Arvind Kumar Singh, Ghaziabad V. ITO, ward- 1(1), Ghaziabad

ITA 856/DEL/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 7837 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Unexplained investment; Principle of natural justice; Reason to believe
• Section: 147; 148; 144

Judgement Text

1 ITA NO. 856/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D+SMC NEW DELHI BEFORE SHRI N. K. SAINI, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 856/DEL/2 018 ( A.Y 2010-11) ARVIND KUMAR SINGH C/O. SANDEEP SAPRA, ADVOCATE, C- 763, NEW FRIENDS COLONY, NEW DELHI BJDPS2730N (APPELLANT) VS ITO WARD-1(1) UTTAR PRADESH GHABIZBAD (RESPONDENT) APPELLANT BY SH. SANDEEP SAPRA, ADV RESPONDENT BY SH. SURENDER PAL, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 31/10/2017 PASSED BY CIT (A)- GHAZIABAD FOR ASSESSMENT YEAR 20 09-10. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1) THAT THE IMPUGNED ASSESSMENT ORDER DATED 28/03/2 016 PASSED U/S 144 R.W.S. 147 OF I.T. ACT IS BAD IN LAW AND DESERVES T O BE QUASHED/ANNULLED ON VARIOUS FACTUAL AND LEGAL GROUNDS INCLUDING THE FOL LOWING: A) THERE IS NO PROPER VALID AND LEGAL SERVICE OF NO TICE U/S 148 OF THE I.T. ACT ON THE APPELLANT. B) THERE IS NO PROPER VALID AND LEGAL SERVICE OF N OTICE U/S 143(2) OF THE I.T. ACT ON THE APPELLANT. 2) THAT THE IMPUGNED ASSESSMENT ORDER PASSED U/S 1 44 R.W.S.147 OF I.T. ACT DESERVES TO BE QUASHED/ANNULLED AS THE PROVISIONS O F SECTION 147/148 I.T. ACT ARE NOT APPLICABLE TO THE FACTS OF APPELLANT'S CASE INTER ALIA BECAUSE: A) THE REASONS AS RECORDED ARE VAGUE. DATE OF HEARING 19.09.2018 DATE OF PRONOUNCEMENT 27.09.2018 2 ITA NO. 856/DEL/2018 B) THE AO RELIED SOLELY ON THE AIR INFORMATION TO RECORD IN THE REASONS THAT SOURCE OF INVESTMENT IN PURCHASE OF IMMOVABLE PROPE RTY BY THE APPELLANT REMAINED UNEXPLAINED. IN OTHER WORDS, THE AO HAD NO T APPLIED HIS OWN MIND INDEPENDENTLY FOR RECORDING THE REASONS. C) THERE IS NO NEXUS BETWEEN THE REASONS RECORDED AND THE ALLEGED ESCAPEMENT OF INCOME. D) THE REASONS RECORDED INDICATE THAT THE AO HAS A CTED ON MERE SURMISES AND SUSPICION FOR MAKING FISHING AND ROVING ENQUIRE S. THE REQUIREMENT OF LAW IS REASON TO BELIEVE AND NOT REASON TO SUSPECT'. E) THERE IS NO FAILURE ON THE PART OF THE APPELLAN T TO DISCLOSE HIS CORRECT AND TRUE INCOME CHARGEABLE TO TAX FOR THE YEAR UNDER CO NSIDERATION. 3) THAT WITHOUT PREJUDICE TO GROUND NO. 1 AND 2 AB OVE, THE IMPUGNED ASSESSMENT ORDER PASSED U/S 144 R.W.S.147 OF I.T. A CT DESERVES TO BE QUASHED/ANNULLED AS NO PROPER AND ADEQUATE OPPORTUN ITY OF BEING HEARD HAD BEEN GRANTED TO THE APPELLANT. 4) THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING THE ADDITION OF RS.9,88,083/- U/S 69 OF I.T. ACT ON ACC OUNT OF UNEXPLAINED INVESTMENT MADE IN THE PURCHASE OF PROPERTY. AT ANY RATE, THE ADDITION AS MADE IS VEY EXCESSIVE. 5) THAT THE ORDER AS PASSED BY THE LD. CIT(A) IN A N EX-PARTE MANNER IS WHOLLY UNJUSTIFIED AND ILLEGAL. 6) THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, A MEND/MODIFY THE GROUNDS OF APPEAL. 3. THE ASSESSEE DERIVED INCOME FROM RUNNING OF SCHO OL AND RETURN WAS FILED SHOWING INCOME OF RS.154850/-. THEREAFTER QUERY LET TER DATED 11-07-2012 WAS RECEIVED RELATING TO PURCHASE OF PROPERTY AGAINST C ONSIDERATION OF RS. 13261500/-. SAID QUERY LETTER WAS HANDED OVER TO CHARTERED ACCOUNTANT (AUTHORIZED REPRESENTATIVE) AND IT WAS TOLD THAT ON LY L/6TH SHARE WAS PURCHASED BY THE ASSESSEE AND SAID-PROPERTY WAS PUR CHASED JOINTLY WITH OTHER 5-PERSONS, AND ASSESSEE ONLY INVESTED RS 9,88,083/- IN SAID DEAL INCLUDING STAMP PAPERS VALUE AND REGISTRATION EXPENSES. THE ASSESSING OFFICER MADE ADDITION OF RS.9,88,083/-. 3 ITA NO. 856/DEL/2018 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT ALL INFORMATION AND EV IDENCES WERE ALSO GIVEN TO SAID AUTHORIZED REPRESENTATIVE TO PROVE AVAILABI LITY OF SUM OF RS.9,88,083/- SO INVESTED. THE LD. AR SUBMITTED THAT ONLY ON REC EIPT OF ORDER, IT HAS COME TO NOTICE OF ASSESSEE THAT SAID EVIDENCES ETC. WERE NO T FILED IN INCOME TAX DEPARTMENT IN TIME. THUS, THE LD. AR SUBMITTED THA T THE ADDITION OF RS.9,88,083/- AND DETERMINATION OF INTEREST PAYABLE ARE DISPUTED. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER HAS PASS ED EX-PARTE ASSESSMENT ORDER U/S 144 R.W.S.147 OF THE INCOME TAX ACT, 1961. THE CIT(A) HAS NOT AT ALL CONSIDERED THE EVIDENCES FURNISHED BY THE ASSESSEE BEFORE HIM. THEREFORE, IN THE INTEREST OF JUSTICE IT WILL BE APPROPRIATE TO REMAN D BACK THIS ISSUE CONTESTED BY THE ASSESSEE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHOULD GIVE THE OPPORTUNITY OF HEARING TO THE ASSESSEE BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THEREFORE, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH SEPTEM BER, 2018. SD/- SD/- (N. K. SAINI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 27/09/2018 R.N* 4 ITA NO. 856/DEL/2018 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 20.09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24.09.2018 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 2 7 . 09.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 7 . 09.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 7 . 09.2018 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