Mrs. Alka Sharma, New Delhi V. DCIT, New Delhi

ITSSA 103/DEL/2008

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8421 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 19-04-2011
• Assessment Year: misc
• Appeal Filed On: 11-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H L DIHANA
• Assessee Lawyers: PUNEET THUKRAL
• Keywords: Gift; Search and seizure; Opportunity of being heard; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER IT (SS) A NO.102/DEL/2008 BLOCK ASSESSMENT PERIOD : 01.04.96 TO 31.01.2003 MRS. MAMTA SHARMA, 1073/A-3, WARD 1, MEHRAULI, NEW DELHI. PAN : BKJPS6530H VS. DCIT, CIRCLE 24 (1), NEW DELHI. IT (SS) A NO.103/DEL/2008 BLOCK ASSESSMENT PERIOD : 01.04.96 TO 31.01.2003 MRS. ALKA SHARMA, 1073/A-3, WARD 1, MEHRAULI, NEW DELHI. PAN : BKJPS6529N DCIT, CIRCLE 24 (1), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PUNEET THUKRAL, CA REVENUE BY : SHRI H.L. DIHANA, CIT, DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER BOTH THESE APPEALS ARE FILED BY THE ASSESSEE. THEY ARE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY THE CIT (A) DATED 8 TH SEPTEMBER, 2008 IN RESPECT OF BOTH THE ASSESSEES AGAINST A SSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER U/S 158BD/144 OF THE IT ACT, 1961 FOR BLOCK PERIOD ENDING ON 31 ST JANUARY, 2003. GROUNDS OF APPEAL OF BOTH THE ASSESSEES ARE IDENTICAL AND READ AS UNDER:- ITA NOS.102 & 103/DEL/2008 2 1. THE IMPUGNED APPELLATE ORDER PASSED BY LEARNED C IT (APPEALS)-XXIII IS BAD IN LAW. 2. THE LEARNED CIT (APPEALS) IS ERRED IN TREATING GI FTED MONEY AS ASSESSEES UNDISCLOSED INCOME. 3. THE LD. CIT (APPEALS) IS NOT JUSTIFIED IN NOT FOLL OWING THE RATIO OF THE JUDGEMENT OF HONOURABLE MADRAS HIGH COURT IN THE CASE OF CIT VS. RITU DEVI (2004) 271 ITR 466 (MAD RAS) FOR NOT GIVING THE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHILE PASSING THE ORDER EX PARTE. 4. THE RATIO OF JUDGEMENTS OF THE CASES. (I) SANDEEP KUMAR (HUF) VS. CIT (2007) 293 ITR 294, 299 (DELHI). (II) CIT VS. R.S. SIBBAL (2004) 269 ITR 429 (DELHI) . (III) SAJJAN DASS AND SONS VS. CIT (2003) 264 ITR 4 35 (DELHI) IS NOT JUSTIFIED IN OUR CASE. THE ASSESSEE RESERVES THE RIGHT TO ADD OR ALTER ANY OTHE R GROUND OF APPEAL AT THE TIME OF HEARING. 2. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 3 1 ST JANUARY, 2003 IN THE CASE OF SHRI JATINDER SINGH SHARMA, SMT. MANJU SHARMA AND M/S KAMDHENU RESTAURANT. DURING THE COURSE OF SEAR CH, CERTAIN DOCUMENTS IDENTIFIED AS 9-13, 17-21, 22-24 OF ANNEXUR E-2 WERE SEIZED. THESE DOCUMENTS RELATED TO ACQUISITION OF PROPERTY IDE NTIFIED AS 1061/5, WARD NO.7, MEHRAULI, NEW DELHI BY BOTH THE ASSESSEES. THE TRANSACTION PERTAINED TO ASSESSMENT YEAR 2003-04. SPECI FICALLY, THE PAGE NO.24 OF ANNEXURE-2 WAS STAMPED RECEIPT BY THE V ENDOR GRAPHICALLY DESCRIBING THE REAL CONSIDERATION OF THE PROPERTY TRANSACTION WHICH INDICATED THAT ACTUAL TRANSACTION W AS FOR A SUM OF ` 10 LAC. AS AGAINST THAT SALE DEED INDICATED THE CONSI DERATION AT ` 50,000/- ONLY. ACCORDINGLY, NOTICE U/S 158BD WAS ISSUE D TO BOTH THE ASSESSEES AND IN RESPONSE THERETO THE RETURNS WERE FILED ON 10 TH JANUARY, 2005 WHEREIN UNDISCLOSED INCOME WAS RETURNED AT NIL. ITA NOS.102 & 103/DEL/2008 3 3. ACCORDING TO THE NOTE APPENDED TO THE BLOCK RETU RN, IT WAS SUBMITTED THAT A SUM OF ` 7,51,532/- WAS GIVEN TO THEM BY THE PATERNAL UNCLE AND MATERNAL UNCLE WHO HAVE NATURAL LOVE AND AFFECTION AS THEY WERE WELL OFF AND VARIOUS GIFTS WERE RECEIVED BY THEM ON THE OCCASION OF THEIR MARRIAGE, BUT PROMISED TO GIVE THEM GIFT AT THE TIME OF PURCHASE OF THE PROPERTY AND THE SAID PROPERTY WAS PUR CHASED OUT OF THE GIFTS RECEIVED FROM THEM ON VARIOUS OCCASIONS. THE DETAILS OF GIFTS ARE TABULATED IN THE ORDER OF THE CIT (A) AT PAGE 2 AND 3. IN THIS MANNER, THE GIFTS WERE EXPLAINED IN THE RETURN OF IN COME. HOWEVER, IN RESPONSE TO VARIOUS NOTICES ISSUED BY THE ASSESSING OFFICER, THE ASSESSEE DID NOT SUBMIT PROPER DETAILS AND THE ASSESSMENT ORD ER CAME TO BE PASSED U/S 158 BD/144 OF THE IT ACT, 1961. IT I S MENTIONED IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAD FILED A PETITION SEEK ING ADJOURNMENT ON THE GROUND THAT COUNSEL WAS OUT OF STAT ION AND ADJOURNMENT WAS ACCORDINGLY GRANTED FOR 10 TH JANUARY, 2007. AGAIN, NOTICE WAS ISSUED ON 23 RD JANUARY, 2007 FOR 25 TH JANUARY, 2007 BY SPEED POST, BUT, ON THAT DATE, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THEN THE ASSESSING OFFICER HAS PROCEEDED TO FRAME EX PAR TE ASSESSMENT BY ADDING THE UNEXPLAINED AMOUNT TO THE RETU RNED INCOME BEING UNDISCLOSED INCOME OF THE ASSESSEE. 4. AT THE TIME OF HEARING, AT THE OUTSET, IT WAS THE CASE OF LEARNED AR THAT THE ASSESSING OFFICER DID NOT GIVE PROPER OPPOR TUNITY TO THE ASSESSEE TO PLACE EVIDENCE ON RECORD TO SHOW THE GENUINE NESS OF THE GIFTS WHICH HAVE BEEN ASSESSED AS UNDISCLOSED INCOME OF THE ASSESSEE. HE SUBMITTED THAT INITIATION OF ASSESSMENT PROCEEDINGS WA S DONE IN THE MONTH OF JANUARY ONLY AND THE NOTICE STATED TO B E ISSUED ON 23 RD JANUARY, 2007 WAS FOR 25 TH JANUARY, 2007 WHICH WAS RECEIVED ONE DAY BEFORE THE DATE OF HEARING. IN THIS MANNER, HE SUBMI TTED THAT THE ASSESSING OFFICER HAS NOT GIVEN PROPER OPPORTUNITY TO TH E ASSESSEE TO PLACE EVIDENCE ON RECORD. HE SUBMITTED THAT THESE SUB MISSIONS WERE ITA NOS.102 & 103/DEL/2008 4 TAKEN BEFORE THE CIT (A) ALSO AND IT WAS SUBMITTED THA T THE ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER ON 25 TH JANUARY, 2007 AS THE OFFICE WAS CLOSED FOR REPUBLIC DAY CELEBRATIONS. THIS CONTENTION OF THE ASSESSEE HAS BEEN REJECTED BY THE CIT (A) ON THE GRO UND THAT THE ASSESSEE IN CASE COULD NOT APPEAR ON 25 TH JANUARY, 2007, SHOULD HAVE APPEARED BEFORE THE ASSESSING OFFICER AFTER THAT DATE A S THE IMPUGNED ORDER WAS PASSED ON 31 ST JANUARY, 2007. HE SUBMITTED THAT IT WILL BE IN THE INTEREST OF JUSTICE IF THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO ENABLE THE ASSESSEE TO GET REASONABLE O PPORTUNITY OF HEARING AND TO REPRESENT HER CASE. 5. ON THE OTHER HAND, LEARNED DR OBJECTED TO SUCH RE QUEST OF THE ASSESSEE ON THE GROUND THAT ENOUGH OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO REPRESENT THE CASE, BUT AS THE ASSESSEE HAS FAILED TO AVAIL SUCH OPPORTUNITY, LEARNED CIT (A) HAS RIGHTLY REJECTE D SUCH GROUND OF THE ASSESSEE. 6. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. WE FI ND THAT THERE IS LACK OF OPPORTUNITY PROVIDED TO THE ASSESSEE TO EXPLA IN THEIR CASE. THERE IS A FORCE IN THE CONTENTION OF THE ASSESSEE THAT NOTICE OF HEARING DATED 23 RD JANUARY, 2007 FIXING THE DATE OF HEARING ON 25 TH JANUARY, 2007 WAS A SHORT TIME GIVEN TO THE ASSESSEE. MOREOVER, ON THE NEXT DATE THERE WAS REPUBLIC DAY CELEBRATIONS. CONSIDERING ALL THESE FACTS, WE ARE OF THE OPINION THAT IT IS A CASE OF LACK OF OP PORTUNITY GIVEN TO THE ASSESSEE AND SUCH GROUND OF THE ASSESSEE IS REQUIRED TO B E ACCEPTED. ACCORDINGLY WE HOLD THAT THE ASSESSEE DESERVE S A REASONABLE OPPORTUNITY OF HEARING BEFORE THE ASSESSING O FFICER. THEREFORE, WE CONSIDER IT JUST AND PROPER TO RESTORE B OTH THESE APPEALS TO THE ASSESSING OFFICER FOR PROVIDING THE ASSESSEE A REASON ABLE OPPORTUNITY OF HEARING. THE ASSESSING OFFICER WILL PRO VIDE THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING AND AFTER GIVING SUCH OPPORTUNITY ITA NOS.102 & 103/DEL/2008 5 OF PLACING ALL THE EVIDENCES ON RECORD, THE ASSESSING OF FICER WILL REFRAME THE ASSESSMENT AS PER PROVISIONS OF LAW. WE DIREC T ACCORDINGLY. 7. AS WE ARE RESTORING THESE APPEALS TO THE FILE OF ASSESSI NG OFFICER FOR RE-FRAMING THE ASSESSMENTS AS DIRECTED ABOVE, WE DO N OT EXPRESS ANY OPINION ON THE MERITS OF THE ADDITIONS WHICH HAVE ALSO BEEN AGITATED BY THE ASSESSEE IN THE PRESENT APPEAL AS THEY WI LL BE FRESHLY DECIDED BY THE ASSESSING OFFICER. 8. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEES ARE A LLOWED IN THE MANNER AFORESAID FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 19.04.20 11. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 19.04.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES