Kanta Choudhary, New Delhi V. ITO WARD - 61(2), New Delhi

ITA 9858/DEL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2937 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 29-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC’ NEW DLEHI BEFORE SHRI C.M. GARG, JUDICIAL MEMBER ITA No. 9858/Del/2019 Assessment Year: 2016-17 Kanta Choudhary, 150B, vs. Income-tax Officer, 2 nd Floor, Kilokari, New Delhi. Ward 61(2), New Delhi. PAN : AFEPC2154C (Appellant) (Respondent) Appellant by : None Respondent by: Sh. Om Prakash, Sr. DR Date of hearing: 02.05.2022 Date of order : 05.05.2022 ORDER This appeal filed by the assessee is directed against the order dated 31.10.2019 passed by ld. CIT(A)-20, New Delhi for the assessment year 2016-17 on the following grounds : “1. That the order of the Ld. CIT (A) - 20, New Delhi dated 31.10.2019 is bad in law and on facts. 2. That the Ld. CIT (A) has erred in law as well as on facts in sustaining the ad-hoc addition made by the ld. AO amounting to Rs. 9,04,355/- mere on the grounds that the assessee should have earned 20% profit based on market trend and records. 3. That the Id. AO as well as Id. CIT (A) have accepted the audited accounts and they never rejected the 2 financials submitted by the assessee but still they made ad-hoc addition. 3.1. That the Id. CIT (A) has failed to appreciate that there was not even a shred of material/evidence with the Id. AO against the assessee to prove that that why such adhoc addition should be made. 4. That the Id. CIT(A) has erred in initiating penalty proceedings against assessee & levying interest u/s 234B & 234C for immaterial adhoc addition. 5. The Appellant craves leave to alter, amend or any other grounds of appeal either before or during the course of hearing.” 2. A notice through speed post acknowledgement due was sent to the appellant on 07.02.2022, which has been returned un-served with a remark ‘left the address’. Notice has been issued to the appellant/assessee on the address 150B, 2 nd Floor, Kilokari, New Delhi, Delhi 110016 and the same address has been mentioned in the assessment order as well as Form 36 by the assessee in the column of ‘complete address for sending notices’. As per judgment of Hon’ble Supreme Court in the case of PCIT vs. M/s. I Ven Interactive Ltd. dated 18.10.2019 in Civil Appeal No. 8132 of 2019, in absence of any specific information to the Assessing Officer with respect to change of address and/or change of the name of assessee, Assessing Officer would be justified in sending the notices at the available address mentioned in the PAN database of the 3 assessee. Respectfully following the same, we hold that when the assessee has filed return mentioning a particular address as per his PAN database, which has also been noted by the Assessing Officer as well as by the assessee himself in Form No. 36 as complete address for sending the notices and the assessee is not found available on the same address and no information about change of address to the Assessing Officer by the assessee, then we safely presume that all possible efforts have been made regarding service of notice on the assessee on the address given in PAN data and by assessee and assessee is not available, then we have no alternate but to proceed ex parte qua assessee to decide this appeal after hearing the submissions of ld. Sr. Departmental Representative (DR). 3. From the assessment order, I observe that the Assessing Officer has made addition by observing that the profit declared by the assessee was quite low in comparison to the profits generally declared in the profession in which the assessee is engaged. This observation and finding of the Assessing Officer at page 3 top para of the assessment order, are baseless and perverse, as in the assessment order nowhere the Assessing Officer has noted the nature of profession or business undertaken by the assessee, then how the Assessing Officer alleged that the assessee has under- declared the profits made from profession. The assessee undisputedly has declared profit @ 9.7% of gross receipts and the 4 Assessing Officer alleged that the profit should be @ 20% of turnover and thereafter, he made addition, which is not sustainable without bringing on record any such fact or material establishing that the assessee has under-declared the profits. Therefore, the addition made by the Assessing Officer has no legs to stand and the Assessing Officer is directed to delete the same. 4. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 05.05.2022. Sd/- (C.M. GARG) JUDICIAL MEMBER Dated: 05/05/2022 ‘aks’