Smt. Pushpa Rani Kukreja, New Delhi V. ACIT, New Delhi

ITA 919/DEL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3210 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 23-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Unexplained investment; Principle of natural justice
• Section: 250; 69; 132; 15

Judgement Text

1 I.T.A NO. 919/DEL/2016 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT M EMBER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A NO. 919/DEL/2016 (ASSESSMENT YEAR : 2009-10) SMT. PUSHPA RANI KUKREJA, A-37, EAST OF KAILASH, NEW DELHI 65 (PAN : ACYPR 7962 A) (APPELLANT) VS ACIT, CIRCLE 18, ARA CENTRE, E-2, JHANDEWALAN NEW DELHI. (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 30.11.2015 PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) 25 , NEW DELHI FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE LD. CIT(A) HAS NOT FOLLOWED THE PROCEDURE LAID DOWN IN INSTRUCTION NO. 20/2003, DATED 23.12.2003 THAT CBDT HAS NOTICED THROUGH LETTER DATED 19.06.2015 AND PASSED THE ORDER U/S 250 AFTER 15 DA YS OF LAST HEARING. THIS MUST BE VIEWED ADVERSELY BECAUSE AS PER CBDT INSTRU CTION NO. 20/2003, DATED 23.12.2003 THE APPELLATE ORDER SHOULD BE ISSU ED WITHIN 15 DAYS OF THE LAST HEARING. THE ORDER PASSED BY LD. CIT(A) IS UNL AWFUL, NULL AND VOID. DETAIL OF DATE OF LAST HEARING WITH CIT(A) AND DATE OF PASSING OF ORDER IS AS FOLLOWS : APPELLANT BY SHRI VIKAS BANDGALI, C.A. RESPONDENT BY SHRI BHUVNESH KULSHRESTHA, CIT - D.R. DATE OF HEARING 03.12.2019 DATE OF PRONOUNCEMENT 04.12.2019 2 I.T.A NO. 919/DEL/2016 2. THAT WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT (A ) HAS ERRED IN LAW AND ON FACTS BY PASSING THE ORDER EX PARTE IN RESPONSE OF APPELLATE ORDER WITHOUT ALLOWING PROPER AND ADEQUATE OPPORTUNITY THROUGH TH E APPELLANT APPEARED. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS B Y MAKING ADDITION TO THE INCOME OF THE ASSESSEE BY TAKING INCOME FROM SCHOOL AT RS.8,00,000/- JUSTIFYING THE LD. AO IN ADDITION OF THE SAME ON ES TIMATED BASIS WHICH IS WRONG AND DENIED. HENCE, THE ADDITION MADE TO THE I NCOME NEEDS TO BE DELETED. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS B Y MAKING ADDITION TO THE INCOME OF THE ASSESSEE BY TAKING INCOME FROM RENT A T RS.4,25,000/- JUSTIFYING THE LD. AO IN ADDITION OF THE SAME ON TH E BASIS OF STATEMENT OF SH. O P KUKREJA, HUSBAND OF THE ASSESSEE WHICH IS WRONG AND NOT ON THE BASIS OF FACTS. HENCE, THE ADDITION MADE TO THE INCOME NE EDS TO BE DELETED. 5. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS B Y MAKING ADDITION TO THE INCOME OF THE ASSESSEE BY TAKING INCOME FROM INTERE ST AT RS.3,50,000/- JUSTIFYING THE LD. AO IN ADDITION OF THE SAME ON TH E BASIS OF IMAGINARY GROUND WHICH IS WRONG AND UNJUSTIFIED. HENCE THE AD DITION MADE TO THE INCOME NEEDS TO BE DELETED. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S BY MAKING ADDITION OF THE INCOME OF THE ASSESSEE AT RS. 75,00,000/- AS UNDISC LOSED INVESTMENT IN THE HANDS OF THE ASSEESSEE U/S 69 OF INCOME TAX ACT, 19 61 WITHOUT ANY RELEVANT FACT. HENCE, THE ADDITION MADE TO THE INCOME NEEDS TO BE DELETED. 7. THAT THE ASSESSING OFFICER HAS ERRED ON FACTS AN D IN LAW IN INITIATE PENALTY PROCEEDING U/S 271 (1)(C) OF THE INCOME-TAX ACT, 19 61 WITHOUT CONSIDERING THE FACT AND LAW. 8. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY OR ALTER GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED. DATE OF LAST HEARING DATE ON ENVELOPE OF ORDER PASSED PERIOD 24.11.2015 23.12.2015 1 MONTH 3 I.T.A NO. 919/DEL/2016 3. THE ASSESSEE IS AN INDIVIDUAL AND A SEARCH & SEI ZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 WAS CONDUCTED AT HER PR EMISES ON 10.02.2012, CONSEQUENT TO SEARCH CONDUCTED IN THE AERENS GROUP ON 17.08.2011. THE INCOME WAS DETERMINED IN THE ASSESSMENT ORDER TAKI NG THE INCOME FROM PLAY SCHOOL IN THE NAME OF SHAM ROCK LOTUS AT NEW DELHI AT RS.8,00,000/-, RENT RECEIVED AT RS.4,25,000/-, AND INTEREST INCOME AT R S.3,50,000/-. THE ADDITIONS WERE ALSO MADE TOWARDS UNEXPLAINED INVESTMENTS ON T HE BASIS OF DOCUMENTS FOUND IN THE COURSE OF SEARCH AT THE RESIDENCE OF T HE ASSESSEE, PARTICULARLY A SALE AGREEMENT SEIZED AS ANNEXURE A-1, PAGES 24 TO 35, AS PER WHICH THE ASSESSEE HAD INVESTED RS.75,00,000/- EACH ALONG WIT H HER HUSBAND AND AN ADDITION OF RS.75,00,000/- WAS MADE IN THE HANDS OF THE ASSESSEE. 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. 6. THE LD. AR SUBMITTED THAT IN PREVIOUS ASSESSMENT YE AR AS WELL AS SUBSEQUENT ASSESSMENT YEARS I.E. 2006-07, 2007-08, 2008-09 & 2010-11 AND 2011-12 IN ASSESSEES OWN CASE ON THE SIMILAR FACTS THE TRIBUNAL HAS REMANDED THE MATTER BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE T HE CASE. (ITA NO.916, 917, 918 & 920/DEL/2016 ORDER DATED 21.09.2017 AND ITA N O.1030/DEL/2016 ORDER DATED 10.10.2019). THE LD. AR SUBMITTED THAT THE ASSESSEE WAS NOT ABLE TO CONTEST THE CASE BEFORE THE CIT(A), THEREFORE, I N THE INTEREST OF JUSTICE, THE ASSESSEE BE GIVEN OPPORTUNITY TO PLEAD ITS CASE ON MERIT BEFORE THE CIT(A). 7. THE LD. DR SUBMITTED THAT THE ASSESSING OFFICER AS WELL AS CIT(A) HAS GIVEN AMPLE OPPORTUNITY TO THE ASSESSEE TO SUBMIT T HE RELEVANT DOCUMENTS AS WELL AS MAKE PROPER SUBMISSIONS, BUT THE SAME WAS N OT AVAILED BY THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER WAS JUST IFIED IN MAKING ADDITION AND 4 I.T.A NO. 919/DEL/2016 THE CIT(A) CORRECTLY UPHOLD THE ADDITIONS MADE BY T HE ASSESSING OFFICER. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORD ER OF THE CIT(A). 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RELEVANT MATERIALS AVAILABLE ON RECORD. SINCE IN THE PREVIOUS ASSESSME NT YEARS AS WELL AS IN THE SUBSEQUENT ASSESSMENT YEARS THE CASE OF THE ASSESSE E WAS REMANDED BACK TO THE FILE OF THE CIT(A) TO GRANT THE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HER CASE ON MERIT, THE FACTS IN THE PRESENT ASSESSM ENT YEAR ARE IDENTICAL. THEREFORE, IN THE INTEREST OF JUSTICE IT WILL BE AP PROPRIATE TO REMAND BACK THE MATTER TO THE FILE OF THE CIT(A) WITH A DIRECTION T O GRANT ONE FINAL OPPORTUNITY TO THE RESPECTIVE ASSESSEE TO SUBSTANTIATE HER CLAIM / CASE. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE CIT(A) WITHOUT SEEKING ANY ADJOURNMENT AND SUBSTANTIATE HER CASE FAILING WHICH THE CIT(A) IS AT LIBERTY TO DECIDE THE ISSUE AS PER LAW. NEEDLESS TO SAY THE ASSESSEE BE G IVEN PROPER OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLE OF NATURAL JUSTICE. THEREFORE, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 4 TH DAY OF DECEMBER, 2019 . SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 04/12/2019 PRITI YADAV, SR. PS * 5 I.T.A NO. 919/DEL/2016 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 03 . 12 .2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04 . 12 .2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 0 4 . 1 2 . 2 0 1 9 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 0 4 . 1 2 . 2 0 1 9 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 0 4 . 1 2 . 2 0 1 9 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 0 4 . 1 2 . 2 0 1 9 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 0 4 . 1 2 . 2 0 1 9 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 0 4 . 1 2 . 2 0 1 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK