M/s Durga Engineereing & Commercial Ltd, New Delhi V. ITO, New Delhi

ITA 997/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2228 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-12-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 18-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B: NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA, VICE PRESIDENT & SHRI C.L. SETHI, JUDICIAL MEMBER ITA NO. 997/DEL/2009 ASSESSMENT YEAR : 2003-04 M/S. DURGA ENGINEERING & COMMERCIAL LTD. 42, TILAK KHAND, GIRI NAGAR KALKAJI, NEW DELHI. VS. I.T.O. WARD 10(4), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VED JAIN & MS. RANO JAIN, C.A. RESPONDENT BY : SHRI MANISH GUPTA, D.R. O R D E R PER: C.L. SETHI, J.M. THE ONLY ISSUE RAISED BY THE ASSESSEE AT THE TIME OF HEARING OF THIS APPEAL IS AGAINST THE ADDITION OF RS. 2,30,000/- AS INCOME FR OM UNDISCLOSED SOURCES CONFIRMED BY THE LD. CIT(A) PERTAINING TO THE ASSES SMENT YEAR 2003-04. 2. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSE E HAD RECEIVED SHARE CAPITAL MONEY AMOUNTING TO RS. 1,30,000/- AND RS. 1 ,00,000/- AGGREGATING TO RS. 2,30,000/- FROM TWO PERSONS, NAMELY, SHRI NARENDER KUMAR AND SHRI JAGDISH PRASAD RESPECTIVELY. THE A.O. HAS TREATED THE SHAR E CAPITAL MONEY TO BE THE UNDISCLOSED MONEY OF THE ASSESSEE FOR FAILURE ON TH E PART OF THE ASSESSEE TO PRODUCE THE SHARE CREDITORS AND FAILURE TO FILE ANY CONFIRMATION OF THE PERSON ITA NO. 997/DEL/2009 2 CONCERNED ALONGWITH THEIR BANK STATEMENT. THE A.O. FURTHER STATED THAT THE AFORESAID PERSONS WERE NOT FOUND AVAILABLE BY THE I NSPECTOR AT THE ADDRESSES GIVEN BY THE ASSESSEE. THE A.O., THEREFORE, STATED THAT IT IS NOT THE DUTY OF THE A.O. TO RUN FROM PILLAR TO POST AND COLLECT THE EVI DENCE FAVOURABLE TO THE ASSESSEE, AND IT WAS THE BURDEN OF THE ASSESSEE TO PROVE THE CREDITWORTHINESS, GENUINENESS AND EXISTENCE OF THE PERSONS. 3. ON AN APPEAL, THE LD. CIT(A) HAS ALSO CONFIRMED THE A.O.S ACTION AS ASSESSEE HAS FAILED TO FURNISH ADEQUATE EVIDENCE FO R DISCHARGING ITS INITIAL ONUS. 4. AFTER CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THIS MATTER NEED S FURTHER VERIFICATION AND ENQUIRY TO COLLECT INFORMATION ABOUT THE GENUINENES S OF THE SHARE CAPITAL TRANSACTION AND ABOUT THE EXISTENCE OF THE SHARE AP PLICANT. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IF ASSESSEE GIVES AN OP PORTUNITY TO DISCHARGE ITS ONUS, THE ASSESSEE SHALL BE ABLE TO FURNISH ADEQUATE EVID ENCE BEFORE THE A.O. TO DISCHARGE ITS BURDEN. WE, THEREFORE, RESTORE THE MA TTER BACK TO THE FILE OF THE A.O. FOR HIS FRESH ADJUDICATION AFTER PROVIDING REASONAB LE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. ITA NO. 997/DEL/2009 3 6. THIS DECISION IS PRONOUNCED IN THE OPEN COURT IM MEDIATELY AFTER THE HEARING WAS OVER ON 15TH DECEMBER, 2009. (G.E. VEERABHADRAPPA) ACCOUNTANT MEMBER (C.L. SETHI) JUDICIAL MEMBER DATED: 15 TH DECEMBER, 2009. MAMTA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR