ACIT, New Delhi v. Mrs. Alpana Jain, New Delhi

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO.1146/DEL/2010 ASSESSMENT YEAR : 2006-07 ACIT CENTRAL CIRCLE 12 NEW DELHI. VS. MRS. ALPANA JAIN H-82 SOUTH EXTN. PART-1 NEW DELHI. PAN : AANPJ6817H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.P. RUSTOGI ADVOCATE & SHRI P.N. SHASTRI CA REVENUE BY : MRS. ANUSHA KHURANA SR. DR ORDER PER I.P. BANSAL JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIRECT ED AGAINST THE ORDER OF THE CIT (A) DATED 12 TH DECEMBER 2009 FOR ASSESSMENT YEAR 2006-07. GROUNDS OF APPEAL READ AS UNDER:- 1. THE ORDER OF THE LD. CIT (APPEALS) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (A) WAS WRONG IN ACCEPTING ADDITIONAL EVIDENCE FILED AS ENOUGH OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN CONTRAVENTION TO RULE 46A. 3. ON THE FAC TS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (A) WRONGLY ALLOWED RELIEF ON AGRICULTURAL INCO ME WHEREAS HONBLE ITAT IN THE CASE OF SHRI MAHABIR PRASAD JAIN ITA NOS.2967 TO 2973/DEL/2008 HAS RULED THAT ASSESSEE HAS TO PRODUCE EVIDENCE OF INDULGING IN AGRIC ULTURAL ACTIVITIES DURING THE YEAR UNDER ITA NO.1146/DEL/2010 2 AGRICULTURAL ACTIVITIES DURING THE YEAR UNDER CONSIDERATION. 4. THE APPELLANT CRAVES LEAVE TO ADD ALTER OR AMEN D ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING TH E COURSE OF THE HEARING OF THE APPEAL. 2. THE ASSESSMENT IN THE PRESENT CASE HAS BEEN FRAMED U/S 1 44 OF THE IT ACT 1961 IN PURSUANCE OF A SEARCH AND SEIZURE OPERATION CARRIED OUT ON 10.11.2005 AT THE RESIDENTIAL PREMISES OF THE A SSESSEE. DUE TO THE FAILURE OF THE ASSESSEE TO COMPLY WITH VARIOUS NOTIC ES ISSUED BY THE ASSESSING OFFICER THE ASSESSMENT GOT FRAMED VIDE ORDER DAT ED 28 TH DECEMBER 2007 AT AN INCOME OF ` 12 75 500/- AGAINST THE RETURNED INCOME OF ` 3 02 222/-. LD. CIT (A) HAS DELETED THE ADDITIONS AGAINST WHICH THE REVENUE IS AGGRIEVED AND IS IN APPEAL. 3. AT THE OUTSET IT WAS SUBMITTED BY THE LEARNED AR T HAT ITAT VIDE ITS ORDER DATED 26 TH NOVEMBER 2010 IN ANOTHER GROUP CASE NAMELY ACIT VS. MRS. SEEMA JAIN IN ITA NO.1147/DEL/2010 HAS RESTORED THE MATTER BACK TO THE FILE OF ASSESSING OFFICER AND SUBMITT ED THAT SIMILAR VIEW MAY BE TAKEN IN THE CASE OF THE PRESENT ASSESSEE ALSO . 4. THE LEARNED DR DID NOT OBJECT TO SUCH SUBMISSIONS OF LEARNED AR. A COPY OF THE AFOREMENTIONED ORDER OF THE TRIBUNAL IN THE CASE OF MRS. SEEMA JAIN WAS ALSO FILED. 5. IN THIS VIEW OF THE SITUATION AFTER HEARING BOTH THE PARTIES FOLLOWING THE AFOREMENTIONED ORDER WE RESTORE THIS I SSUE TO THE FILE OF ASSESSING OFFICER WITH THE SIMILAR DIRECTIONS. FOR THE SA KE OF COMPLETENESS THE SAID ORDER IS REPRODUCED HEREIN BELOW :- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 24 .12.2009 PERTAINING TO ASSESSMENT YEAR 2006-07. ITA NO.1146/DEL/2010 3 2. THE FIRST ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS WRONG IN ACCEPTING ADDITIONAL EVIDE NCE FILED AS ENOUGH OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE D URING THE COURSE OF ASSESSMENT PROCEEDINGS IN CONTRAVENTION TO RULE 46A. 3. IN THIS CASE ASSESSMENT WAS FRAMED U/S 144 OF THE I T ACT. THE CASE IS RELATED TO SEARCH AND SEIZURE OPERATION U /S 132 OF THE IT ACT. DURING THE COURSE OF ASSESSMENT NO REPLY TO ASSESSING OFFICER S QUERY WAS FILED. ASSESSING OF FICER PROCEEDED TO MAKE ASSESSMENT TOTAL TAXABLE INCOME OF ` 31 38 871/-. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOM E TAX (APPEALS) IN PARA 3.1 OF HIS ORDER NOTED THAT SINCE THE ASSESSING OFFICER PASSED ORDER U/S 144 WHEN NO DETA ILS WAS SUBMITTED ON BEHALF OF THE ASSESSEE DESPITE GIVING SUFF ICIENT OPPORTUNITIES THE PASSING OF EXPARTE ORDER IS HELD AS JUSTIFIED. HOWEVER THE PAPER BOOK SUBMITTED EXPLAINING THE INFORM ATION SUBMITTED AND THE PAST INFORMATION ON RECORD ARE BEING CONSIDERED. THEREAFTER LD. COMMISSIONER OF INCOME TAX (APPEALS) PROCEEDED TO ADJUDICATE THE ISSUE AND PARTLY ALLOWED THE APPEAL. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFOR E US. 6. AT THE THRESHOLD IT HAS BEEN CONTENDED THAT NO INFORMA TION WHATSOEVER WAS PROVIDED TO THE ASSESSING OFFICER DES PITE SUFFICIENT OPPORTUNITIES WERE BEING GIVEN TO THE ASSESS EE. THIS FACT HAS CLEARLY BEEN ACCEPTED BY THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) DESPITE THAT HE HAS PROCEEDED TO ADJUDICATE THE ISSUE ON THE BASIS OF PAPER BOOK AND EX PLANATION AND INFORMATION SUBMITTED WITHOUT GIVING THE ASSESSING O FFICER AN OPPORTUNITY TO GO THROUGH THE SAME. 6.1 LD. COUNSEL OF THE ASSESSEE FAIRLY AGREED TO THE PROPOSITION THAT ASSESSING OFFICER HAS NOT BEEN GIVE N PROPER OPPORTUNITY BY THE LD. COMMISSIONER OF INCOME TAX (APP EALS) TO GO THROUGH THESE SUBMISSIONS AND DOCUMENTS WHICH WERE NOT SUBMITTED BEFORE THE ASSESSING OFFICER. UNDER THE CIRCUMSTANCES BOTH THE COUNSEL FAIRLY AGREED THAT THE MA TTER SHOULD BE REMITTED TO THE FILES OF THE ASSESSING OFFIC ER TO CONSIDER THE SAME AFRESH. ACCORDINGLY THE ISSUE I S REMITTED TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE SAM E AFRESH. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQ UATE OPPORTUNITY OF BEING HEARD. 7. SINCE WE ARE REMITTING THE MATTER FOR FRESH CONSIDERA TION ON THE PRELIMINARY ISSUE TO THE FILES OF THE ASSESSING OFFICER THE OTHER ISSUES RAISED IN THE APPEAL ARE NOT BEING AD JUDICATED. ITA NO.1146/DEL/2010 4 8. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26/11/2 010 UPON CONCLUSION OF HEARING. 6. IN THE RESULT FOR STATISTICAL PURPOSES THE APPEAL F LED BY THE REVENUE IS TREATED AS ALLOWED IN THE MANNER AFORESAID. 7. THE ORDER PRONOUNCED IN THE OPEN COURT ON 18.02. 2011. SD/- SD/- [A.K. GARODIA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 18.02.2011. 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