Nanava , Meerut V. ITO, Ward- 2(1), Meerut

ITA 7455/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5796 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard; Additional evidence; Corroborative evidences; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.-7455/DEL/2017 ( ASSESSMENT YEAR: 2009-10) SH. NANAVA S/O SHRI CHANDAN, DUNGRAWALI VILLAGE, PARTAPUR, MEERUT ANDPN8216F VS ITO WARD 2(1) MEERUT ASSESSEE BY SH. MOHIT KUMAR, ADV. REVENUE BY MS. ASHIMA NEB, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE, ASSAILIN G THE CORRECTNESS OF THE ORDER DATED 29.11.2017 OF CIT(A), MEER UT PERTAINING TO 2009-10 AY ON THE FOLLOWING GROUNDS: 1. THAT THE BANK DEPOSIT OF RS. 33,60,540/- WAS MADE OUT OF SALE OF AGRICULTURE LAND, THE AO HAS NOT CONSIDERED THIS FACT AND MADE ADDITION U/S 69A OF I.T. ACT. HOWEVER, SECTION 69A IS NOT APPLICABLE AND IT IS AP PLICABLE ONLY IN THE SEARCH CASES AND CIT(A) ALSO IN ERROR CONFIRMING THE SAME. 2. THAT THE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF A CCOUNT, THEREFORE, BANK ACCOUNT CANNOT BE TREATED AS BOOKS OF ACCOUNT OF TH E ASSESSEE. THEREFORE, ADDITION MADE BY AO U/S 69A IS BAD IN LAW AND CIT(A ) ALSO IS IN ERROR CONFIRMING THE SAME. 3. THAT THE AO HAS NOT CONSIDERED THE ALLAHABAD HIGH C OURT JUDGMENT IN THE CASE OF INTZAR ALI. HENCE, ASSESSMENT MADE BY THE AO WI THOUT ANY BASIS AND CONFIRMED BY CIT(A) IS BAD IN LAW. 4. THAT THE ASSESSEE HAS RIGHT TO ADD, DELETE OR MODIF Y ANY GROUNDS DURING THE APPEAL PROCEEDING. 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATION WAS MOVED ON BEHALF OF THE ASSESSEE. MR. MOHIT KR., ADVOCATE WAS PRESENT IN SUPPORT THEREOF. HOWEVER, ON CONSIDERING THE MATERIAL AVAILABLE ON R ECORD THE APPEAL WAS PASSED OVER AND DIRECTED TO BE TAKEN ON ITS TURN AS PER THE CAUSE LIST AS THE SAME COULD BE DECIDED AFTER HEARING TH E LD. SR. DR ON MERITS. 3. THE RELEVANT FACTS OF THE CASE ARE THAT AS PER AIR INFORMATION IT WAS NOTICED THAT THE ASSESSEE HAD MADE CASH DEPOSITS AGGREGATING RS. 33,60,540/- IN ITS BANK. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SAME. THE ASSESSEE INITIALLY WAS REPRESENTED BY A COUNS EL SH. J.P. GUPTA WHO STATED THAT THE AMOUNT HAD BEEN DEPOSITED AFTER SELLING DATE OF HEARING 18.04.2018 DATE OF PRONOUNCEMENT 27.06.2018 ITA NO. 7455/DEL/2017 2 AGRICULTURAL LAND. THEREAFTER THE ASSESSEE SUBSEQUENTLY W AS REPRESENTED BY ANOTHER COUNSEL SH. SANDEEP PANDEY WHO APPEARED AN D STATED THAT THE ASSESSEE HAD DEPOSITED THE SAME FROM THE RECEIPT O F SALE PROCEEDS OF HIS PROPERTY WHERE THE AMOUNT HAD BEEN RECEIVED AS AN ADVANCE. IT WAS STATED THAT ULTIMATELY THE DEAL DID NOT MATERIALIZE AND TH E ENTIRE AMOUNT WAS RETURNED. THE ASSESSEE WAS STATED TO BE FARMER, H OWEVER, NO EVIDENCE WAS FILED EITHER QUA THE SAID ACTIVITY NOR ANY OTH ER DOCUMENT EVIDENCING THE FACT OF OWNERSHIP OF AGRICULTURAL LAND ETC. AS A RESULT, THE ASSESSMENT WAS CONCLUDED U/S 147/144 WHEREIN THE SAID AMOUNT WAS ADDED. 4. IN APPEAL BEFORE THE CIT(A), THE ASSESSEE SOUGHT PERM ISSION TO FILE FRESH EVIDENCES. THE CIT(A) BEING OF THE VIEW THAT SUFFICIENT O PPORTUNITY WAS PROVIDED BY THE AO, REJECTED THE PRAYER. FOR RE ADY REFERENCE THE RELEVANT FINDING IS REPRODUCED HEREUNDER: IN THESE CIRCUMSTANCES, I AM NOT INCLINED TO ADMIT THE ADDITIONAL EVIDENCE NOW BEING REQUESTED. IN THE ABSENCE OF ANY EVIDENCE IN THE ASSESSMENT RECORD EXCEPT THE COPY OF PASSBOOK, WHEREIN THE IMPUGNED AMOUNT HAS B EEN DEPOSITED OR A LETTER BY THE ASSESSEE STATING CERTAIN DATES WHEN THESE MONIES WE RE WITHDRAWN AND PAID. NO SUPPORTING DOCUMENT LIKE THE SALE DEED OF PROPERTY CAUSING THE DEPOSIT IN ASSESSEES BANK A/C OR AN AFFIDAVIT HAS BEEN FURNISHED IN THE COURSE OF ASSESSMENT PROCEEDINGS WHEN CAN BE RELIED UPON TO VERIFY THE DEPOSIT. THU S, CONSIDERING THE TOTALITY OF EVIDENCES FILED BEFORE THE AO, WHICH I HAVE RE-CONS IDERED, IT IS FOUND THAT AOS FINDINGS IN THE ASSESSMENT ORDER HAVE NOT BEEN CONT ROVERTED BY THE ASSESSEE OR HIS COUNSEL. I AM, THEREFORE, CONSTRAINED TO CONFIRM T HE FINDINGS OF THE ASSESSMENT ORDER. 5. THE LD. SR. DR RELIES ON THE ORDERS OF THE AO AND CIT(APPEALS). 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON A READING OF THE ORDER, IT IS SEEN THAT NOTHING HAS BEEN BROUGHT ON RECORD BY THE CIT(A) TO SHOW WHAT WAS THE EVIDENCE SOUGHT TO BE FILED BY THE ASSESSEE. ADMITTEDLY, AS PER RECORD THE ASSESSEE DESCRIBED HIMSELF BEFORE THE AO AS A FARMER. THE ASSESSEE THOUGH SPORADICALLY WAS REPRESENTED BY COUNSELS APPOINTED BY HIM, HOWEVER, ADMITTEDLY THEY FAILED TO FILE ANY EVIDENCE IN SUPPORT OF TH E STATED CLAIM OF ADVANCE RECEIVED FOR SALE OF PROPERTY. IT IS FURTHER SE EN THAT FREQUENT CHANGE OF THE COUNSELS AT THE ASSESSMENT STAGE MAY HA VE HANDICAPPED THE ASSESSEE. I FIND ON GOING THROUGH THE RECORD THAT N O GOOD REASON HAS BEEN CARED TO BE BROUGHT ON RECORD BY THE CIT(A) TO J USTIFY WHY IN THE PECULIAR FACTS AND CIRCUMSTANCES, FRESH EVIDENCES COULD NOT HAVE BEEN ADMITTED. ADMITTEDLY, THE CLAIMS ARE MADE AT THE FIRST INST ANCE BEFORE THE AO. THE SUPPORTING EVIDENCES WHICH THE COUNSELS SO UGHT TO HAVE FILED, ADMITTEDLY HAS NOT BEEN FILED. THE STATED SHORTCOMING COULD HAVE ITA NO. 7455/DEL/2017 3 BEEN ADDRESSED BEFORE THE STATUTORILY PROVIDED FORUM O F THE FIRST APPELLATE AUTHORITY. NO JUSTIFIABLE REASON IS AVAILABLE ON RECO RD TO SHOW WHY THE SAID FORUM WAS TO BE TREATED AS A POST OFFICE AN D THE JUSTICE DISPENSATION SHOULD BE MECHANICAL AND ROBOTICAL. THE LAW DOES NOT PERCEIVE THE FIRST APPELLATE FORUM AS AN EMPTY, MEANINGLE SS FORUM. SUB-SECTION (4) AND (5) OF SECTION 250 OF THE INCOME TAX A CT AND CLAUSE (C) OF SUB-SECTION (1) OF SECTION 251 OF THE INCOME TAX ACT,1 961 READ ALONGWITH SUB-RULE (4) OF RULE 46A OF THE INCOME TAX RULES, 1 962 HAS MORE THAN ADEQUATELY EMPOWERED THE CIT(A) TO CALL FOR N ECESSARY EVIDENCES TO ENSURE THAT JUSTICE IS DONE. THE SAID FORUM HAS SPECIFICALLY BEEN CREATED TO REDRESS THE GRIEVANCES OF THE TAX PAY ER AND ITS RELEVANCE AND EXISTENCE CANNOT BE ALLOWED TO BE UNDERMINED. THE JU DICIAL REMEDY OF APPEAL CANNOT BE ALLOWED TO BE TREATED AS AN EMPTY R ITUAL AND A MEANINGLESS MECHANICAL EXERCISE. IN THE FACTS OF THE PRES ENT CASE, ADMITTEDLY A FARMER ASSERTING FACTS KNOWN TO BE CORREC T AND UNDENIABLY TRUE ACCORDING TO HIS KNOWLEDGE AND THUS MAY HAVE ENTE RTAINED THE BELIEF THAT THESE FACTS MAY NOT BE REQUIRED TO BE SUBST ANTIATED. THUS, MAY NOT HAVE LEAD EVIDENCE DEMONSTRATING HIS STATED A CTIVITY NOR ANY EVIDENCE OF ANY AGRICULTURAL LAND HOLDING BEFORE THE AO. HO WEVER, WHEN THE STATUTE HAS PROVIDED AN APPELLATE FORUM THE FRESH E VIDENCES CONSIDERING THE FACTS IN SUPPORT OF THE STATED CLAIMS WHICH ADMITTEDLY IS RELEVANT AND CRUCIAL EVIDENCE FOR DETERMINING THE ISSUES, TH E EVIDENCES IF SOUGHT TO BE MADE AVAILABLE, SHOULD HAVE BEEN ACCEPTED AND INFACT IN T HE ABSENCE OF ASSESSEE'S PRAYER, THE CIT(A) HAVING THE POWE R TO CALL FOR SUPPORTING EVIDENCES SHOULD HIMSELF HAVE DIRECTED THE ASSE SSEE TO PLACE THE EVIDENCE ON RECORD IN SUPPORT OF ITS CLAIM MADE BY WA Y OF GROUNDS RAISED. IT IS FOR THE TAX AUTHORITIES TO ASSIST SUCH TAXPA YERS TO BE TAX COMPLIANT INSTEAD OF FORCING SUCH ASSESSEES TOWARDS UNSCR UPULOUS ADVISERS WHO MAY INSTEAD INITIATE HIM TOWARDS ADOPTING UN SCRUPULOUS STRATEGIES AIMED TOWARDS CIRCUMVENTING THE LAW. THE FUNDA MENTAL FACT THAT ONLY JUST AND DUE TAXES FOR THE STATE BE COLLECTE D AT ALL STAGES SHOULD NOT BE IGNORED. TO GATHER TAX FOR THE STATE BASED ON THE IGNORAN CE OF THE TAX PAYERS CAN NEVER BE THE AIM OF STATE ADMINISTRATION. THE IMPUGNED ORDER, ACCORDINGLY, HAVING FAILED TO ADDRESS THE ISSUES CAN NOT BE UPHELD AND IS SET ASIDE. 7. IN THE CIRCUMSTANCES, THE LD. SR. DR WAS REQUIRED TO ADDRESS AS TO WHICH FORUM THE ISSUE SHOULD BE REMANDED BACK. THE LD. S R. DR ITA NO. 7455/DEL/2017 4 MAINTAINING THAT THE IMPUGNED ORDER MAY BE UPHELD EVEN T HOUGH UNABLE TO ADDRESS WHY THE EVIDENCES WHICH GO TO THE ROOT OF T HE MATTER AS THEY WERE RELEVANT AND CRUCIAL FOR DECIDING THE ISSUE SHOULD NO T BE ADMITTED SOLELY BECAUSE IT WAS NOT MADE AVAILABLE TO THE AO, REQUE STED THAT IN CASE THE ISSUE HAS TO BE REMANDED, THEN IT MAY BE REMA NDED TO THE AO AS ENQUIRIES MAY BE REQUIRED TO BE CARRIED OUT AT HIS E ND. ACCEPTING THE PRAYER, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE AO WITH TH E DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS ADVISED THAT THE ASSESSEE IN ITS OWN INTEREST MAKES FULL AND PROPER COMPLIA NCE BEFORE THE SAID AUTHORITY AS IN THE EVENTUALITY OF ABUSE OF THE SAME, THE AO WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECOR D. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2018. SD/- (DIVA SINGH) JUDICIAL MEMBER * KAVITA ARORA/POONAM(CHD) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI