Rajbir, Panipat V. ITO, Ward-5, Panipat

ITA 8319/DEL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8442 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 31-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 8319/DEL/2018 ASSESSMENT YEAR: 2010-11 RAJBIR VS. ITO, WARD-5, S/O RAM DHARI, PANIPAT VILLAGE MADLAUDA, PALIKA BAZAR, PANIPAT PANIPAT-132103 HARYANA-132113 (PAN: DFTPS8949B) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. PRADEEP KUMAR, CA REVENUE BY : MS. EKTA VISHNOI, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 22.10.2018 PASSED BY THE LD. CIT(A), KARNAL RELATING TO ASSESS MENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THAT THE ORDER PASSED UNDER SECTION 144/147 IS NOT VALID AND LIABLE TO BE QUASHED AT THE VERY OUTSET AS NO N OTICE U/S. 148 HAS EVER BEEN SERVED ON THE ASSESSEE. 2. THAT AO HAS NOT PROVIDED THE COPY OF NOTICE ISSUED U/S. 148 AND THE COPY OF REASONS RECORDED BY HIM FOR REO PENING OF THE CASE EVEN ON MAKING SPECIFIC REQUEST FOR PRO VIDING THE SAME. 3. THAT AO HAS NOT PROVIDED THE OPPORTUNITY OF BEING H EARD EVEN ON MAKING SPECIFIC REQUEST FOR PROVIDING THE S AME. 4. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADD ITION MADE BY THE AO FOR A SUM OF RS. 10,00,000/- WITHOUT CONSIDERING THE EVIDENCES, EXPLANATIONS AND DETAILS FURNISHED BY THE ASSESSEE. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE 2 BY AO OF A SUM OF RS. 10,00,000/- ON THE SOLE GROUN D THAT A CASH DEPOSIT OF RS. 10,00,000/- HAS BEEN MADE IN THE JOINT BANK A/C IN WHICH THE ASSESSEE WAS JOINT HOLD ER WITHOUT APPRECIATING THE FACT THAT THE MONEY HAS BE EN DEPOSITED BY THE SECOND HOLDER OF THE ACCOUNT. 6. THAT EACH GROUND OF APPEAL IS WITHOUT PREJUDICE TO ONE ANOTHER. 7. THAT THE APPELLANT RESERVES TO ITSELF, THE RIGHT T O ADD, ALTER, AMEND, SUBSTITUTE, WITHDRAW AND / OR ANY GRO UND(S) OF APPEAL ON OR BEFORE THE DATE OF HEARING. 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 BREVITY. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT AO HAS PASSED THE EXPARTE ORDER U/S. 144/147 OF THE A CT. HE FURTHER SUBMITTED THAT NO NOTICE U/S. 148 OF THE ACT WAS S ERVED UPON THE ASSESSEE AND THIS ASSESSMENT WAS COMPLETED BY THE A O AND WRONGLY CONFIRMED BY THE LD. CIT(A), WHICH IS CONTRARY TO T HE PRINCIPLE OF NATURAL JUSTICE. HE FURTHER SUBMITTED THAT ASSESSEE HAS R EQUESTED FOR VARIOUS EVIDENCES WHICH HAS BEEN USED BY THE REVENUE AUTHOR ITIES AGAINST THE ASSESSEE, BUT THE SAME HAS NOT BEEN SUPPLIED AND TH E ADDITION IN DISPUTE HAS WRONGLY BEEN MADE. HE REQUESTED THAT THE ASSES SEE IS HAVING ALL THE EVIDENCES TO SUBSTANTIATE HIS CASE BEFORE HIM. HE HAS ALSO FILED THE 02 PAPER BOOKS CONTAINING PAGES ONE IS CONTAINING ANN EXURE A-1 TO A-41 AND ANOTHER CONTAINING PAGES 1-22 IN WHICH HE HAS A TTACHED THE COPY OF LETTER DATED 29.12.2017 FILED BEFORE AO ALONGWITH T HE FOLLOWING ANNEXURES I.E. COPIES OF FORM; ITR ACKNOWLEDGEMENT OF MR. TEJ BIR SINGH FOR AY 2010-11 AND LETTER DATED 8.10.2018 FILED BEFORE THE LD. CIT(A) ALONGWITH COPY OF THE BANK STATEMENT AND STATED THAT THESE E VIDENCES ARE VERY MUCH ESSENTIAL TO ADJUDICATE THE ISSUES IN DISPUTE BY THOROUGHLY EXAMINING THE SAME AT THE LEVEL OF THE ASSESSING OF FICER, AFRESH. HENCE, HE REQUESTED THE BENCH TO SET ASIDE THE ISSUE IN DI SPUTE TO THE FILE OF THE 3 AO TO FRAME THE ASSESSMENT DE-NOVO AND DECIDE THE ISSUES IN DISPUTE, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER S OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. I AM OF THE VIEW THAT THERE IS NO DOUBT THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE AO. BUT I FIND THAT AO HAS PASSED THE EXPARTE ORDER U/S. 144/147 O F THE ACT AND IT WAS THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT NO NOTICE U/S. 148 OF THE ACT WAS SERVED UPON THE ASSESSEE AND THEREF ORE, ASSESSMENT WAS COMPLETED BY THE AO EXPARTE, WHICH IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. I NOTE THAT ASSESSEE HAS REQUEST ED FOR VARIOUS EVIDENCES WHICH HAS BEEN USED BY THE REVENUE AUTHORITIES AGAI NST THE ASSESSEE, BUT THE SAME HAS NOT BEEN SUPPLIED AND THE ADDITION IN DISPUTE HAS BEEN MADE. SINCE ASSESSEE IS NOW HAVING ALL THE EVIDENCE S TO SUBSTANTIATE HIS CASE AND FILED THE SAME EVIDENCES IN THE SHAPE OF 02 PAPER BOOKS CONTAINING PAGES ONE IS CONTAINING ANNEXURE A-1 TO A-41 AND ANOTHER CONTAINING PAGES 1-22 IN WHICH HE HAS ATTACHED THE COPY OF LETTER DATED 29.12.2017 FILED BEFORE AO ALONGWITH THE FOLLOWING ANNEXURES I.E. COPIES OF FORM; ITR ACKNOWLEDGEMENT OF MR. TEJBIR SINGH FO R AY 2010-11 AND LETTER DATED 8.10.2018 FILED BEFORE THE LD. CIT(A) ALONGWITH COPY OF THE BANK STATEMENT AND STATED THAT THESE EVIDENCES ARE VERY MUCH ESSENTIAL TO ADJUDICATE THE ISSUES IN DISPUTE BY THOROUGHLY E XAMINING THE SAME AT THE LEVEL OF THE ASSESSING OFFICER, AFRESH. HENCE, I SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTIONS TO FRAME THE ASSESSMENT DE-NOVO AND DECIDE THE ISSUES IN DISPUTE, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . ASSESSEE IS ALSO DIRECTED THROUGH HIS COUNSEL TO FILE ANY OTHER EVI DENCES/ DOCUMENTS WITH THE AO AT THE TIME OF PROCEEDINGS TO SUBSTANTIATE HIS CASE AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND FULLY COOPERAT E WITH THE AO. 4 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 11/10/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 11/10/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES