ITO, New Delhi V. Sayed Shamim Anwar, New Delhi

ITA 850/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4116 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 02-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G G KAMEI
• Section: 142(1); 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `G : NEW DELHI) BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.850/DEL./2010 (ASSESSMENT YEAR : 2005-06) ITO, WARD 36(2), VS. SAYED SHAMIM ANWAR, NEW DELHI. B-16, NEW BRIJPURI, NEAR MASJID, NEW DELHI. (PAN/GIR NO.ADZPA5715C) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MS. G.G. KAMEI, SR.DR ORDER PER A.D. JAIN: JM THE DEPARTMENT HAVE RAISED THE FOLLOWING THREE GROU NDS IN THIS APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.12,47,000/- MA DE U/S 68 OF THE I.T. ACT BY THE AO. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D.CIT(A) HAS ERRED IN ACCEPTING THE SUBMISSION THE FRESH EVIDENCE OF T HE ASSESSEE FILED BEFORE HIM AS DISCUSSED ON PAGE 6 IN PARA 6.2 OF AP PELLATE ORDER AND CONSIDERING THIS FAMILY SETTLEMENT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D.CIT(A) HAS ERRED IN PROVIDING OPPORTUNITY TO THE AO THUS THERE IS A VIOLATION OF RULE 46A(1) OF THE I.T. ACT. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESP ITE DATE OF HEARING HAVING BEEN NOTED, AS AVAILABLE FROM THE ORDER SHEET. FINDING THAT THE MATTER CAN BE DECIDED IN THE ABSENCE OF THE ASSESSEE, WE ARE DOING SO. 3. THE AO, INTER ALIA, MADE ADDITION OF RS.12,47,00 0/- U/S 68 WHILE COMPLETING THE ASSESSMENT U/S 144 OF THE I.T. ACT. HE OBSERVED TH AT VIDE NOTICE DATED 8.2.2007, ISSUED ITA NO.850/DEL./2010 (AY : 2005-06) 2 U/S 142(1) OF THE ACT, THE ASSESSEE WAS ASKED TO EX PLAIN THE SOURCE OF THE DEPOSITS; AND THAT DESPITE VARIOUS OPPORTUNITY PROVIDED, THE ASSE SSEE HAD FAILED TO EXPLAIN THE SOURCE OF THESE DEPOSITS. THE AO HELD THAT DEPOSITS OF R.12, 47,000/- TO BE OUT OF UNDISCLOSED SOURCES OF THE INCOME OF THE ASSESSEE FOR THE YEAR. 4. BEFORE THE LD.CIT(A), THE ASSESSEE, FOR THE FIR ST TIME, SUBMITTED THE FOLLOWING FACTS/DOCUMENTS: - THE LD.ITO HAS ERRED IN LAW FOR NOT PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT AND FILED THE RELEVANT DOCUMENT S AND INFORMATION WHICH AS COLLECTED/PREPARED BY HIM. - THE AO HAS MADE ADDITION ON CASH TRANSACTION OF R S.12,47,000/- IN THE BANK STATEMENT OF THE ASSESSEE, WHICH IS WRONG, ILLEGAL AND AGAINST THE FACTS OF THE CASE, AS THE ASSESSEE HAS RECEIVED THE SAID AMOUNT VIDE FAMILY SETTLEMENT DEED, PHOTOCOPY OF THE SAME IS ENCLOSED HEREWITH FOR NECE SSARY VERIFICATION AND EXAMINATION. - PHOTOCOPY OF RENT AGREEMENT IS ENCLOSED HEREWITH FOR CHANGE OF ADDRESS PROOF. - PHOTOCOPY OF BANK PASS BOOK IS ENCLOSED. - COPY OF OLD SAVINGS BANK ACCOUNT IS ENCLOSED. - COPY OF STATEMENT OF AFFAIRS AS ON 31.03.2005 IS ENCLOSED. - PHOTOCOPY OF INCOME-TAX RETURN ALONG WITH COMPUTA TION ARE ENCLOSED. 5. ON PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE CIT(A) DID NOT AFFORD ANY OPPORTUNITY IN THE SENSE THAT THE AFORESAID DOCUMEN TS PRODUCED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE CIT(A) WERE NOT CONFRONTED TO THE AO, THEREBY VIOLATING THE PROVISIONS OF RULE 46A OF THE I.T. RULES, 1962. REL EVANT PORTION OF THE ORDER UNDER APPEAL RUNS AS UNDER: 6. I HAVE CONSIDERED THE SUBMISSION MADE BY THE A SSESSEE AS ELL AS THE DECISION TAKEN BY THE AO IN THE ASSESSMENT ORDER. ADDITION ON ACCOUNT OF CASH DEPOSIT IN BANK OF RS.12,47,000/-. SH. V.K. GANDHI, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEA4RED AND PRODUCED THE BOOKS OF ACCOUNT AND SUP PORTING VOUCHERS. IT IS A CASE OF NON-PRODUCTION OF THE DETAILS BEFORE T HE AO WHICH RESULTED IN THE ASSESSMENT ORDER ESTIMATING THE ABOVE ADDITIONS MADE. 6.1 HOWEVER, AFTER EXAMINING THE FACTS OF THE CASE AND THE DETAILS PRODUCED BY THE APPELLANT AT HE TIME OF APPEAL, I A M OF THE VIEW THAT THE ASSESSEE WAS GENUINELY PREVENTED FROM APPEARING BEF ORE THE AO AS REQUIRED. BESIDES, THE ASSESSEE HAD NO SUFFICIENT MEANS TO ENGAGE AN AUTHORIZED REPRESENTATIVE IN THOSE CIRCUMSTANCES AN D THE NON-FURNISHING OF DETAILS WAS NOT DELIBERATE ON THE PART OF THE AS SESSEE. ITA NO.850/DEL./2010 (AY : 2005-06) 3 6.2 THE APPELLANT ON HIS PART PRODUCED A PHOTOCOPY OF THE FAMILY SETTLEMENT DEED AS WELL AS THE BANK ACCOUN6T EVIDEN CING THE DEPOSIT OF SUCH SUMS RECEIV4ED OUT OF THE FAMILY SETTLEMENT DE ED. NON-PRODUCTION OF THE ABOVE BEFORE THE AO WARRANTED SUCH AN ADDITION. BASED ON THE FACTS AVAILABLE ON RECORD AND THE DETAILED SUBMISSIONS MA DE BY THE ASSESSEE IN SUPPORT OF THE SOURCES OF CASH DEPOSITS, I AM CONVI NCED THAT THE EXPLANATION OF THE ASSESSEE IS VALID AND GENUINE. 6.3 ACCORDINGLY, I HOLD THAT IT WAS NOT WARRANTED U PON THE AO TO MAKE THE ESTIMATED ADDITIONS AS THERE HAS BEEN NO DISCRE PANCY NOTICED IN THE BOOKS OF ACCOUNT. ACCORDINGLY, THE ADDITION OF RS. 12,47,000/- MADE ON THIS COUNT IS ACCORDINGLY, IS HEREBY DELETED. 6. FROM THE ABOVE, IT IS EVIDENT THAT THERE HAS BEE N A VIOLATION OF RULE 46 OF THE I.T. RULES, INASMUCH AS THE CIT(A) HAS ACCEPTED FRESH EV IDENCE OF THE ASSESSEE AT THE BACK OF THE AO. THEREFORE, IN THE INTEREST OF JUSTICE, WE REMIT THIS MATTER TO THE FILE OF THE AO, TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, IN THE LI GHT OF THE AFORESAID EVIDENCES FURNISHED BY THE ASSESSEE BEFORE THE CIT(A). THE A O SHALL AFFORD ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE SHALL, NO DOUBT, COOPERATE WITH THE AO. 8. IN THE RESULT, FOR STATISTICAL PURPOSE, THE APPE AL OF THE DEPARTMENT IS TREATED AS ALLOWED. 8. ORDER PRONOUNCED IN OPEN COURT ON THE DATE OF HE ARING I.E. 03.05.2010. SD/- SD/- (A.K. GARODIA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, MAY 03, 2010. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXII, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR/ITAT