Sh. Faiz Murtaza Ali, New Delhi V. ACIT, New Delhi

MA 502/DEL/2009

• Counselvise Citation: [2011] 111 COUNSELVISE.COM (IT) 0410 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 16-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KISHORE
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Onus to prove
• Section: 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.G. BANSAL M.A. NO. 502(DEL)/2009 (ARISING OUT OF ITA NO. 2117(DEL)/2007) ASSESSMENT YEAR: 2002-03 FAIZ MURTAZA ALI, ASSISTANT COMMISSIONER OF 122, UDAY PARK, NEW DELHI. VS. INCOME-T AX, CIRCLE 47(1), NEW DELHI. (APPLICANT) (RESPONDENT) APPLICANT BY : DR. RAKESH GUPTA, ADVOCATE RESPONDENT BY: SHRI B. KISHORE, SR. DR ORDER PER K.G. BANSAL ; AM IN THIS CASE, THE TRIBUNAL PASSED THE ORDER ON T HE APPEAL OF THE REVENUE ON 17.10.2008, IN WHICH THE APPEAL WAS PA RTLY ALLOWED. THE REVENUE MOVED A MISCELLANEOUS APPLICATION ON 2 3.04.2009 IN RESPECT OF CERTAIN ARTICLES SOLD BY THE ASSESSEE FOR A S UM OF RS. 39,47,136/-. THE APPLICATION SOUGHT TO GET THE ORDER RECTIFIED U /S 254(2) BY STATING THAT ONE OF THE LEGAL ISSUES INVOLVED IN THE GROUNDS IS WHE THER, THE ARTICLES CLAIMED TO HAVE BEEN SOLD BY THE ASSESSEE ARE C APITAL ASSETS OR NOT? THIS QUESTION HAS NOT BEEN DECIDED BY THE TRIBUNAL. THE APPLICATION WAS DISMISSED ON 17.7.2009 BY MENTIONING THAT THE RE VENUE DID NOT RAISE ANY GROUND THAT SOME ARTICLES WERE NOT PERSONAL EFFEC TS BUT WERE CAPITAL M.A.NO.502(DEL)/2009 2 ASSETS. THEREAFTER, THE ASSESSEE FILED A MISCE LLANEOUS APPLICATION ON 16.9.2009 IN RESPECT OF TWO ADDITION OF RS. 10.0 0 LAKH AND RS. 25.00 LAKH IN RESPECT OF M/S SHAMMI MOTORS (P) LTD. AND MR . A.K. SINGH, CONFIRMED BY THE TRIBUNAL BY REVERSING THE ORDER OF THE LD. CIT(APPEALS). 1.1 IN RESPECT OF ADDITION OF RS. 10.00 LAKH FRO M M/S SHAMMI MOTORS (P) LTD., IT IS INTER-ALIA MENTIONED THAT CONFIR MATION AND OTHER EVIDENCES WERE FILED BEFORE THE LD. CIT(APPEALS), WHICH ARE PART OF THE RECORD TAKEN INTO CONSIDERATION BY THE LD. CIT(APPEALS) WHILE DELETING THE ADDITION. SIMILARLY, IN RESPECT OF ADDITION OF RS. 25.00 LA KH, (RS. 20.00 LAKH IN CASH AND RS. 5.00 LAKH BY DEMAND DRAFTS), IT IS MENTI ONED THAT THE ASSESSEE HAD FILED CONFIRMATION AND OTHER EVIDENCES WHICH ARE A PART OF THE RECORD OF CASE OF THE ASSESSEE BEFORE THE LD. CIT(A). THI S WAS NOT TAKEN INTO ACCOUNT. THEREFORE, IT HAS BEEN URGED THAT A MIS TAKE APPARENT FROM RECORD HAS OCCURRED IN THE ORDER OF THE TRIBUNAL, WHICH MAY BE RECTIFIED BY RECALLING THE ORDER AND TAKING INTO CONSIDERATION THE MATERIAL WHICH ALREADY EXISTS ON RECORD OF THE ASSESSEE. 2. BEFORE PROCEEDING FURTHER, WE MAY REPRODUCE HERE THE FINDINGS OF THE TRIBUNAL IN RESPECT OF BOTH THESE AMOUNTS. IN REGARD TO M/S SHAMMI M.A.NO.502(DEL)/2009 3 MOTORS (P) LTD., THE FACTS, THE RIVAL ARGUMENTS AND THE FINDINGS ARE CONTAINED IN PARAGRAPH NOS. 10 TO 10.2 OF THE OR DER OF THE TRIBUNAL. THESE FINDINGS ARE REPRODUCED BELOW:- 10. THE LAST SUM OF RS. 10.00 LAKH WAS ADDED BY THE AO BY POINTING OUT THAT NO EVIDENCE OR EXPLANATIO N WAS FURNISHED BY THE ASSESSEE. IN THE REMAND REPOR T, IT WAS POINTED OUT THAT NEITHER THE ADDRESS OF M/S S HAMEE MOTORS WAS FURNISHED NOR ANY CONFIRMATION WAS FIL ED FROM THIS PARTY. THEREFORE, IT WAS NOT FEASIBLE TO MAKE ANY ENQUIRY INTO THE GENUINENESS OF THE EXPLANATION OF THE ASSESSEE. THE LEARNED CIT(APPEALS) ACCEPTED THE EXPLANAT ION OF THE ASSESSEE THAT THE AMOUNT WAS PAID TO THE CUSTOMS DEPARTMENT FOR PURCHASE OF IMPORTED CAR FROM MR. THOMAS, A TRANSACTION RESCINDED BY THE ASSESSEE, LEADIN G TO REFUND OF THE AMOUNT BY M/S SHAMEE MOTORS TO THE ASSESSEE . THE CONFIRMATION FROM M/S SHAMEE MOTORS WAS ALSO P LACED ON RECORD. THUS, THERE WAS NO JUSTIFICATION FOR M AKING THE ADDITION. 10.1 BEFORE US, THE RIVAL PARTIES REITERATED T HE POSITION MENTIONED ABOVE. IN THE REJOINDER, THE LEARNED DR ALSO POINTED OUT THAT THERE WAS NO CONFIRMATION ON R ECORD FROM M/S SHAMEE MOTORS IN THE PAPER BOOK, A FACT MENTIONED BY THE AO IN THE REMAND REPORT. 10.2 WE HAVE CONSIDERED THE FACTS OF THE CASE A ND RIVAL SUBMISSIONS. WE FIND THAT THE PAPER BOOK DOES NO T CONTAIN ANY DETAIL ABOUT THE IDENTITY OF MR. THOMAS, F ROM WHOM THE ASSESSEE INTENDED TO PURCHASE AN IMPORTED CAR. SUCH IS ALSO THE CASE IN RESPECT OF M/S SHAMEE MOTORS. IF THE ASSESSEE HAD PAID CUSTOMS DUTY ON BEHALF OF M R. THOMAS, WHICH WAS REFUNDED TO HIM BY M/S SHAMEE MOTORS, HE SHOULD HAVE PLACED AT LEAST PRIMA-FACIE EVID ENCE IN RESPECT THEREOF BEFORE THE AO AS WELL AS IN THE PA PER BOOK. THE ALLEGATION OF THE AO IS THAT EVEN ADDRESS OF M/ S SHAMEE M.A.NO.502(DEL)/2009 4 MOTORS WAS NOT FURNISHED. THE LEARNED CIT(APPEAL S) SUMMARILY DISMISSED HIS CASE BY STATING THAT T HE CONFIRMATION WAS ON RECORD AND THE CHEQUE REC EIVED BY HIM WAS DEPOSITED IN HIS BANK ACCOUNT ON 19.11.2 001. WE ARE OF THE VIEW THAT IN ABSENCE OF FILING ANY PR IMA FACIE EVIDENCE ABOUT IDENTITY OF MR. THOMAS AND M/S S HAMEE MOTORS, AND TRANSACTIONS UNDERTAKEN WITH THEM , IT CANNOT BE SAID THAT THE ONUS CAST ON THE ASSESSEE WAS DISCHARGED. THEREFORE, WE ARE OF THE VIEW THAT THE LEARNED CIT(APPEALS) ERRED IN DELETING THE IMPUGNED SUM OF RS. 10.00 LAKH FROM THE TOTAL INCOME OF THE ASSESSEE. 2.1 SIMILARLY, THE FACTS, THE RIVAL SUBMISSIONS A ND THE FINDINGS IN RESPECT OF THE AMOUNT OF RS. 25.00 LAKH STATED TO HAVE BE EN RECEIVED FROM MR. A.K. SINGH, AND COVERED IN PARAGRAPH NO. 2 OF THE APPL ICATION, ARE DEALT WITH PARAGRAPH NOS. 5 TO 5.2 AND 8 & 8.1. THESE PAR AGRAPHS ARE REPRODUCED BELOW:- 5. THE SECOND AMOUNT OF RS. 20.00 LAKH WAS STATED TO HAVE BEEN RECEIVED BY THE ASSESSEE FROM SHRI ANIL KUMAR SINGH OF PATNA. WE HAVE ALREADY REFERRED TO TH E FINDING OF THE AO, IN WHICH THE ADDITION WAS MADE ON T HE GROUND THAT NO EVIDENCE REGARDING RECEIPT FROM SHRI KRISH NA CHANDRA PRASAD SINGH, ALIAS ANIL KUMAR SINGH (HEREINAFTER REFERRED TO AS ANIL KUMAR SINGH) WAS FILED BEFORE HIM. THIS POSITION WAS REITERATED BY HIM IN THE REMAND REP ORT. HOWEVER, THE LEARNED CIT(A) MENTIONED ON PAGE 11 OF HIS ORDER THAT THIS AMOUNT WAS RECEIVED IN CASH FROM M/S JAGDISH PRASAD VERMA, WITH WHOM THE ASSESSEE ENTERED INTO DEVELOPMENT AGREEMENT IN RESPECT OF CER TAIN PROPERTIES. THERE APPEARS TO BE A MISTAKE IN TH E ORDER OF THE LEARNED CIT(APPEALS) IN THIS BEHALF FOR THE R EASON THAT THE PAPER BOOK CONTAINS TWO AGREEMENTS TO SELL WI TH SHRI ANIL KUMAR SINGH DATED 12.6.2001 IN REGARD TO TWO PROPERTIES. THESE AGREEMENTS WERE ENTERED INTO BY THE ASSESSEE AS M.A.NO.502(DEL)/2009 5 DULY CONSTITUTED ATTORNEY OF SMT. SAIYEDA MEHED I IMAM AND THE CONSIDERATIONS WERE RS. 12.00 LAKH AND RS. 7.00 LAKH. BOTH THE DOCUMENTS WERE EXECUTED ON 12.6.2001 . THE LEARNED CIT(A) CAME TO THE CONCLUSION THAT IN V IEW OF THESE DOCUMENTS, IT COULD BE SAID THAT THE ASSES SEE RECEIVED A TOTAL SUM OF RS. 20.00 LAKH IN CASH FROM SHRI A NIL KUMAR SINGH AND CONSEQUENTLY DELETED THE ADDITION MADE BY THE AO IN THIS BEHALF. 5.1 BEFORE US, THE LEARNED DR REFERRED TO THE CLAUSES IN THE AGREEMENTS IN REGARD TO CONSIDERATIONS, W HICH HAVE BEEN IDENTICALLY WORDED, ONE OF WHICH READS AS UNDER:- THAT IN CONSIDERATION OF THE SAID SUM OF RS. 7,00,000/- (RUPEES SEVEN LACS ONLY) WHICH SUM HAS ALREADY BEEN PAID BY THE SECOND PARTY TO THE FI RST PARTY BY D/D AND PARTLY IN CASH, THE RECEI PT OF THE SAME ADMITS AND ACKNOWLEDGES BY THE FIRST PARTY. THE FIRST PARTY DO HEREBY SELL, TRANSFER, CONVEY, ASSIGN AND PART THE SAID SHARE OF THE SAID PROP ERTY WITH ALL OWNERSHIP RIGHTS, TITLE AND INTERES TS ALONG WITH ALL FITTINGS, FIXTURES, CONNECTIONS WHASOEV ER APPURTENANT THEREOF, TO HAVE AND TO HOLD THE SA ME UNTO THE SECOND PARTY, ABSOLUTELY AND FOREVER. THE ONLY DIFFERENCE IN THE SECOND AGREEMENT I S WITH REGARD TO CONSIDERATION, WHICH IS RS. 12.00 LAKH IN PLACE OF RS. 7.00 LAKH. THE CASE OF THE LEARNED DR WAS THAT THE CONSIDERATIONS WERE RECEIVED PARTLY BY DEMAND DRAFT AND PARTLY IN CASH AND, THEREFORE, IT CANNOT BE S AID THAT THE WHOLE OF THE AMOUNT OF RS. 20.00 LAKH WAS RECE IVED BY THE ASSESSEE IN CASH. IT WAS ALSO POINTED OUT TH AT THE AFORESAID PART OF THE AGREEMENT STATES THAT THE CONSID ERATION HAS ALREADY BEEN PAID BUT THE DATE OF PAYMENT HAS NOT BEEN MENTIONED. THE DATE OF AGREEMENTS IS 12.6.20 01. THEREFORE, IT CANNOT BE SAID ON THE BASIS OF THESE AGREEMENTS THAT THE MONIES WERE RECEIVED O N OR BEFORE 3.4.2001, BEING THE DATE OF DEPOSIT IN CASH IN THE BANK ACCOUNT. IN REPLY, THE LEARNED COUNSEL POINT ED OUT THAT THE M.A.NO.502(DEL)/2009 6 MENTION OF DEMAND DRAFT AND CASH IN THE CONSI DERATION CLAUSES SHOULD NOT OVER-WEIGH THE FACT THAT T HE WHOLE OF THE CONSIDERATION WAS RECEIVED IN CASH. THE CL AUSE ALSO STATES THAT THE CONSIDERATION HAS ALREADY BE EN PAID. THEREFORE, IT WAS ARGUED THAT THE ASSESSE E WAS IN POSSESSION OF A SUM OF RS. 20.00 LAKH WHICH COULD BE DEPOSITED IN HIS BANK ACCOUNT ON 3.4.2001. 5.2 WE HAVE CONSIDERED THE FACTS OF THE CASE AND RIVAL SUBMISSIONS. WE FIND THAT AS PER AGREEMENT S DATED 12.6.2001, THE ASSESSEE RECEIVED A TOTAL S UM OF RS. 19.00 LAKH FROM SHRI ANIL KUMAR SINGH, WHICH WAS S TATED TO HAVE BEEN ALREADY PAID. HOWEVER, THE DATE OF PAYMENT IS NOT ASCERTAINABLE WITH REFERENCE TO ANY EVID ENCE ON RECORD. WHILE DISCUSSING THE RECEIPT FROM T HE GANAPATI, IT WAS POINTED OUT THAT THE ONUS TO PROVE THE NATURE AND SOURCE OF RECEIPT OF RS. 20.00 LAKH ON OR BEFORE 3.4.2001 IS ON THE ASSESSEE. THERE IS AN EVIDENCE OF RECEIPT OF RS. 19.00 LAKH PARTLY IN CASH AND PARTLY BY WAY O F DEMAND DRAFT ON OR ABOUT 12.6.2001. HOWEVER, THE RE IS NO EVIDENCE THAT THE WHOLE OF THE MONEY WAS RECE IVED IN CASH ON OR BEFORE 3.4.2001. THUS, THE CASE OF T HE ASSESSEE IS AGAIN BUILT ON CIRCUMSTANTIAL EVIDENCE, WHICH DOES NOT ESTABLISH THE FACTUM OF RECEIPT OF RS. 20.00 LAKH IN CASH ON OR BEFORE 3.4.2001. FURTHER, THE SUM TOTAL OF MONEY RECEIVED FROM SHRI ANIL KUMAR SINGH IS ONLY RS. 19.00 LAKH AND NOT RS. 20.00 LAKH THUS, THERE IS A GA P ALSO OF RS. 1.00 LAKH IN TERMS OF THE ACTUAL CONSIDERATION A ND THE ARGUMENTS MADE BEFORE US AND THE LOWER AUTHORIT IES. AGAIN, IT IS SURPRISING THAT THE ASSESSEE DID NOT FIL E ANY CONFIRMATION FROM SHRI ANIL KUMAR SINGH IN SPITE OF THE FACT THAT HE HAS DEALT WITH HIM NOT ONLY IN RESPECT OF AFORES AID PROPERTIES BUT HE ALSO SOLD MOVABLE PROPERTIES TO HIM. TH E CASES DISCUSSED IN CONNECTION WITH RECEIPT OF RS. 20 .00 LAKH FROM THE GANAPATI ARE EQUALLY APPLICABLE IN RESPECT OF THIS AMOUNT. CONSIDERING OUR FINDING IN RESPECT OF THAT AMOUNT, WE ARE OF THE VIEW THAT THE ASSESSEE HAS NOT REASONABLY ESTABLISHED THAT HE RECEIVED A SUM OF RS. 20. 00 LAKH FROM SHRI ANIL KUMAR SINGH IN CASH ON OR BEFORE 3.4.2 001, WHICH COULD HAVE BEEN EASILY DONE BY PRODUCING A CONFIRMATORY M.A.NO.502(DEL)/2009 7 LETTER FROM HIM ALONG WITH EXTRACT OF ENTRIES FROM HIS BOOKS OF ACCOUNT OR BANK PASS BOOK. THEREFORE , OUR FINDINGS IN RESPECT OF THE AFORESAID SUM OF R S. 20.00 LAKH ARE MADE APPLICABLE IN RESPECT OF THIS AMOUNT ALSO. CONSEQUENTLY, IT IS HELD THAT THE LEARNED CIT(A ) ERRED IN DELETING THE ADDITION OF THIS AMOUNT FROM THE COMPUTATION OF TOTAL INCOME OF THE ASSESSEE. X X X X X X X 8. THERE ARE THREE DEPOSITS OF RS. 2.00 LAKH, R S. 2.00 LAKH AND RS. 1.00 LAKH ON 8.6.2001, 9.6.2001 AND 9.6.20 01 RESPECTIVELY. THE EXPLANATION OF THE ASSESSEE WAS THAT THESE AMOUNTS WERE RECEIVED FROM THE AUNT B Y WAY OF DEMAND DRAFTS DRAWN ON BOMBAY MERCANTILE BANK. IT WAS POINTED OUT THAT THE LADY HAD EXPIRED AND, T HEREFORE, IT WAS NOT POSSIBLE TO OBTAIN ANY CONFIRMATION FROM HER. THIS EXPLANATION WAS NOT ACCEPTED BY THE ASSESSING OFFICER STATING THAT THERE WAS NO EVIDENCE WHATSOEVER IN RESPECT OF RECEIPT OF THE IMPUGNED SUM OF RS. 5.00 LAKH FRO M THE AUNT. THE POSITION TAKEN BY THE AO IN THE REMAND REPO RT WAS THAT NO EVIDENCE WHATSOEVER WAS FILED IN RESPECT OF THE RECEIPT OF AFORESAID DRAFTS. EVEN THE COPY OF BANK ACCOUNT MAINTAINED BY HER THROUGH WHICH THE CONSIDERATION FOR THE DEMAND DRAFT WAS PAID, WAS NOT FILED. THE LEA RNED CIT(A) DELETED THE ADDITION BY STATING THAT THE ADV ANCES WERE RECEIVED BY THE DECEASED LADY AS ADVANCE AGA INST SALE OF PROPERTIES, WHICH WERE DULY REFLECTED IN THE AGREEMENTS FOR SALES AS WELL AS THE CONFIRMATION OF PARTIES W HO HAD GIVEN THESE ADVANCES, AND THE AO HAS NOT FALSIFIED THE AFORESAID SUBMISSIONS. 8.1 BEFORE US, RIVAL POSITIONS AS AFORESAID WERE REITERATED BY THE LEARNED DR AND THE LEARNED CO UNSEL FOR THE ASSESSEE. WE HAVE ALSO PERUSED THE PAPER BO OK FILED BEFORE US AND IT IS FOUND THAT IT DOES NOT CO NTAIN THE BANK ACCOUNT OF THE AUNT OR THE AGREEMENT FOR SALE OF PROPERTIES, MENTIONED BY THE LEARNED CIT(A) IN HIS ORDER. THE LEARNED CIT(A) HAS ALSO NOT MENTIONED THE DETAILS OF TH E PROPERTIES AGAINST WHICH THE ADVANCES WERE RECEIVED OR T HE NAMES OF M.A.NO.502(DEL)/2009 8 THE PARTIES FROM WHOM SUCH ADVANCES WERE RE CEIVED. THERE IS NO CONFIRMATION IN THE PAPER BOOK FR OM THE PURCHASERS OF THE PROPERTIES, WHOSE IDENTITY IS ALSO NOT THERE ON THE RECORD. IN VIEW THEREOF, IT IS CLEAR T HAT THE ASSESSEE FAILED TO DISCHARGE HIS ONUS REGARDING NATURE AND SOURCE OF THIS MONEY. CONSEQUENTLY, IT IS ALSO HELD THAT THE AO WAS RIGHT IN MAKING THE IMPUGNED ADDITION OF RS. 5.0 0 LAKH AND THE LEARNED CIT(A) ERRED IN DELETING THE A DDITION BY REFERRING TO AGREEMENTS AND CONFIRMATIONS, WHICH WERE NOT THERE ON THE RECORD. 2.2 AT THIS STAGE, IT WILL BE APPROPRIATE TO SU MMARIZE THE FINDINGS OF THE LD. CIT(A) IN THE MATTER. IN SO FAR AS THE AMOUN T OF RS. 10.00 LAKH FROM M/S SHAMMI MOTORS (P) LTD. IS CONCERNED, IT IS COV ERED IN PARAGRAPH NO. 4.4., WHICH IS REPRODUCED BELOW:- 4.4 AS REGARD THE LAST ENTRY BEING RS. 10 L ACS DEPOSITED ON 21.11.2001 I FIND THAT THE ASSESSEE HAD GIVE N A DRAFT IN THE NAME OF THE COMMISSIONER CUSTOMS ON BEHALF O F HIS FRIEND AND ACQUAINTANCE SHRI THOMAS FROM WHOM TH E ASSESSEE WANTED TO PURCHASE AN IMPORTED CAR. L ATER, THE ASSESSEE CAME TO KNOW THAT SUCH A PURCHASE WOULD NO T BE PERFECTLY LEGAL, AND, THEREFORE, HE OPTED OUT AND DID NOT PURCHASE THE CAR. IN THE MEANWHILE, THE DRAFT PR EPARED BY THE ASSESSEE HAD BEEN ENCASHED BY THE COMMISSIONER CUS TOMS. SUBSEQUENTLY, THIS CAR WAS PURCHASED BY M/S SHAMM I MOTORS, NEW DELHI, WHO REFUNDED THE AMOUNT OF RS. 10 LACS TO THE ASSESSEE VIDE ACCOUNT PAYEE CHEQUE, DEPOSITED IN SBI ACCOUNT NO. 13625 OF THE ASSESSEE ON 19.11.2001. THIS CONFIRMATION OF M/S SHAMMI MOTORS HAD ALSO PLACE D ON RECORD, AND ALL OTHER DETAILS WERE MADE AVAILABL E TO THE AO. AS A RESULT THE ENTRY OF RS. 10 LACS ALSO STANDS EXPLAINED. M.A.NO.502(DEL)/2009 9 2.3 THE OTHER ADDITION OF RS. 25.00 LAKH IS ME NTIONED IN PARAGRAPH NO. 2 OF THE MISCELLANEOUS APPLICATION AND IT IS POI NTED OUT THAT THE DECISION OF THE LD. CIT(A) IS CONTAINED IN PARAGRAPH 4.2 OF HIS ORDER, WHICH READS AS UNDER:- 4.2 AS REGARDS THE NEXT 3 ENTRIES SL. NO. 3, 4 AND 5 AND ALSO BEING RS. 2 LACS CASH EACH DEPOSITED ON 8.6.2001 AND RS. 1,00,000/- DEPOSITED ON 9.6.2001 IT WAS EXPLAI NED THAT ALL THESE THREE AMOUNTS REPRESENT MONIES RECEIVED TH ROUGH DRAFTS ON BEHALF OF HER AUNT, AS ADVANCE AGAINST SALE O F PROPERTIES, WHICH IS DULY REFLECTED IN THE AGREEMENTS TO SALE, AS WELL AS IN THE CONFIRMATION OF PARTIES WHO HAD GIVEN THESE ADVANCES. THESE WERE PLACED ON THE RECORD OF THE AO AND THE AO HAS NOT FALSIFIED THE ABOVE SUBMISSIONS. IN THE LI GHT OF THE ABOVE THESE THREE ENTRIES, IN MY OPINION, ALSO STAND D ULY EXPLAINED. 2.4 IT MAY BE MENTIONED HERE THAT THIS PARAGRAP H DEALS ONLY WITH TWO SUMS OF RS. 2 LAKH AND RS. 1.00 LAKH DEPOSITED IN THE ACCOUNTS OF THE ASSESSEE ON 8.6.2001 AND 9.6.2001 RESPECTIVELY. 3. BOTH THE PARTIES FILED THEIR PAPER BOOKS IN T HE COURSE OF HEARING OF THE MISCELLANEOUS APPLICATION. THE PAPER BOOK O F THE ASSESSEE CONSISTS OF 18 PAGES. PAGE NO. 3 CONSISTS OF CONFIRMATION FROM M/S SHAMMI MOTORS (P) LTD., AND PAGE NO. 17 CONSISTS OF CONFIRMATIO N FROM MR. A.K. SINGH. THE CERTIFICATE TO THE PAPER BOOK STATES THAT NONE OF THESE EVIDENCES M.A.NO.502(DEL)/2009 10 WERE FILED BEFORE THE AO AND THEY WERE FILED BEFOR E THE LD. CIT(A). THE PAPER BOOK OF THE REVENUE CONSISTS OF ITEMS 1A TO 1F AND 2 TO 4. PAGE NO. 2 CONSISTS OF A LETTER DATED 6.2.2006 WRI TTEN BY THE LD. CIT(A) TO THE ASSISTANT COMMISSIONER OF INCOME-TAX SEEKING CLAR IFICATION ON ASSESSEES SUBMISSIONS DATED 16.1.2006. THE ASSESSEES L ETTER IS ENCLOSED AND PLACED IN THE PAPER BOOK ON PAGES 4 TO 9 ALONG WITH ITS ENCLOSURES. THE ENCLOSURES, INTER-ALIA, CONSIST OF THE DETAI LS OF SALE OF PERSONAL EFFECTS, DEVELOPMENT AGREEMENT DATED 2.12.2000 WITH M/S GANAPATI BUILDERS, AFFIDAVIT OF MR. J.C. VERMA, MR. VERMAS LETTER DATED 26.9.2001 ADDRESSED TO THE ACTING CHAIRMAN OF BIHAR SHIA WAQF BOARD, DEPOSIT SLIP OF RS. 25,03,125/-, THREE CHEQUES OF RS. 9.00, RS. 9.00 LAKH AND RS. 7.00 LAKH, AND AGREEMENT TO SELL BETWEEN THE ASSESSE E AND MR. ANIL KUMAR DATED 12.6.2001. THIS PAPER BOOK HAS BEEN FILE D TO SHOW THAT THE ALLEGED CONFIRMATIONS OF M/S SHAMMI MOTORS (P) LT D. AND MR. A.K. SINGH WERE NOT FORWARDED BY THE LD. CIT(A) TO THE AO FOR REMAND REPORT AND, THEREFORE, SUCH CONFIRMATIONS DO NOT EXIST ON THE RECORD OF THE LD. CIT(A). 4. BEFORE US, THE LD. COUNSEL REITERATED THAT CON FIRMATION FROM M/S SHAMMI MOTORS (P) LTD. AND MR. A.K. SINGH WERE FILED BEFORE THE LD. M.A.NO.502(DEL)/2009 11 CIT(A), AS MENTIONED BY HIM IN HIS APPELLATE ORDE R. THE APPEAL WAS FILED BY THE REVENUE AND IT WAS FOR THE REVENUE TO DISP LACE HIS FINDING BY BRINGING COGENT EVIDENCE ON RECORD INCLUDING FA ILURE OF THE ASSESSEE TO FILE THESE CONFIRMATIONS, IF THAT WAS A MATTER OF FACT. THE TRIBUNAL DID NOT CALL FOR THE RECORDS OF THE LD. CIT(A) AND, THERE FORE, ERRED IN NOT TAKING INTO ACCOUNT THESE CONFIRMATIONS. 4.1 AS AGAINST THE AFORESAID, THE SUBMISSION OF THE LD. DR IS THAT SUCH CONFIRMATIONS WERE NOT FILED BEFORE THE LD. CIT( A) AS HE HAD NOT FORWARDED THESE CONFIRMATIONS FOR THE VERIFICA TION WHILE PETTY CONFIRMATIONS IN RESPECT OF SALE OF PERSONAL EFF ECTS WERE ALSO FORWARDED TO THE AO FOR COMMENTS. 4.2 IN THE REJOINDER, THE CASE OF THE LD. COUNSEL IS THAT THE LD. CIT(A) GAVE A CLEAR FINDING THAT THESE CONFIRMATIONS WER E ON RECORD. THEREFORE, WHILE INTERPRETING THE EXPRESSION MISTAKE APPAREN T FROM RECORD, THE RECORD OF THE LD. CIT(A) CANNOT BE IGNORED, AS HELD BY H BENCH OF THE TRIBUNAL IN THE CASE OF SMT. NEELAM CHOUDHARY IN M.A. NO. 170(DEL)/2009 DECIDED ON 19.06.2009. M.A.NO.502(DEL)/2009 12 4.3 THE LD. COUNSEL WAS QUESTIONED AS TO WHY THE ASSESSEE HAD NOT PLACED THESE CONFIRMATIONS IN THE PAPER BOOK FILED BY HIM IN THE COURSE OF DECIDING THE APPEAL BY THE TRIBUNAL. HIS SUBMISSI ON IS THAT IT WAS THE APPEAL OF THE REVENUE AND IT WAS FOR THE REVE NUE TO DISPLACE THE FINDING RECORDED BY THE LD. CIT(A). 5. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. IN VIEW OF THE SUBMISSIONS MADE BEFOR E US, IT APPEARS TO US THAT ADDITION OF THESE AMOUNTS HAS BEEN CONFIR MED WITHOUT TAKING THE FACTS AVAILABLE ON THE RECORD OF THE LD. CIT(A) INTO ACCOUNT. IN THE CASE OF SMT. NEELAM CHOUDHARY (SUPRA), IT WAS HELD T HAT THE FINDING OF THE TRIBUNAL THAT THE APPROVAL WAS NOT OBTAINED AS ST ATUTORILY REQUIRED TO BE OBTAINED FROM THE COMMISSIONER IS CONTRARY TO THE RECORDS WHICH SHOW THAT THE APPROVAL WAS RIGHTLY TAKEN FROM THE COMMISSI ONER, FARIDABAD. THEREFORE, IT WAS HELD THAT THE ORDER WAS AMENABL E TO RECTIFICATORY JURISDICTION. ACCORDINGLY, THE ORDER WAS RECALL ED. THE DECISION IN THAT CASE APPLIES MUTATIS MUTANDIS TO THE FACTS OF THIS CASE. THEREFORE, WE RECALL THE ORDER TO THIS EXTENT. M.A.NO.502(DEL)/2009 13 5.1 FROM THE SUBMISSIONS MADE BEFORE US, IT ALSO BECOMES CLEAR THAT THE AFORESAID CONFIRMATIONS WERE NOT FORWARDED T O THE AO FOR HIS EXAMINATION AND THE DECISION TO ACCEPT THEM WA S TAKEN AT HIS BACK. THIS VIOLATES THE PRINCIPLES OF NATURAL JUSTICE. THE REFORE, WE RESTORE THE MATTER TO THE FILE OF LD. CIT(A) TO DECIDE THE MATTER AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND T HE AO. 6. IN THE RESULT, THE APPLICATION IS TREATED AS ALLOWED AS ABOVE. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 2ND FEBRUARY, 2011. SD/- SD/- (R.P. TOLANI) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 2ND FEBRUARY, 2011. SP SATIA COPY OF THE ORDER FORWARDED TO: SHRI FAIZ MURTAZA ALI, NEW DELHI. ACIT, CIR. 47(1), NEW DELHI. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.