Narendra Sharma, New Delhi V. ITO WARD - 37(2), New Delhi

ITA 7765/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5840 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 23-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AJIT SHARMA
• Keywords: Opportunity of being heard; Non compliance

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC B ENCH, NEW DELHI [THROUGH VIDEO CONFERENCE] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 7765/DEL/2019 [ASSESSMENT YEAR: 2011-12] SHRI NARENDER SHARMA VS. THE I.T.O O-43, PREM NAGAR-2 WARD 37(2) KIRARI, NEW DELHI NEW DELHI PAN: AZMPS 2783 D [APPELLANT] [RESPONDENT] DATE OF HEARING : 16.09.2021 DATE OF PRONOUNCEMENT : 16.09.2021 ASSESSEE BY : SHRI AJIT SHARMA, ADV REVENUE BY : SHRI R.K. GUPTA, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] 13, DELHI DA TED 12.06.2019 PERTAINING TO ASSESSMENT YEAR 2011-12. 2. GRIEVANCES OF THE ASSESSEE READ AS UNDER: 1. THAT THE IMPUGNED ORDER OF THE LEARNED CIT (A) DATED 29 TH JUNE 2018 IS BAD IN LAW AND ON FACTS. 2 2. THAT THE LD.CIT (A) FAILED TO UNDERSTAND THE CAS E ON MARIT AND PASSES THE ORDER IN A HASSLE MANNER. THEY FAILED TO UNDERSTAND THAT THE LD. AO HAS TAKEN TRANSACTION VALUE OF SHARES WHILE PROFIT AND LOSS ON SUCH TRANSACTION ARE DIFFERENT. 3. THAT THE LD. AO DID NOT CALCULATE THE CORRECT PR OFIT AND LOSS ON SALE AND PURCHASE OF SHARE TRANSACTION. THEY ASSUME D THAT ALL TRANSACTIONS VALUE ARE INCOME OF THE ASSESSEE. 4. DURING THE COURSE OF HEARING SOME OTHERS GROUND MAY BE ADD, MODIFIED AND WITHDRAW. 3. REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH. CASE RECORDS CAREFULLY PERUSED. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSING OFFICER FRAMED ORDER U/S 144/147 OF THE INCOME TAX ACT, 196 1 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] DATED 11.12.2018. RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT ON THE BASIS OF AIR/CIB INFORMATION RELA TING TO SHARE TRANSACTIONS OF RS. 97,31,370/. STATUTORY NOTICES WERE ISSUED A ND SERVED UPON THE ASSESSEE BUT REMAINED UNCOMPLIED. THE ASSESSING OFF ICER WAS LEFT WITH NO CHOICE BUT TO PASS EX-PARTY ORDER AND MADE ADDITION OF 10% OF THE INVESTMENT IN SHARES AT RS. 9,37,137/. 3 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT WITHOUT ANY SUCCESS. 6. THE RELEVANT FINDINGS OF THE LD. CIT(A) READ AS UNDER: 4.3 AN APPEAL IN FORM NO. 35 WAS E-FILED ON 16.01 .2019. THE APPELLANT SHRI NARENDRA SHARMA APPEARED STATING THAT HE HAD E ARNED RS. 94,310/- DURING THE YEAR. AS REGARDS THE SHARE TRANSACTIONS HE CLAIMED TO HAVE TRANSACTED TO THE EXTENT OF RS.24,54,356/- WITH A L OSS OF RS. 2,355/-. THE APPELLANT HAS GIVEN NO DOCUMENTARY PROOF OR EXP LANATION BEFORE THE AO AND ALSO NOT STATED THAT NO NOTICES WERE RECEIVE D BY HIM. THIS IMPLIES CONSCIOUS AND DELIBERATE NON COMPLIANCE BEFORE THE ASSESSING OFFICER. EVEN BEFORE THE UNDERSIGNED, HE HAS TAKEN THE PLEA THAT THE TRANSACTIONS WERE NOT IN HIS KNOWLEDGE AND HIS RELATIONSHIP MANA GER MAY HAVE DONE IT WITHOUT HIS KNOWLEDGE AND EVEN IF IT WERE IN HIS KN OWLEDGE, THE TREATMENT WOULD HAVE BEEN THE SAME. SUCH A REPLY SHOWS THE TE NTATIVE, CASUAL & NON COMMITTAL ATTITUDE/RESPONSE OF THE APPELLANT EVEN O THERWISE. THIS SUBMISSION IS VAGUE AND AMBIGUOUS. THERE IS NO DOCU MENTARY EVIDENCE IN SUPPORT EITHER. ACCORDINGLY, THE ARGUMENT PUT FORTH IS BEREFT OF MERIT AND IS HEREBY REJECTED. THE ADDITION OF RS. 9,37,13 7/- IS HEREBY CONFIRMED . 7. BEFORE ME, THE LD. AR SUBMITTED A PAPER BOOK CON TAINING 38 PAGES OF DOCUMENTS EXPLAINING THE TRANSACTION. THE ORDER OF THE LD. CIT(A) IS COMPLETELY SILENT ON THESE DOCUMENTARY EVIDENCES. I N MY CONSIDERED OPINION, EVEN IF FOR SOME REASON THE ASSESSMENT PRO CEEDINGS WERE NOT ATTENDED BY THE ASSESSEE BUT EVIDENCES WERE FURNISH ED BEFORE THE CITA. 4 8. IN THE INTEREST OF JUSTICE AND FAIR PLAY, I DEEM IT FIT TO RESTORE THE APPEAL OF THE ASSESSED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE DOCUMENTS AND DE CIDE THE ISSUE AFRESH AFTER GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 7765/DEL/2019 IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.09. 2021. SD/- [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 16 TH SEPTEMBER, 2021. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 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 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 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