Atul Katra, New Delhi V. DCIT CC-11, New Delhi

MA 236/DEL/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6397 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 26-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Assessee Lawyers: ASHWANI TANEJA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) (DELHI BENCH G : NEW DELHI) (DELHI BENCH G : NEW DELHI) (DELHI BENCH G : NEW DELHI) BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRESIDE NT AND SHRI A.D. BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRESIDE NT AND SHRI A.D. BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRESIDE NT AND SHRI A.D. BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRESIDE NT AND SHRI A.D. JAIN , JUDICIAL MEMBER JAIN , JUDICIAL MEMBER JAIN , JUDICIAL MEMBER JAIN , JUDICIAL MEMBER M.A. NO.236/DEL./2010 (IN ITA NO.2977/DEL./2008) (ASSESSMENT YEAR : 2004-05) SHRI ATUL KALRA, `VS. DCIT, CEN. CIRCLE II, F-1172, CHITRANJAN PARK, NEW DELHI. NEW DELHI. (PAN/GIR NO.AJCPK6473G) (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI TANEJA, A.R. REVENUE BY : SMT. MONA MOHANTY, SR.DR ORDER PER A.D. JAIN, JM VIDE OUR DATED 27.11.2009, THE APPEAL FILED BY THE ASSESSEE IN I.T.A. NO.2977/DEL./08 FOR ASSESSMENT YEAR 2004-05 WAS PAR TLY ALLOWED. GROUND NO.4, CHALLENGING THE ACTION OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS.1,71,097 ON ACCOUNT OF ALLEGED EXPENDITURE ON THE MARRIAGE OF T HE ASSESSEE, WAS REJECTED WITH THE FOLLOWING OBSERVATIONS: HAVING HEARD THE PARTIES AND HAVING PERUSED THE MA TERIAL ON RECORD WITH REGARD TO THIS ISSUE, WE DO NOT FIND OURSELVES PERSUADED T O AGREE WITH THE GRIEVANCE RAISED BY THE ASSESSEE BY WAY OF GROUND NO.4. UNDI SPUTEDLY, THE DIARY UNDER CONSIDERATION WAS SEIZED FROM THE RESIDENCE OF THE ASSESSEE. NOW, AS PER THE PROVISIONS OF SECTION 292C(1) OF THE I.T. ACT, THIS BEING THE SITUATION, THE PRESUMPTION IS THAT THE DIARY BELONGS TO THE ASSESS EE AND THAT THE CONTENTS OF THE DIARY ARE TRUE. THE ISSUE HAS REMAINED UNABLE TO C ONTROVERT THIS PRESUMPTION. THE AFFIDAVIT FILED BY THE FATHER OF THE ASSESSEE (COPY AT APB 123) IS AN UNATTESTED AFFIDAVIT CARRYING NO WEIGHT WHATSOEVER, WHICH FACT HAS RIGHTLY BEEN TAKEN INTO CONSIDERATION BY THE CIT(A). IN THESE FACTS, THE A O WAS CORRECT IN ADDING THE DIFFERENCE BETWEEN THE CASH AVAILABLE AND THE EXPEN DITURE. DUE WEIGHTAGE WAS GIVEN TO THE EXPENSES EXPLAINED BEFORE THE AO. THE AMOUNT WITHDRAWN BY SHRI I.C. KALRA, THE FATHER OF THE ASSESSEE FROM HIS OWN BANK ACCOUNT, WAS NOT ADDED. 10. IN VIEW OF THE ABOVE, FINDING NO FORCE THEREIN , GROUND NO.4 IS REJECTED.' 2 2. IN THE PRESENT APPLICATION, THE ASSESSEE HAS CO NTENDED THAT WHILE DECIDING GROUND NO.4 TAKEN BY THE ASSESSEE, THE TRIBUNAL DID NOT AP PRECIATE THAT NO FINDING HAD BEEN RECORDED BY THE CIT(A) REGARDING THE CONFIRMATION O F THE ASSESSEES FATHER (COPY AT PAGE 85 OF THE ASSESSEES PAPER BOOK FILED BEFORE THE TR IBUNAL) AND THAT THE TRIBUNAL HAS ALSO NOT RECORDED ANY FINDING THEREON; THAT IN THIS CONF IRMATION, THE FATHER OF THE ASSESSEE HAD ADMITTED THAT THE DIARY BELONGED TO HIM (THE ASSESS EES FATHER) AND THE JOTTINGS AND ENTRIES IN THE SAID DIARY ALSO BELONGED TO HIM; THAT THE DI ARY WAS IN THE HAND WRITING OF THE FATHER OF THE ASSESSEE AND THAT THE MARRIAGE EXPENSES OF M S. SHWETA KALRA WERE BORNE BY THE FATHER OF THE ASSESSEE; THAT THE SAID CONFIRMATION WAS ALSO FILED BEFORE THE HONBLE HIGH COURT; THAT VIDE ORDER DATED 9.4.2010, THE HONBLE HIGH COURT HAS GIVEN LIBERTY TO THE ASSESSEE TO APPROACH THE TRIBUNAL BY WAY OF A PETIT ION U/S 154(2) OF THE I.T. ACT. 3. THE CONTENTION OF THE ASSESSEE IS FOUND TO BE CO RRECT. THE CONFIRMATION (SUPRA) OF THE FATHER OF THE ASSESSEE HAS INDEED INADVERTENTLY REMAINED TO BE CONSIDERED BY US WHILE PASSING OUR ABOVESAID ORDER DATED 27.11.2009, EVEN THOUGH A COPY THEREOF WAS FILED BEFORE US, AT PAGE 85 OF THE ASSESSEES PAPER BOOK. 4. THERE HAS, THEREFORE, CREPT IN AN INADVERTENT MI STAKE APPARENT FORM RECORD IN OUR ORDER DATED 27.11.09. REJECTING GROUND NO.4 RAISE D BY THE ASSESSEE WITHOUT CONSIDERING THE AFORESAID CONFIRMATION OF THE ASSESSEES FATHER HAS VISITED THE ASSESSEE WITH PREJUDICE INASMUCH AS DUE TO THE AFORESAID INADVERTENT MISTAK E APPARENT FROM RECORD, MATERIAL EVIDENCE BROUGHT ON RECORD BY THE ASSESSEE HAS REMA INED FROM BEING CONSIDERED. 5. IN VIEW OF THE ABOVE, OUR ORDER DATED 27.11.09 I S HEREBY RECALLED. THE MATTER IS ORDERED TO BE REFIXED FOR FRESH HEARING UNDER NOTIC E TO BOTH THE PARTIES, QUA THE ABOVE ASPECT OF GROUND NO.4, RAISED BY THE ASSESSEE IN IT S APPEAL. 3. IN THE RESULT, THE APPLICATION FILED BY THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 08.04.2011. SD/- SD/- (G.E. VEERABHADRAPPA) (A.D.JAIN) VICE PRESIDENT JUDICIAL MEMBER DELHI, DATED : APRIL 08,2011 SKB 3 COPY FORWARDED TO: 1.APPLICANT 2.RESPONDENT 3.CIT, 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT