Suresh Kumar, Delhi V. ITO,ward-37(1), New Delhi

ITA 865/DEL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5352 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 20-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SURESH KUMAR
• Keywords: Principle of natural justice; Additional evidence; Set aside
• Section: 142(1); 147; 69; 148; 144

Judgement Text

1 | P A GE IN THE INCOME TAX APPELLATE TRIBUNAL DELHI SMC-1 BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.865/DEL/2020 ASSESSMENT YEAR : 2011-12 SURESH KUMAR, H.NO.814, MAIN CHOWK POOTH KHURD, BAWANA, DELHI-110039. PAN-BNCPK1326D VS ITO, WARD-37(1), NEW DELHI. APPELLANT RESPONDENT APPELLANT BY SH. SURESH KUMAR (APPELLANT) RESPONDENT BY SH. R.K.GUPTA, SR.DR DATE OF HEARING 08.04.2021 DATE OF PRONOUNCEMENT 1 8 .0 5 .2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2011-12 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), NEW D ELHI DATED 05.12.2019. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND FA CTS OF THE CASE BY CONFIRMING THE ADDITION OF RS.25 LACS WITHOUT PROVI DING REASONABLE OPPORTUNITY TO THE APPELLANT TO REPRESENT HIS CASE. THUS, THE ADDITION IS MADE ON THE BASIS OF PRE-DETERMINED MIND AND ON THE BASIS OF SURMISES AND CONJECTURES AND THEREFORE THE ADDITION OF RS.25 LACS NEEDS TO BE QUASHED AND ORDER NEEDS TO BE SET ASIDE. 2. THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT OUT OF CASH BALANCE A LLEGING THE SAME TO BE INCOME CHARGEABLE TO TAX U/S 69 WITHOUT APPRECIATIN G THAT ADDITION U/S 69 CAN BE MADE FOR UNDISCLOSED INVESTMENT WHEREAS THE CASH DEPOSITED INTO ITA NO.865/DEL/2020 2 | P A GE SAVING ACCOUNT CANNOT BE CONSTRUED AS INVESTMENT AN D THUS ADDITION SUSTAINED IS NOT LEGALLY VALID AND BEYOND THE PRECI NTS OF THE CONCERNED SECTION. THE CONCERNED ORDER NEEDS TO BE QUASHED A ND SET ASIDE. 3. THAT THE LD.CIT(A) FAILED TO APPRECIATE THAT THE ASSESSMENT WAS COMPLETED U/S 144 R.W.S. 147 OF THE ACT. THUS, KEE PING IN MIND THE CONCEPT OF NATURAL JUSTICE THE APPELLANT SHOULD HAV E BEEN ALLOWED TO REPRESENT THE CASE AND THE APPLICATION U/S 46A MUST HAVE BEEN ACCEPTED AND AFTER DETERMINING THE FACTS OF THE CASE THE ORD ER MUST HAVE BEEN PASSED. THE ORDER PASSED BREACHES THE LEGAL CONCEP T OF ARTICLE 21 OF THE CONSTITUTION AND THEREFORE THE SAME NEEDS TO BE QUA SHED AND SET ASIDE. 2. FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE MADE CASH DEPOSIT OF RS.25,00,000/- IN HIS SAVING BANK ACCOUN T WITH STATE BANK OF INDIA DURING FINANCIAL YEAR 2010-11 RELEVANT TO ASSESSMEN T YEAR 2011-12 AS PER AIR INFORMATION AND THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT ON THE BASIS OF AIR INFORMATION. HOWEVER, AS PER RECORDS, THE ASS ESSEE HAD NOT FILED HIS ITR FOR ASSESSMENT YEAR 2011-12. THUS, NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (THE ACT) WAS ISSUED ON 29.03.2018 AND DULY SERVED ON THE ASSESSEE. IN RESPONSE TO THE SAID NOTICE, NO RETURN OF INCOME FO R ASSESSMENT YEAR 2011-12 WAS FILED BY THE ASSESSEE. FURTHER, A STATUTORY NO TICE U/S 142(1) WAS ISSUED ON 16.08.2018 FIXING THE CASE FOR HEARING ON 27.08.201 8. ON THE FIXED DATE, NEITHER ANY ONE APPEARED NOR ANY APPLICATION WAS FI LED FOR ADJOURNMENT. SUBSEQUENTLY, NOTICE WAS ISSUED ON 31.10.2018 FIXIN G THE CASE FOR HEARING ON 06.11.2018. AGAIN NOTICE DATED 13.1.2018 WAS ISSU ED U/S 142(1) OF THE ACT AND WAS PERSONALLY SERVED UPON THE ASSESSEE WHICH W AS RECEIVED BY MS. MEENAKSHI. AGAIN PENALTY SHOW CAUSE NOTICE DATED 2 0.11.2018 U/S 271(1)(B) OF THE ACT WAS ISSUED TO THE ASSESSEE FIXING THE DATE OF HEARING ON 27.11.2018. ITA NO.865/DEL/2020 3 | P A GE ON THE FIXED DATE, NEITHER ANY ONE APPEARED NOR ANY APPLICATION FOR ADJOURNMENT WAS FILED. AGAIN, FINAL SHOW CAUSE NOT ICE U/S 144 OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE BY THE INSPECTO R OF THE WARD ON 28.11.2018 FOR COMPLIANCE BY 04.12.2018. ON THE FI XED DATE, NEITHER ANY ONE APPEARED NOR ANY APPLICATION WAS FILED FOR ADJOURNM ENT. DESPITE ISSUANCE OF SEVERAL NOTICES, NO COMPLIANCE WAS MADE. THE ASSES SING OFFICER, THEREFORE, PROCEEDED TO COMPLETE THE ASSESSMENT ON THE MERITS AND ON THE BASIS OF MATERIAL/DETAILS AVAILABLE ON THE FILE. 3. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED APPEAL BEFORE LD.CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS, DISMISSED THE AP PEAL OF THE ASSESSEE. 4. NOW, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. 5. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT LD.CIT(A) FAILED TO ADMIT THE ADDITIONAL EVIDENCES WHICH ARE MATERIAL FOR ADJUDICATION OF THE CASE. HE FURTHER SUBMITTED THAT IN THE INTERES T OF PRINCIPAL OF NATURAL JUSTICE, THE ADDITIONAL EVIDENCES AS FILED, OUGHT T O HAVE BEEN ADMITTED AND HE PRAYED THAT THE MATTER MAY BE REMANDED BACK TO THE ASSESSING OFFICER AFTER ADMISSION OF ADDITIONAL EVIDENCES. 6. PER CONTRA, LD. SR. DR OPPOSED THE SUBMISSIONS A ND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORDS. I FIND THAT LD.CIT(A) HAS REJECTED THE RE QUEST OF THE ASSESSEE FOR ADMISSIONS OF ADDITIONAL EVIDENCES. HOWEVER, CONSI DERING THE FACT THAT THE ITA NO.865/DEL/2020 4 | P A GE ASSESSEE HAS DEMONSTRATED THAT THESE EVIDENCES WERE NOT AVAILABLE AT THE TIME OF ASSESSMENT PROCEEDINGS. I THEREFORE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ASSESSMENT TO THE ASSESSING OFFICER WH O IS HEREBY DIRECTED TO CONSIDER THE ADDITIONAL EVIDENCES AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE AND FRAME THE ASSESSMENT AFRESH. THE GROUNDS RAISE D BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIR TUAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 18 TH MAY, 2021. SD/- (KUL BHARAT) JUDICIAL MEMBER * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI