SECTION 147 OF THE INCOME TAX ACT, 1961. HE FURTHER STATED THAT ASSESS EE IS HAVING ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM BE FORE THE REVENUE AUTHORITIES, IF THIS BENCH GRANTS AN OPPORTUNITY TO THE ASSESSEE TO DO THE SAME. HE REQUESTED THAT THE ISSUES IN DISPUTE MA Y BE SET ASIDE TO THE ASSESSING OFFICER TO DECIDE THE SAME, AFRESH, AS P ER LAW, AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE AS WELL AS F OR PRODUCTION OF ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE BEFORE THE ASSESSING OFFICER. 4. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES ALONGWITH THE ASSESSEES PA PER BOOK CONTAINING PAGES 1-63 IN WHICH HE HAS ATTACHED THE COPY OF RE ASONS RECORDED ON 3 03.3.2017 FOR REOPENING THE ASSESSMENT AND ORDER SH EET; COPY OF WRITTEN SUBMISSION DATED 25.9.2018 FILED BEFORE LD. CIT(A); COPY OF APPLICATION OF ADDITIONAL EVIDENCE DATED 25.9.2018 ALONGWITH AFFID AVIT AND COPY OF BANK ACCOUNT FILED BEFORE LD. CIT(A); COPY OF SALE DEED DATED 24.12.2009, WHICH HAVE NOT BEEN PROPERLY CONSIDERED BY THE LOWE R AUTHORITIES, HOWEVER, THE SAME ARE VERY VITAL AND ESSENTIAL. I FIND THAT AO HAS ALSO PASSED THE ASSESSMENT ORDER U/S. 144/147 OF THE I.T . ACT, 1961 WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESEE FOR SU BSTANTIATING THE CLAIM. THEREFORE, IN THE INTEREST OF JUSTICE, I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE ASSESSING OFFICER WITH THE DIRECTIO NS TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND CONSIDER ALL THE DOCUMENTS / EVIDENCES FILED IN THE SHAPE OF PAPER BOOK, AS DISCUSSED ABOVE, TO SUBSTANTIATE THE CLAI M OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 17.03.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:17-03-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI