Haseen Ahmed, Meerut V. ITO, Ward-1(3), Meerut

ITA 7481/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5366 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 26-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRADEEP SINGH GOTAM
• Keywords: Principle of natural justice; Additional evidence
• Section: 44AD; 148; 144

Judgement Text

1 ITA NO. 7481/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F + SMC NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBE R AND MS SUCHITRA KAMBLE, JUDIC IAL MEMBER ITA NO. 7481/DEL/2018 ( A .Y 2010-11) HASEEN AHMED 36, JAMUNA NAGAR, HAPUR ROAD, MEERUT PAN. AEXPA7991K (APPELLANT) VS ITO WARD-1(3) AAYAKAR BHAWAN, BHAINSALI GROUND, MEERUT (RESPONDENT) APPELLANT BY SH. VINOD KUMAR GOEL, ADV RESPONDENT BY SH. PRADEEP SINGH GOTAM, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 28.08.2018 PASSED BY CIT(A)-MEERUT, FOR ASSESSMENT YEAR 2010- 11. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE ASSESSEE MADE U/S 144 IS AGAINST THE F ACTS AND LAW BECAUSE NO NOTICE U/S 148/144 WAS EVER SERVED UPON THE ASSESSE E, EVEN ASSESSMENT ORDER ALSO NOT SERVED. THEREFORE, THE ASSESSEE COU NSEL OBTAINED CERTIFIED COPY OF THE ASSESSMENT ORDER. THE ASSESSEE TRYING TO OB TAIN THE ASSESSEE REASONS RECORDED U/S 148 AND APPROVAL, HENCE, ASSESSMENT MA DE U/S 144 IS AGAINST THE FACTS AND LAW AND CIT(A) IS IN ERROR U/S 148, D ISMISS THIS GROUND WITHOUT GIVING THE FINDING ON SERVICE OF NOTICE IS ALSO BAD IN LAW. DATE OF HEARING 29.01.2020 DATE OF PRONOUNCEMENT 18.02.2020 2 ITA NO. 7481/DEL/2018 2. THAT THE A.O HAS MADE ADDITION ON ACCOUNT OF CAS H DEPOSIT IN BANK OF RS. 21,96,542/- WITHOUT CONSIDERING THE WITHDRAWAL, WHI CH WAS REDEPOSIT IN THE BANK. THE CIT(A) HAS NOT DECIDE THIS ISSUE IN MERI T OF THE CASE, HENCE THE FINDING OF CIT(A) IS AGAINST THE PRINCIPLE OF NATU RAL JUSTICE. 3. THAT IN THE BANK ACCOUNT THE ASSESSEE HAS DEPOSI TED THE MONEY ON ACCOUNT OF SALE AND THE ASSESSEE ALREADY SHOWN THE NET PROFIT BY INVOKING THE PROVISION U/S 44AD OF I.T. ACT. THEREFORE, THE A.O HAS NOT JUSTIFIED IN MAKING ADDITION AS UNEXPLAINED. THE CIT (A) IS IN ERROR T O DECIDE THIS ISSUE ON MERIT. 3. THE ASSESSMENT WAS COMPLETED U/S 147/144 OF THE INCOME TAX ACT AT A TOTAL INCOME OF RS. 21,96,542/- ON THE BASIS OF INF ORMATION RECEIVED OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT (A). THE CIT (A) DISMISSED THE APPEAL OF T HE ASSESSEE BY REJECTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE TH E CIT (A). 5. THE LD. AR SUBMITTED THAT THE CIT(A) HAS NOT DEC IDED THE CASE ON MERIT AND SIMPLY REJECTED ALL THE ADDITIONAL EVIDENCE PRO DUCED BEFORE HIM. THE LD. AR SUBMITTED THAT THE ASSESSEE COULD NOT ATTEND THE ASSESSMENT PROCEEDINGS AS THE NOTICE WAS NOT SERVED ON THE ASSESSEE. THUS , THE LD. AR SUBMITTED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER BY ADMITTING THE ADDITIONAL EVIDENCE AND AFTER TAKING COGNIZANCE OF THE ADDITIONAL EVIDENCE PROPER ASSESSMENT ORDER SHOULD BE PASSED. 6. THE LD. DR SUBMITTED THAT THE ASSESSEE WAS GIVEN PROPER OPPORTUNITY OF HEARING WHICH WAS NOT AVAILED BY THE ASSESSEE DESPI TE SEVERAL NOTICES. THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY PASSED BEST JUDGMENT ASSESSMENT U/S 144 OF THE ACT. THE LD. DR FURTHER SUBMITTED T HAT THE CIT (A) HAS RIGHTLY REJECTED ADDITIONAL EVIDENCE AT A LATER STAGE. HEN CE, THE LD. DR SUBMITTED THAT THE APPEAL OF THE ASSESSEE BE DISMISSED. 3 ITA NO. 7481/DEL/2018 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT WILL BE APPROPRIATE TO REMAND BACK THIS MATTER BY ADMITTING THE ADDITIONAL EVIDENCE AT THIS STAGE AS THE NOTICE WAS NOT PROPERLY SERVED BY THE ASSESSING OFFICER ON THE ASSESSEE DURING THE ASSESS MENT PROCEEDINGS. THE ASSESSING OFFICER IS DIRECTED TO TAKE COGNIZANCE OF THE ADDITIONAL EVIDENCE AND ACCORDINGLY PASS THE FRESH ASSESSMENT ORDER. NEEDL ESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLE S OF NATURAL JUSTICE. THUS, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATIS TICAL PURPOSE. 8. IN RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH FEBRUARY, 2020. SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18/02/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. 7481/DEL/2018 DATE OF DICTATION 01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 1 9 . 0 2 .2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 9 . 0 2 .2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 9 . 0 2 .2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER