Sh. Sonu Gupta, New Delhi V. ITO, New Delhi

ITA 896/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1747 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 04-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 17-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - I , NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER ITA NO. 896 /DEL/2014 ASSESSMENT YEAR : 2008 - 09 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 2017.12.2013 OF LD CIT(A), XVIII, NEW DELHI PERTAINING TO FY 2008 - 09 ON THE FOLLOWING GROUNDS INCLUDING GROUND NO.1, WHICH READS AS UNDER: - 1. THAT THE ORDERS PASSED U/S. 143(3) OF T HE ACT DATED 14.12.2010 BY THE INCOME TAX OFFICER, WARD 26(2), NEW DELHI ARE BAD IN LAW AND AGAINST THE FACTS OF THE CASE. 2. THAT THE ASSESSMENT ORDER HAS BEEN PASSED WITHOUT AFFORDING AN OPPORTUNITY TO PRESENT HIS CASE. 3. THAT THE APPELLANT WAS NEVER GIVEN AN OPPORTUNITY TO SUBSTANTIATE HIS CLAIM AND PRODUCE THE ALLEGED DONORS/PER SONS. 4. THAT THE AO MADE THE ADDITION WITHOUT APPRECIATING THE EVIDENCES AND DOCUMENTS ON RECORDS AND PROCEEDED TO MAKE UNILATERAL ADDITIONS. 5. THAT THE ADDITION OF RS .5,30,000/ - DESERVES TO BE DELETED. 2. THE LD COUNSEL FOR THE ASSESSEE INVITING ATTENTION TO THE IMPUGNED ORDER SUBMITTED THAT THE ORDER HAS BEEN PASSED EX PARTE ON ACCOUNT OF NON - REPRESENTATION ON THE PART OF THE ASSESSEE AS THE COUNSEL OF THE ASSESSEE WAS SUFFERING FROM VERTIGO AND CERVICAL SPONDYLITIS. IN THE CIRCUMSTANCES IT WAS SUBMITTED THAT THE APPEAL MAY BE RESTORED AND HE WOULD UNDERTAKE THAT THE ASSESSEE WOULD BE REPRESENTED. THE LD SR. DR DR. ANJULA JAIN CONSIDER ING THE PLEADINGS OF THE LD AR HAD NO OBJECTION IF THE OPPORTUNITY OF BEING HEARD IS GRANTED TO THE ASSESSEE. SONU GUPTA, SD - 43, VISHNU GARDEN, NEW DELHI PAN:ADCPG2685G VS. ITO, WARD - 26(2) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH.BINAY BAHL, ADVOCATE RESPONDENT BY : DR. ANJULA JAIN, SR. DR DATE OF HEARING : 04.08.2015 DATE OF PRONOUNCEMENT : 12. 08.2015 PAGE 2 OF 4 3. THE RECORDS SHOWS THAT IN THE YEAR UNDER CONSIDERATION THE ASSESSEE DECLARED AN INCOME OF RS.1,08,470/ - . AFTER ISSUANCE OF NOTICE U/S 143(2) T HE RETURNS WAS SELECTED FOR SCRUTINY THROUGH CASS AND THE ASSESSMENT WAS COMPLETED BY AN ORDER U/S 143(3) OF THE INCOME TAX ACT, 1961. A PERUSAL OF THE SAME SHOWS THAT THE ASSESSEE WAS REQUIRED TO EXPLAIN THE GIFT OF RS.5,30,000/ - STATED TO BE RECEIVED FROM MOTHER, BROTHER, FRIEND AN D FATHER - IN - LAW AND CREDIT FROM FRIENDS. FOR WANT OF NECESSARY EVIDENCE THE ADDITION WAS MADE. APART FROM THE MAIN GROUNDS RAISED ON MERITS IT IS SEEN THAT THE ASSESSEE ALSO PLEADED LACK OF OPPORTUNITY OF BEING HEARD BEFORE THE AO. THE LD COUNSEL OF THE AS SESSEE PLEADED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF AO . THE SAID REQUEST WAS OBJECTED TO BY THE LD SR. DR WHO STATED THAT THE IMPUGNED ORDER IS EX - PARTE BUT ON THE LACK OF OPPORTUNITY BEFORE THE AO THERE IS NO MATERIAL ON RECORD . IT WAS HER STAND THAT THE ASSESSEE CAN ARGUE THE SAID GROUND BEFORE THE LD CIT(A) AND SHE WOULD OBJECT TO REMAND TO THE AO . 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD. ON A CONSIDERATION THEREOF I AM OF THE VIEW AND IN THESE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE WHERE ADMITTEDLY FOR REASONS BEYOND THE CONTROL OF THE ASSESSEE IT REMAINED REPRESENTED RESULTING IN PASSING OF THE EX - PARTE ORDER. ACCORDINGLY, IT WOULD BE APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTO RE THE ISSUE BACK TO THE FILE OF THE LD CIT(A). PERMISSION TO FILE FRESH EVIDENCES IN SUPPORT OF ITS CLAIM IS GRANTED TO THE ASSESSEE AS LACK OF OPPORTUNITY BEFORE THE AO IS PLEADED. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT ABUSED BY THE ASSESSE E AND IS UTILIZED GAINFULLY BY MAKING FULL AND PROPER COMPLIANCE BEFORE LD CIT(A) . THE LD CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. FRESH EVIDENCE IF FILED BY THE A SSESSEE SHALL BE TAKEN INTO CONSIDERATION AFTER OBTAINING A REMAND REPORT ETC THERE ON ITS CREDIBILITY . THE SAID ORDER WAS PRONOUNCED IN THE PRESENCE OF THE BOTH THE PARTIES IN THE OPEN COURT. PAGE 3 OF 4 6 . IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 2 T H AUGUST , 2015 . - S D / - ( DIVA SINGH ) JUDICIAL MEMBER DATED: 1 2 T H AUGUST, 2015 AKK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR PAGE 4 OF 4