Vivek Prakash, V. Income Tax Officer, New Delhi

ITA 821/DEL/2009

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6954 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 09-02-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 06-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: GN GUPTA ITP SH BHARAT BERIWAL; VIVEK PRAKASH
• Keywords: Unexplained investment; Gift; Opportunity of being heard

Judgement Text

ITA NO. 821/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. NO. 821/DEL/2009 A.Y. : 2003-04 SHRI VIVEK PRAKASH, 6314, F-6, ALOK VIHAR-2, SECTOR-50, NOIDA (UP) (PAN: ACYPP2870K) VS. INCOME TAX OFFICER, WARD-48(4), NEW DELHI (APPELLANT ) (RESPONDENT ) ASSESSEE BY : SH. GN GUPTA, ITP, SH. BHARAT BERIWAL, ADV. AND SH. VIVEK PRAKASH, ASSESSEE DEPARTMENT BY : SH. S .K. JAI N, SR. DR DATE OF HEARING: 09-02-2016 DATE OF ORDER : 12-02-2016 ORDER PER H.S. SIDHU, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXX, NEW DELHI DATED 28.11.2006 PERTAINING TO ASSESSMENT YEAR 2003-04 ON THE FOLLOW ING GROUNDS:- 1. ON THE FACT AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF AO BY CONFIRMING AN ADDITIO N OF RS. 25,59,500/- FOR UNEXPLAINED SOURCE OF INVESTMENT IN PROPERTY AND IGNORING ALL THE DOCUMENTARY EVIDENCES PRODUCED BY THE ASSESSEE IN SUPPORT OF HIS CONTENTION. IN OUR OPINION, THE ADDI TION MADE MAY BE DELETED FROM THE INCOME OF THE ASSESSEE. ITA NO. 821/DEL/2009 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF AO BY CONFIRMING AN ADD ITION OF RS. 4,90,950/- WHICH WERE CLAIMED TOWARDS HRA EXEMPTION BY THE ASSESSEE IN HIS FORM 16, IN OUR OPINION, THE SAME MAY BE ALLOWED TO THE ASESSEE. DETAILED SUBMISSION WILL BE SUBMITTED AT THE TIME O F HEARING. THE ASSESSEE CRAVES LEAVE TO ADD, DELETE, AMEND, M ODIFY OR SUBSTITUTE ANY OR ALL GROUNDS OF APPEAL. 2. AT THE TIME OF HEARING, THE ASSESSEE FILED AN A PPLICATION TO TAKE AN ADDITIONAL GROUNDS OF APPEAL. THE CONTENTS THEREOF READ AS UNDER:- 1. THAT THE PRESENT APPEAL IS FIXED FOR HEARING BE FORE THIS HONBLE BENCH TODAY I.E., 09.2.2016 FOR FINAL HEARI NG. THAT THE FACTS AND CIRCUMSTANCES OF THIS CASE REQUIRE THAT T HE MATTER MAY BE REMANDED BACK TO THE AO AS THE APPELLANT DID NOT HAVE ADEQUATE OPPORTUNITY TO PLACE ITS EVIDENCE BEF ORE THE AO DURING ASSESSMENT PROCEEDINGS AS HE WAS IN JUDICIAL CUSTODY DURING THE RELEVANT PERIOD OF THE ASSESSMENT PROCEE DINGS. 2. IN THE CIRCUMSTANCES, THE APPELLANT HUMBLY SEEKS TO RAISE AN ADDITIONAL GROUND OF APPEAL, WHICH IS AS F OLLOWS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE PRESENT CASE IS A FIT CASE FOR SETTING ASIDE OF TH E ASSESSMENT ORDER AND REMANDING IT BACK TO THE AO AS THE ASSESSEE WAS NOT ABLE TO PLACE ANY EVIDENCE O N RECORD BECAUSE ALSO THE AO DID NOT HAVE ADEQUATE OPPORTUNITY TO EXAMINE THE ASSESSEE. 3. THAT THE PRESENT APPLICATION IS BONAFIDE AND I N THE INTEREST OF JUSTICE AND GROSS HARM AND IRREPARABLE DAMAGE WOULD BE CAUSED TO THE APPELLANT IF THE PRES ENT ITA NO. 821/DEL/2009 3 APPLICATION IS NOT ALLOWED AND THE PRESENT GROUND I S NOT ADMITTED AND HEARD AND ALLOWED. 4. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, IT IS M OST RESPECTFULLY PRAYED THAT THIS HONBLE TRIBUNAL MAY MOST GRACIOUSLY BE PLEASED TO ALLOW THE PRESENT APPLICAT ION AND ADMIT AND HEAR AND ALLOW THE PRESENT GROUND OF APPEAL OF THE APPELLANT. 3. IN THIS CASE, THE APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE ON 16.2.2010 FOR NON-PROSECUTION AND THE ORDER DATED 16.2.2010 WAS RECALLED ON 21.10.2011 WITH A VIEW TO DECIDE THE APPEAL ON MERI TS. 3.1 THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED HIS RETURN ON 3.10.2003 DECLARING TOTAL INCOME OF RS. 33,75,384/- . THE RETURN WAS PROCESSED U/S. 143(1). THEREAFTER, THE CASE WAS TAK EN UP FOR ASSESSMENT BY ISSUING NOTICE U/S. 143(2) ON 28.10.2004. IT WAS FO UND THAT ASSESSEE WAS AN EMPLOYEE OF M/S SAMSUNG ELECTRONICS INDIA INFORMATI ON AND TELECOMMUNICATION LTD. IN THIS YEAR, HE PURCHASED A PLOT OF LAND ADMEASURING 450 SQ.MTRS. FOR CONSIDERATION OF RS. 60,50,750/-. THE CONSIDERATION INCLUDED STAMP DUTY OF RS. 4,48,250/-. HE WAS REQUIRED TO S TATE THE NATURE AND SOURCE OF INVESTMENT. IT WAS SUBMITTED THAT A SUM OF RS. 3 4,91,250/- WAS TAKEN AS LOAN FROM ICICI BANK. FURTHER, AN AMOUNT OF RS. 25 ,59,500/- WAS PAID OUT OF PERSONAL LOAN, GIFT AND SAVINGS. HOWEVER, NO EVIDEN CE WAS FILED REGARDING PERSONAL LOAN, GIFT AND SAVINGS. THEREFORE, IT WAS HELD BY THE AO THAT THE AMOUNT OF RS. 25,59,500/- REPRESENTS INVESTMENT FRO M UNDISCLOSED SOURCES. ACCORDING, THIS AMOUNT WAS INCLUDED IN THE TOTAL IN COME, WHICH WAS COMPUTED AT RS. 64,25,830/-. AGGRIEVED, BY THE ASSESSMENT OR DER, ASSESSEE APPEALED BEFORE THE LD. CIT(A) WHO VIDE IMPUGNED ORDER DATED 28.11.2006 DISMISSED THE APPEAL OF THE ASSESSEE. AGAINST THE ORDER OF THE LD . CIT(A), ASSESSEE APPEALED BEFORE THE TRIBUNAL AND TRIBUNAL VIDE ORDER DATED 2 0.1.2012 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE TRIBUNAL S ORDER DATED 20.1.2012, ITA NO. 821/DEL/2009 4 ASSESSEE FILED MISC. APPLICATION NO. 10/DEL/2013 SE EKING RECTIFICATION OF THAT ORDER AND THE TRIBUNAL VIDE ORDER DATED 09.5.2014 PARTLY ALLOWED THE SAID MISC. APPLICATION BY HOLDING AS UNDER:- 3. THE FIRST ISSUE RAISED BY THE ASSESSEE IN THE PRESENT APPLICATION IS THAT IN OUR AFORESAID ORDER, THE BENCH HAS NOT T AKEN INTO CONSIDERATION THE AFFIDAVIT FILED BY THE ASSESSEE, WHICH WAS FILED ALONG WITH THE APPLICATION UNDER RULE 29 OF T HE ITAT RULES, 1963 FOR ADMISSION OF THE SAID AFFIDAVIT. TH E AFFIDAVIT IS AN AFFIDAVIT OF THE ASSESSEE, DEPOSING THAT HE H AD TAKEN A PERSONAL LOAN OF RS. 23,80,000/- FROM ONE MR. PRAB ODH GUPTA ON 27.06.2002; THAT THE ASSESSEE HAD REQUESTED SHRI GUPTA TO ISSUE HIM A DEMAND DRAFT OF RS. 23,80,000/-, DIRECT LY IN THE NAME OF ONE MR. R. SRINIVASAN, WITH WHOM THE ASSESS EE WAS NEGOTIATING TO BUY A PLOT OF LAND SITUATED AT NOIDA , REPRESENTING HIS WIFE MRS. UMA SRINIVASAN THROUGH A POWER OF ATTORNEY; THAT SHRI GUPTA HAD ISSUED DD NO.656998 D ATED 27.06.2002 TO THE ASSESSEE, IN THE NAME OF SHRI R. SRINIVASAN, FOR A SUM OF ~ 23,80,000/-; THAT THIS DEMAND DRAFT WAS PERSONALLY HANDED OVER BY THE ASSESSEE TO MR. R. SR INIVASAN, AS PART CONSIDERATION FOR THE SALE OF THE LAND; AND THAT THE ASSESSEE COULD NOT FILE THE REQUISITE DETAILS BEFOR E THE AO DURING THE ASSESSMENT PROCEEDINGS, SINCE HE (THE AS SESSEE) WAS IN JUDICIAL CUSTODY FROM 08.12.2005 TO 12.09.20 06 AND DURING THAT TIME NEITHER HE (THE ASSESSEE), NOR HIS CA HAD ACCESS TO ANY DOCUMENTS AS EVIDENCE SEIZED BY THE P OLICE UNDER FIR NO.253/2005 OF PS. KALKAJI. 4. A PERUSAL OF OUR AFORESAID ORDER DATED 20.01.20 12 SHOWS THIS CONTENTION OF THE ASSESSEE TO BE CORRECT. OUR ORDER DOES NOT EVINCE THE SAID AFFIDAVIT HAVING BEEN TAKEN INTO CO NSIDERATION. THE DEPARTMENT DOES NOT OPPOSE THE ASSERTION ON BEH ALF OF THE ITA NO. 821/DEL/2009 5 ASSESSEE THAT SAID AFFIDAVIT HAD, IN FACT, BEEN FIL ED BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL. THIS AFFIDAVIT ALONG WITH THE APPLICATION UNDER RULE 29 OF THE ITA T RULES EXISTS ON THE APPEAL RECORD. AS SUCH, A MISTAKE APP ARENT FROM RECORD HAS OCCURRED IN OUR ORDER, CALLING FOR RECTI FICATION. THIS GRIEVANCE OF THE ASSESSEE IS, THEREFORE, ACCEPTED. 5. AS PER THE SECOND CONTENTION OF THE ASSESSEE, I N OUR ORDER, THE SUBMISSION OF THE ASSESSEE WITH REGARD TO THE SETTI NG ASIDE OF THE ASSESSMENT ORDER, AS ALSO THE JUDGEMENT RELIED BY THE ASSESSEE HAVE NOT BEEN CONSIDERED. 6. THIS CONTENTION OF THE ASSESSEE, HOWEVER, IS FO UND TO BE INCORRECT. IN FACT, AT PAGE 3, PARA (II) (A), THE A SSESSEE HAS HIMSELF CONTENDED THAT: '(A) THE SECOND MISTAKE APPARENT FROM THE RECORD IS THAT, WHILE PASSING THE IMPUGNED ORDER, THE HON'BLE BENCH HAS REFERRED TO THE JUDGMENT RELIED UPON BY THE APPELLA NT IN THE CASE OF KAPURCHAND SRIMAL VS. CIT 131 ITR 451 (A.P. ), HOWEVER, THE SAME WAS NOT CONSIDERED/DISCUSSED BY T HE HON'BLE BENCH IN THE IMPUGNED ORDER.' 7. NOW, ONCE, THE JUDGEMENT CITED BY THE ASSESSE E HAS BEEN ADMITTEDLY REFERRED TO IN OUR ORDER, IT CANNOT BE S AID THAT THE SAME HAS NOT BEEN CONSIDERED. THE FURTHER CONTENTIO N IS THAT 'ITO VS. OMEGA BIOTECH LTD.', 4 ITR (TRIB) 72 (DEL) THOUGH CITED, HAS ALSO NOT BEEN CONSIDERED. IN PARA (II) (D), AT PAGE 3 OF THE APPLICATION, HOWEVER, IT HAS BEEN CONTENDED BY THE ASSESSEE HIMSELF, THAT IN THE SAID CASE, 'KAPURCHAND SRIMAL' (SUPRA) WAS FOLLOWED TO REMAND THE MATTER TO THE LOWER AUTH ORITY. NOW, SINCE 'KAPURCHAND SRIMAL' (SUPRA) HAS ITSELF B EEN ITA NO. 821/DEL/2009 6 CONSIDERED IN OUR ORDER, THIS ARGUMENT OF THE ASSES SEE OR LOSES SIGNIFICANCE . 8. IN PARAS (II) (B) AND (C) AT PAGE 3 OF THE APPL ICATION, THE ASSESSEE HAS CONTENDED THAT IT HAD BEEN PLEADED BEF ORE THE TRIBUNAL ON HIS BEHALF THAT SINCE THE EXAMINATION O F MR. PRABODH GUPTA AND OF MR. SRINIVASAN BY THE AO WAS IMPORTANT TO ASCERTAIN THE CORRECT FACTS OF THE CAS E AND THE CIT (A)'S ORDER WAS ERRONEOUS AS IT HAD BEEN PASSED WIT HOUT AFFORDING ANY OPPORTUNITY TO THE AO, THE MATTER BE SET ASIDE TO THE FILE OF THE AO FOR PASSING A FRESH ASSESSMENT O RDER AFTER EXAMINING ALL THE CONCERNED PARTIES AND PERTAINING THE COMPLETE FACTS. HOWEVER, IN OUR ORDER, THERE IS NOT HING TO SHOW THAT SUCH AN AVERMENT HAD BEEN MADE BEFORE THE BENC H AT THE TIME OF THE HEARING OF THE APPEAL. THE ID. COUNSEL FOR THE ASSESSEE HAS ALSO NOT BEEN ABLE TO SUBSTANTIATE THE AVERMENT OF SUCH PLEADING HAVING BEEN MADE AT THE TIME OF HE ARING OF THE APPEAL. THEREFORE, THIS SUBMISSION OF THE ASSES SEE IS REJECTED. 9. AS PER THE THIRD GRIEVANCE OF THE ASSESSEE, IN OUR ORDER, THE SUBMISSIONS OF THE ASSESSEE WITH REGARD TO A GIFT O F RS. 2.5 LAC RECEIVED BY THE ASSESSEE FROM HIS BROTHER AND W ITH REGARD TO PAYMENT OF HOUSE RENT AND CLAIM OF HOUSE RENT AL LOWANCE, HAVE NOT BEEN CONSIDERED. THE LD. COUNSEL FOR THE A SSESSEE, HAS, HOWEVER, STATED AT THE BAR THAT THIS CONTENTIO N OF THE ASSESSEE IS NOT PRESSED. REJECTED AS NOT PRESSED. 10. THE FOURTH CONTENTION OF THE ASSESSEE STATES T HAT THE ASSESSEE'S SUBMISSIONS IN RESPECT OF VIOLATION OF R ULE 46A OF THE IT RULES, 1962, BY THE CIT (A) AND THE JUDGEMEN TS RELIED ON BY THE ASSESSEE IN THIS REGARD, HAVE ALSO NOT BE EN ITA NO. 821/DEL/2009 7 CONSIDERED IN OUR ORDER. THIS CONTENTION HAS ALSO B EEN STATED TO BE NOT PRESSED BY THE ID. COUNSEL FOR THE ASSESS EE. REJECTED AS NOT PRESSED. 11. THE LAST CONTENTION OF THE ASSESSEE IS THAT TH E FINDINGS CONTAINED IN OUR ORDER ARE CONTRARY TO THE RECORD A ND THE SUBMISSIONS MADE BY THE ASSESSEE. HOWEVER, THE ID. COUNSEL FOR THE ASSESSEE HAS REMAINED UNABLE TO SUBSTANTIAT E THIS ASSERTION ALSO. PARA (V), CONTAINED AT PAGE 6 OF TH E APPLICATION READS AS FOLLOWS:- '(V) FINDINGS CONTRARY TO THE RECORD AND THE SUBMIS SIONS MADE BY THE APPELLANT: (A) THE FIFTH MISTAKE APPARENT FROM THE RECORD IS T HAT, THE HON'BLE BENCH IN PARA 6 AT PAGE 16 OF THE IMPUGNED ORDER HAS OBSERVED THAT THE APPELLANT HAS PAID AN AMOUNT OF R S.23.80 LAKHS TO MRS. UMA SRINIVASAN IN ADDITION TO THE PAY MENT OF RS.23.80 LAKHS MADE TO MR. R. SRINIVASAN. (B) IT IS RESPECTFULLY SUBMITTED THAT THE HON'BLE B ENCH HAS OBSERVED THAT THE WHOLE OF THE CONSIDERATION FOR TH E PURCHASE OF PLOT OF LAND HAS BEEN PAID TO MRS. UMA SRINIVASA N AND ONLY A PART OF WHICH (RS.23.80 LAKHS) HAS BEEN PAID TO M R. R. SRINIVASAN. THE HON'BLE BENCH HAS ON THIS BASIS REA CHED A CONCLUSION THAT THE SUM OF RS. 23.80 LAKHS WAS PAID INDEPENDENTLY TO BOTH MRS. UMA SRINIVASAN AND MR. R . SRINIVASAN AND, THEREFORE, THE HON'BLE BENCH HAS AP PLIED SECTION 69A OF THE ACT TO THE SUM ALLEGEDLY PAID TO MRS. UMA SRINIVASAN. (C) IT IS RESPECTFULLY SUBMITTED THAT THE HON' BLE BENCH HAS FAILED TO APPRECIATE THAT THE ENTIRE CONSIDERATION FOR PURCHA SE OF THE ITA NO. 821/DEL/2009 8 RESIDENTIAL PLOT OF LAND WAS PAID BY THE APPELLANT TO MR. R. SRINIVASAN, WHO WAS REPRESENTING HER WIFE MRS. WMA SRINIVASAN THROUGH A POWER OF ATTORNEY. IT IS RESPE CTFULLY SUBMITTED THAT THE HON'BLE BENCH HAS OVERLOOKED THE BANK DRAFT OF RS.34,91,250/- FROM ICICI HOME FINANCE COM PANY LIMITED (ENCLOSED AT PAGE 42 OF THE PAPER BOOK FILE D BY THE APPELLANT IN THE APPEAL PROCEEDINGS), WHICH WAS ALS O IN THE NAME OF MR. R. SRINIVASAN. IT IS SUBMITTED THAT NOT A SINGLE PENNY WAS PAID BY THE APPELLANT DIRECTLY TO MRS. UM A SRINIVASAN ON ACCOUNT OF PURCHASE OF PROPERTY. (D) IT IS, THEREFORE, RESPECTFULLY SUBMITTED THAT T HE AFORESAID INCORRECT OBSERVATION OF THE HON'BLE BENCH, BEING C ONTRARY TO THE RECORD AND THE SUBMISSIONS OF THE APPELLANT, IS A MISTAKE APPARENT FROM THE RECORD, WHICH HAS RENDERED THE IM PUGNED ORDER ILLEGAL AND LIABLE TO BE SET-ASIDE AND RECALL ED.' 12. A PERUSAL OF THE ABOVE CONTENTION SHOWS THAT IT HAS NOWHERE BEEN ASSERTED ON BEHALF OF THE ASSESSEE THAT ANY SU CH SUBMISSION WAS, IN FACT, MADE BEFORE THE TRIBUNAL A T THE TIME OF HEARING OF THE APPEAL. THEREFORE, IN THIS REGARD ALSO, THERE IS NO MISTAKE APPARENT FROM RECORD IN OUR ORDER DATED 20.1.2012. ACCORDINGLY, THIS CONTENTION OF THE ASSE SSEE STANDS REJECTED. 13. IN VIEW OF THE ABOVE DISCUSSION, OUR ORDER DATE D 20.1.2012 IS RECALLED FOR THE LIMITED PURPOSE OF CONSIDERING T HE AFFIDAVIT OF THE ASSESSEE, FILED WITH THE APPLICATION UNDER RULE 29 OF THE ITAT RULES. ORDERED ACCORDINGLY. FOR THIS LIMITED P URPOSE, THE APPEAL IS FIXED FOR HEARING ON 08 TH SEPTEMBER, 2014. NO FRESH NOTICE SHALL ISSUE, SINCE THIS DATE WAS ANNOUNCED A T THE TIME OF HEARING OF THE APPLICATION IN THE OPEN COURT. ITA NO. 821/DEL/2009 9 4. SINCE 08.9.2014 THE CASE WAS ADJOURNED ON VARIO US OCCASIONS ON ONE PRETEXT OR THE OTHER. FINALLY, THE CASE WAS FIXE D BEFORE THE BENCH ON 09.02.2016 AND HEARD. AS IT IS CLEAR FROM THE FIND ING OF THE TRIBUNAL GIVEN VIDE ORDER DATED 09.05.2014 VIDE PARA NO. 12 THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN OUR ORDER DATED 20.1.2012. ACCORDING LY, THIS CONTENTION OF THE ASSESSEE WAS REJECTED. HOWEVER, VIDE PARA NO. 13 O F THE TRIBUNALS ORDER DATED 09.5.2014 IT WAS HELD THAT THE TRIBUNAL ORDER DAT ED 20.1.2012 WAS RECALLED FOR THE LIMITED PURPOSE OF CONSIDERING THE AFFIDAV IT OF THE ASSESSEE, FILED WITH THE APPLICATION UNDER RULE 29 OF THE ITAT RULES. T HEREFORE, NOW THE CASE IS FIXED BEFORE US ONLY FOR THE LIMITED PURPOSE OF CONSIDERING THE AFFIDAVIT OF THE ASSESSEE, FILED WITH THE APPLICATION UNDER RULE 29 OF THE ITAT RULES. FOR THE SAKE OF CLARITY, WE ARE REPRODUCING HEREWITH THE AP PLCIATION UNDER RULE 29 OF THE ITAT RULES ALONGWITH AFFIDAVIT ATTACHED THEREWI TH AS UNDER:- BEFORE THE HON'BEE INCOME - TAX APPELLATE TRIBUNAL - BENCH - 'H' ITANO. 82I/DEL/09 ASSESSMENT YEAR - 2003-2004 IN THE MATTER OF: - MR. VIVEK PRAKASH 6314, F-6. ALOK VIHAR - 2, SECTOR-50, NOIDA,U.P. APPELLANT. VS. INCOME TAX OFFICER, WARD - 48(4), NEW DELHI. RESPONDENT. APPLICATION UNDER RULE 29 OF THE INCOME TAX APPELLA TE TRIBUNAL RULES,1963 FOR ADMISSION OF AFFIDAVIT OF THE APPELL ANT IN THE ABOVE CAPTIONED APPEAL MOST RESPECTFULLY SHOWETH: ITA NO. 821/DEL/2009 10 1. THAT THE ABOVE CAPTIONED APPEAL IS LISTED FOR HEARI NG FOR TODAY I.E. 10.01.2012 BEFORE THE HON'BLE BENCH. 2. THAT THE MAIN ISSUE IN THE PRESENT APPEAL IS IN RES PECT OF ADDITION OF RS. 25,59,500/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PROPERTY PURCHASED BY THE APPELLANT DURING THE YEAR UNDER CO NSIDERATION. 3. IT IS RESPECTFULLY SUBMITTED THAT THE ADDITION HAS BEEN SUSTAINED BY THE LEARNED CIT(A) BY DISBELIEVING THE SUBMISSIONS OF T HE APPELLANT WITH RESPECT TO THE SOURCE OF THE INVESTMENT. IT WAS SUB MITTED BY THE APPELLANT BEFORE THE LEARNED CIT(A) THAT HE HAD TAKEN A LOAN OF RS. 23,80,000/- FROM HIS FRIEND MR. PRABODH GUPTA FOR THE PURCHASE OF TH E PROPERTY. HOWEVER, THE APPELLANT WAS UNABLE TO GET A CONFIRMATION OF T HE SAME FROM MR. PRABODH GUPTA, WHO INITIALLY DENIED HAVING GIVEN AN Y LOAN TO THE APPELLANT BUT ADMITTED THAT HE ISSUED A DD BEARING NO. 656998 DATED 27.06.2002 FOR A SUM OF RS. 23,80,000/- IN THE NAME OF MR. R S RINIVASAN FROM WHOM THE APPELLANT HAD BOUGHT THE PROPERTY. IT IS SUBMIT TED THAT EVEN MR. R. SRINIVASAN IN HIS STATEMENT TO THE POLICE HAS STATE D THAT THE STATEMENT OF MR. PRABODH GUPTA WAS WRONG AND THAT OF THE APPELLA NT WAS CORRECT. 4. THAT THE APPELLANT DULY SUBMITTED BEFORE THE LEARNE D CIT(A) THE NEW STAND TAKEN BY MR. PRABODH GUPLA AND RELIED UPON THE STAT EMENT OF MR. R. SRINIVASAN AND PRAYED THAT HIS APPEAL MAY BE ALLOWE D ON THE BASIS OF OTHER CIRCUMSTANTIAL EVIDENCE WHICH PROVED BEYOND D OUBT THAT THE SOURCE OF INVESTMENT IN THE PROPERTY WAS LOAN FROM MR. PRA BODH GUPTA. 5. IT IS SUBMITTED THAT THE LEARNED CIT(A), ON THE CONTRARY, SUBJECTIVELY OPINED THAT THE MONEY BELONGING TO THE COMPANY M/S SAMSUNG ELECTRONIC INDIA PVT. LTD. HAD CHANGED HANDS FOR THE PERSONAL BENEFI T OF THE APPELLANT. IT IS RESPECTFULLY SUBMITTED THAT IT WAS IMPROPER FOR THE LEARNED CIT(A) TO OPINE SUBJECTIVELY WHEN NEITHER THE COMPANY WAS AN APPELL ANT NOR WAS IT A WITNESS BEFORE THE LEARNED CIT(A). 6. IT IS SUBMITTED THAT THE LEARNED CIT(A) SHOULD H AVE, AS PER THE CORRECT SETTLED LEGAL POSITION, EITHER REMANDED THE MATTER BACK TO THE LEARNED ITA NO. 821/DEL/2009 11 ASSESSING OFFICER OR SHOULD HAVE SUMMONED MR. PRABO DH GUPTA AND CROSS VERIFIED FROM HIM BY EXAMINING HIM. IT IS RESPECTFU LLY SUBMITTED THAT THE LEARNED CIT(A) DID NOT TAKE ANY OF THE ABOVE RECOUR SES AVAILABLE TO HIM UNDER THE LAW. ON THE CONTRARY, THE LEARNED CIT(A) DISALLOWED THE APPEAL OF THE APPELLANT AND SUSTAINED THE ADDITION OF RS. 25,59.000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PROPERTY. 7. IN THE CIRCUMSTANCES, THE APPELLANT HEREBY SE EKS LEAVE OF THE HON'BLE TRIBUNAL TO PLACE HIS AFFIDAVIT, WHICH IS ANNEXED H EREWITH, ON THE RECORD DULY TESTIFYING ON OATH THAT THE APPELLANT TOOK A P ERSONAL LOAN OF RS. 23,80,0007- FROM MR. PRABODH GUPTA WHICH FORMED ONE OF THE SOURCES OF INVESTMENT IN THE PROPERTY PURCHASED BY THE APPELLA NT. 8. UNDER THE AFORESAID FACTS AND CIRCUMSTANCES , THE HON'BLE TRIBUNAL MAY BE PLEASED TO: - (A) TAKE THE AFFIDAVIT OF THE APPELLANT ON RECORD I N TERMS OF RULE 28 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963; (B) AND PASS OTHER ORDERS/ DIRECTIONS WHICH IT MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE. IT IS PRAYED ACCORDINGLY. PLACE: NEW DELHI SD/- DATE: 10.01.2012 APPELLANT THROUGH SD/- COUNSEL FOR THE APPELLANT. BEFORE THE HON'BLE INCOME - TAX APPELLATE TRIBUNAL - BENCH - 'H' ITANO. 82I/DEL/09 ASSESSMENT YEAR - 2003-2004 IN THE MATTER OF: - MR. VIVEK PRAKASH 6314, F-6. ALOK VIHAR - 2, SECTOR-50, NOIDA,U.P. APPELLANT. VS. ITA NO. 821/DEL/2009 12 INCOME TAX OFFICER, WARD - 48(4), NEW DELHI. RESPONDENT. AFFIDAVIT OF MR. VIVEK PRAKASH, S/O DR. OM PRAKASH, R/O 6314, F-6, ALOK VIHAR-2, SECTOR-50, NOIDA UP I, THE ABOVE NAMED DEPONENT, DO HEREBY SOLEMNLY AF FIRM AND STATE AS UNDER:- 1. THAT I AM THE APPELLANT IN THE ABOVE CAPTIONED APPE AL AND, AS SUCH, AM FULLY CONVERSANT WITH THE FACTS OF MY CASE AND COMP ETENT TO SWEAR AND DEPOSE TO THIS AFFIDAVIT. 2. THAT I STATE THAT I TOOK A PERSONAL LOAN OF RS. 23, 80,000/- FROM MR. PRABODH GUPTA ON 27.6.2002. THAT I REQUESTED MR. PR ABODH GUPTA TO ISSUE ME A DEMAND DRAFT OF RS. 23,80,000/- DIRECTLY IN TH E NAME OF MR. R. SRINIVASAN WITH WHOM I WAS NEGOTIATING TO BUY A PLO T OF LAND SITUATED AT NOIDA. HE WAS REPRESENTING HIS WIFE MRS. UMA SRINIV ASAN THROUGH A POWER OF ATTORNEY. 3. THAT I STATE THAT IN LIEU OF MY REQUEST MR. PRABODH GUPTA ISSUED ME A DD BEARING NO. 656998 DATED 27.6.2002 IN THE NAME OF R . SRINIVASAN FOR A SUM OF RS. 23,80,000/-. THE SAME WAS HANDED OVER BY ME IN PERSON TO MR. R. SRINIVASAN AS PART CONSIDERATION FOR SALE OF LAND. 4. THAT I STATE THAT I COULD NOT FILE THE REQUISITE DE TAILS BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS BECAUSE I WAS IN JUDICIAL CUSTODY FROM 08.12.2005 TO 12.9.2006 AND D URING THAT TIME NEITHER I NOR MY CA HAD ACCESS TO ANY DOCUMENTS AS THEY WERE SEIZED BY THE POLICE IN FIR NO. 253/05 OF P.S. KALKAJI. SD/- DEPONENT VERIFICATION: VERIFIED AT NEW DELHI ON THIS THE 10 TH JAN, 2012 THAT THE CONTENTS OF THE ABOVE AFFIDAVIT ARE TRUE AND CORRECT TO MY KNOWLEDGE. SD/- DEPONENT ITA NO. 821/DEL/2009 13 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED T HE RELEVANT RECORDS, ESPECIALLY THE TRIBUNALS ORDER DATED 09.5.2014 WHE REIN THE ORDER OF THE TRIBUNAL DATED 20.1.2012 WAS RECALLED FOR THE LIMI TED PURPOSE OF CONSIDERING THE AFFIDAVIT OF THE ASSESSEE, FILED WITH THE APPLI CATION UNDER RULE 29 OF THE ITAT RULES. AFTER PERUSING THE CONTENTS OF THE APP LICATION UNDER RULE 29 OF THE ITAT RULES ALONGWITH THE AFFIDAVIT OF THE ASSESSEE DATED 10.2.2012, WE ARE OF THE CONSIDERED VIEW THAT SAME GOES TO THE ROOT OF T HE MATTER AND NEEDS THOROUGH VERIFICATION AND EXAMINATION AT THE LEVEL OF THE AO. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE SETTING ASIDE THE ISSUE TO THE FILE OF THE AO AND CONSIDER THE AFFIDAVIT OF THE ASSESSEE, FILED WITH THE APPLICATION UNDER RULE 29 OF THE ITAT RULES AND VERIFY AND EXAMINE THE CONTE NTS THEREOF. THEREAFTER, PASS A FRESH ORDER ON THE ISSUE IN DISPUTE, AFTER G IVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/2/2016. SD/- SD/- [L.P. SAHU] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 12-02-2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR