Harendra Singh Dhillon, Uttrakhand V. ITO- 1, Uttrakhand

ITA 992/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61639 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 30-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 28-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MEEL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.992 TO 994/DEL/2012 ASSESSMENT YEARS : 2005-06, 2006-07 & 2007-08 HARENDRA SINGH DHILLON, NAAGAON, BAZPUR, UDHAM SINGH NAGAR, UTTARAKHAND. PAN : BCPPS2383N VS. ITO-1, AYAKAR BHAWAN, STATION ROAD, KASHIPUR, UDHAM SINGH NAGAR, UTTARAKHAND. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. SAMPATH, ADVOCATE REVENUE BY : SHRI PRADEEP KUMAR MEEL, SR.DR ORDER PER BENCH: THESE ARE APPEALS FILED BY THE ASSESSEE. THEY ARE DIREC TED AGAINST THE THREE SEPARATE ORDERS PASSED BY THE CIT (A ) DATED 16 TH DECEMBER, 2011 FOR ASSESSMENT YEARS 2005-06, 2006-07 & 2007-08. THE ISSUE INVOLVED IN THE PRESENT APPEALS ARE IDENTICAL . THE GROUNDS OF APPEAL ARE ALSO IDENTICAL EXCEPT DIFFERENCE IN FIGUR ES AND THEY READ AS UNDER:- ASSESSMENT YEAR 2005-06 I. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ERRED IN CONFIRMING THE ADDITION AS UNDISCLOSED INCOME OF ` 5,68,800.00. II. THE APPELLANT RESPECTFULLY SUBMITS AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS ( CIT-A) HAS WITHOUT GOING INTO THE FACTS AND NOT RELYING ON THE ITA NOS.992 TO 994/DEL/2012 2 PRACTICALLY OF THE CASE HAS SUSTAINED ADDITION OF RS.5 ,68,800.00 AS UNDISCLOSED INCOME. 2. THE LD. CIT-A HAS SUSTAINED THE DISALLOWANCE WITHOU T ANY REASON OR MATERIAL FOR SUSTAINING THE ADDITION. 3. THE LD. CIT-A HAS SUSTAINED THE DISALLOWANCE AFTER GOING THROUGH THE FACTS OF THE CASE. 4. THAT THE ORDER IS BAD IN LAW, NOT IN AGREEMENT WITH F ACTS AND IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. III. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, AND/OR TO MODIFY ANY GROUNDS OF APPEAL, IF NECESSARY. 1.1 FOR OTHER YEARS THE FIGURES ARE AS UNDER: ASSESSMENT YEAR 2006-07 ` 68,50,000/- ASSESSMENT YEAR 2007-08 ` 69,60,000/- 2. IN ALL THESE APPEALS THE ASSESSMENT ORDER HAS BEEN PASSED UNDER THE PROVISIONS OF SECTION 144 OF THE ACT ON ACCOUNT O F FAILURE OF THE ASSESSEE TO APPEAR BEFORE THE AO ON VARIOUS DATES. WHAT IS ADDED TO THE INCOME OF THE ASSESSEE IS THE DEPOSITS IN BANK ACCOUNT OF UDHAM SINGH NAGAR DISTT. CO-OPERATIVE BANK, BAZPUR. ALL T HE DEPOSITS IN THE BANK ACCOUNT HAVE BEEN TREATED AS UNEXPLAINED EXCEPT THE AGRICULTURAL INCOME ADMITTED BY THE ASSESSEE. THEREFORE, AFTER REDU CING THE AGRICULTURAL INCOME FORM THE DEPOSITS IN AFOREMENTION ED BANK ACCOUNT, THE BALANCE AMOUNT HAS BEEN CONSIDERED TO BE INCOME F ROM OTHER SOURCES. AN APPEAL WAS FILED BY THE ASSESSEE BEFORE THE C IT (A) IN RESPECT OF AFOREMENTIONED THREE YEARS. SEVERAL DOCUM ENTS WERE SUBMITTED CLAIMING THAT THOSE WERE ADDITIONAL EVIDENC ES AND REQUIRES TO BE ADMITTED. THOSE ADDITIONAL EVIDENCES WERE FORW ARDED BY THE CIT (A) TO AO WHO HAS ALSO SENT THE REMAND REPORT WHICH RE MAND REPORT IS REPRODUCED IN THE ORDER OF CIT (A) AND, AFTER CONSID ERING ALL THESE THINGS, LD. CIT (A) HAS SUSTAINED THE ADDITIONS MADE BY THE AO. ITA NOS.992 TO 994/DEL/2012 3 3. AFTER NARRATING THE FACTS, IT WAS SUBMITTED BY THE LD. COUNSEL OF THE ASSESSEE THAT THOUGH THE ADDITIONAL EVIDENCES WERE F ORWARDED TO THE AO, BUT, THE ASSESSEE COULD NOT APPEAR BEFORE THE A O AS THE AO ISSUED NOTICE DATED 14 TH JUNE, 2011 FIXING THE DATE OF COMPLIANCE ON 20 TH JUNE, 2011 AND THE SAME WAS SERVED ON 24 TH JUNE, 2011. THE ASSESSEE PRAYED BEFORE THE LEARNED ASSESSING OFFICER FOR AN OTHER OPPORTUNITY VIDE APPLICATION DATED 25 TH JUNE, 2011 (SATURDAY). HOWEVER, THE REPORT WAS SUBMITTED BY THE ASSESSING OFFICE R ON 27 TH JUNE, 2011, THEREFORE, THE ASSESSEE COULD NOT MAKE SUBMI SSIONS BEFORE THE LD. ASSESSING OFFICER. IT WAS SUBMITTED THAT THE ASSES SING OFFICER WAS WRONG IN UPHOLDING THE EARLIER ADDITION AS THE ASSE SSEE IS ENJOYING AGRICULTURAL INCOME FROM ABOVE 180 ACRES OF AGRICULT URAL LAND. THE MAIN CROP BEING SOWN ARE WHEAT, LAHI, DHAN, SARSON AN D SUGARCANE AND EVERY ACRE YIELD THE CROP OF APPROXIMATELY ` 70,000/- PER ANNUM AND IF THE SHARE OF THE ASSESSEE IS WORKED OUT AT ABOUT 50% OF THE PROCEEDS OF SALE, THEN, THE DEPOSITS IN BANK ACCOUNT ARE SUITABL Y EXPLAINED. HOWEVER, CIT (A) HAS CONFIRMED THE ADDITION ON THE B ASIS OF REMAND REPORT RECEIVED BY HIM FROM THE ASSESSING OFFICER. 4. IT WAS SUBMITTED BY LD. AR THAT THIS FACT IS RECORDE D IN PARA 3.1 OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A). HE SUBMITTED THAT IT WILL BE IN THE INTEREST OF JUSTICE IF THE MATTER IS RE STORED TO THE FILE OF CIT (A) WITH A DIRECTION TO GIVE THE OPPORTUNITY TO THE ASSESSEE TO APPEAR BEFORE THE ASSESSING OFFICER AND SUBMIT ITS CASE AN D AFTER SUCH HEARING IS GIVEN TO THE ASSESSEE BY THE ASSESSING OFFICER, T HEN, RESUBMIT THE REMAND REPORT. 5. ON THE OTHER HAND, LD. DR VEHEMENTLY OPPOSED THIS REQUEST OF THE ASSESSEE AND SUBMITTED THAT SUFFICIENT OPPORTUNITY HA S ALREADY BEEN GIVEN TO THE ASSESSEE, THEREFORE, NO FURTHER OPPOR TUNITY IS REQUIRED TO BE GIVEN. ITA NOS.992 TO 994/DEL/2012 4 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. IT WILL BE RELEVANT TO REPRODUCE THE SUBMISSIONS OF THE ASSESSEE BEFORE THE CIT (A) AFTER THE AS SESSEE WAS CONFRONTED WITH THE REPORT OF THE ASSESSING OFFICER WH ICH IS AS UNDER:- 3 .1 THE LD. AR HAS AVERRED AS UNDER: KINDLY REFER THE ABOVE APPEAL FILED BEFORE YOUR HO NOUR. THE APPELLANT IS VERY GRATEFUL AS YOUR HONOUR HAS SO GRACEFULLY GIVEN ANOTHER OPPORTUNITY OF BEING HEARD. THE APPLICA NT IS IN RECEIPT OF A COPY OF THE REPORT OF THE LD. ASSESSING OF FICER (A.O.) ALONG WITH THE NOTICE FOR HEARING ISSUED BY YOUR HONO UR. THE LD. A.O. HAS STATED IN THE REPORT THAT NOTICE WAS ISSUED BUT NO NE ATTENDED, THE REASON BEING THAT THE LD. A.O. ISSUED NOTICE TO THE APPELLANT DATED 14.06.2011, FIXING DATE FOR COMPLIANCE AS 20.06.2011 SERVED ON 24.06.2011. IMMEDIATELY, THE AP PELLANT PRAYED FOR ANOTHER OPPORTUNITY VIDE INSTRUMENT DATED 25.06.2011 (SATURDAY), HOWEVER, THE REPORT WAS SUBMITTE D BY THE LD. A.O. ON 27.06.2011. AS SUCH THE APPELLANT COU LD NOT AGAIN MAKE SUBMISSIONS BEFORE THE LD. A.O. IN CONTINUATION TO THE SUBMISSIONS OF THE APPELLANT MADE EARLIER, THE APPELLANT IS ENJOYING AGRICULTURE INCOME FROM ABOUT 180 ACRES OF AGRICULTURAL LAND. THE MAIN CROPS BE ING SOWN ARE WHEAT, LAHI, DHAN, SARSON AND SUGARCANE. AS AN ACRE OF LAND YIELDS ABOUT 75,000.00 PER ANNUM, AND KEEPING A UNIV ERSALLY ACCEPTED PRINCIPLE OF BATAI IN MIND, THE SHARE OF THE APPELLANT WORKS OUT TO ABOUT 50% OF THE PROCEEDS AND THEREFORE THE AGGREGATE FIGURE PER ANNUM WORKS OUT TO MUCH MORE THAN THAT DEPOSITED BY THE APPELLANT IN HIS BANK ACCOUNT, CONSER VATIVELY. YOUR HONOUR SHALL OBSERVE THAT THE BANK ACCOUNT HAS CL EARING AS WELL AS TRANSFER ENTRIES AND ALL PERTAIN TO SALE PRO CEEDS OF AGRICULTURAL PRODUCE. IT IS ONCE AGAIN BEING SUBMITTE D BEFORE YOUR HONOR THAT THE APPELLANT WAS NOT MAINTAINING BOOK S OF ACCOUNTS, AS THE APPELLANT IS NOT REQUIRED TO DO SO AS S UCH NO INCOME OF THE APPELLANT AS ALLEGED BY THE LD. A.O. IS UNDISCLOSED INCOME. THAT AGRICULTURE INCOME FROM LA ND IN THE NAME OF RELATIVES AND FRIENDS IS AGRICULTURE INCOME IS BEYOND ANY SHADOW OF DOUBT AND THE CONTENTION OF THE APPELLANT FINDS SUPPORT FROM THE CASE OF CIT V. ASSOCIATED METAL CO. [1 989] 177 ITR 428 (ALL). 7. IT MAY BE SEEN FROM THE ABOVE SUBMISSIONS OF THE ASSESSEE THAT THE ASSESSING OFFICER HAD STATED IN HIS REMAND REPORT TH AT NOTICE WAS ISSUED BY HIM TO THE ASSESSEE, BUT, NONE ATTENDED ON BEHA LF OF THE ITA NOS.992 TO 994/DEL/2012 5 ASSESSEE. IT IS ALSO MENTIONED THAT THE SAID NOTICE WAS DA TED 14 TH JUNE, 2011 FOR WHICH THE DATE WAS FIXED ON 20 TH JUNE, 2011. THE SAID NOTICE WAS RECEIVED BY THE ASSESSEE AFTER THE DATE OF HEARING I .E., ON 24 TH JUNE, 2011. THE ASSESSEE ALSO FILED LETTER DATED 25 TH JUNE, 2011 BEING SATURDAY AND NEXT WORKING DAY WILL BE 27 TH JUNE 2011 ONLY ON WHICH IT WAS STATED BY THE ASSESSING OFFICER THAT REPORT HAS ALREAD Y BEEN SENT. THIS CLEARLY SHOWS THAT THERE IS LACK OF OPPORTUNITY G IVEN TO THE ASSESSEE BY THE ASSESSING OFFICER DURING THE COURSE OF REMAN D PROCEEDINGS. THEREFORE, THERE BEING LACK OF OPPORTU NITY, WE ACCEPT THE REQUEST OF THE LD. AR FOR REMITTING ALL THESE APPEALS TO THE FILE OF THE CIT (A) WITH A DIRECTION TO AGAIN CALL A REMAND REP ORT FROM THE ASSESSING OFFICER WITH A DIRECTION TO ASSESSING OFFICER TO GIVE THE ASSESSEE A REASONABLE AND SUFFICIENT OPPORTUNITY OF HEAR ING AND AFTER GIVING EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE THE ASSESSING OFFICER WILL RE-SUBMIT THE REMAND REPORT WHICH WILL BE SUBMITTED TO CIT (A) ON THE BASIS OF WHICH LD. CIT (A) WILL RE-ADJUDIC ATE ALL THESE APPEALS FILED BY THE ASSESSEE AS PER PROVISIONS OF LAW. WE DIRECT ACCORDINGLY. SINCE WE ARE RESTORING THESE APPEALS TO THE FILE OF CI T (A), WE DO NOT EXPRESS ANY OPINION REGARDING THE MERITS OF ADDITIONS WHICH HAVE BEEN UPHELD BY LD. CIT (A) AS THOSE WILL BE RE-CONSIDERED B Y LD. CIT (A) IN PURSUANCE OF OUR ABOVE DIRECTIONS. 8. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE C ONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORE SAID. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.04.20 12. SD/- SD/- [T.S. KAPOOR] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 30.04.2012. ITA NOS.992 TO 994/DEL/2012 6 DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES