ITO, New Delhi v. Sh. Sunil Atree, New Delhi

ITA 2987/DEL/2013 | 2009-2010
Pronouncement Date: 03-11-2014 | Result: Allowed

Appeal Details

RSA Number 298720114 RSA 2013
Assessee PAN AFUPA2322N
Bench Delhi
Appeal Number ITA 2987/DEL/2013
Duration Of Justice 1 year(s) 5 month(s) 19 day(s)
Appellant ITO, New Delhi
Respondent Sh. Sunil Atree, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 03-11-2014
Appeal Filed By Department
Order Result Allowed
Bench Allotted G
Tribunal Order Date 03-11-2014
Date Of Final Hearing 03-11-2014
Next Hearing Date 03-11-2014
Assessment Year 2009-2010
Appeal Filed On 14-05-2013
Judgment Text
ITA NO. 2987/ DEL/ 201 3 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI T.S. KAPOOR ACCOUNTANT MEMBER I.T.A. N O. 29 8 7 /DEL/201 3 A.Y. : 2009 - 10 ITO WARD 32(4) R.NO. 1510 15 TH FLOOR BLOCK E - 2 DR. SP MUKHERJEE CIVIC CENTRE NEW DELHI VS. SH. SUNIL ATREE 279 - A MASJID MOTH SOUTH EXTENSION - II NEW DELHI 49 (PAN: AFUPA2322N) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. BRR KUMAR SR. D.R. DEPARTMENT BY : SH. DEEPAK BANSAL CA DATE OF HEARING : 03 - 11 - 2014 DATE OF ORDER : 03 - 11 - 2014 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - X XVI NEW DELHI DATED 26 . 3 .2013 P ERTAINING TO ASSESSMENT YEAR 200 9 - 10. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER: - O N THE FACT S AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS. 36 00 000/ - WITH REGARD TO THE SOURCE OF INVESTMENT MADE IN THE IMMOVABLE ITA NO. 2987/ DEL/ 201 3 2 PROPERTY TREATING THE SAME AS UNEXPLAINED INVESTMENT U/S. 69 OF THE I.T. ACT. 3. THE FACTS OF THE CASE AR E NOT IN DISPUTE BY BOTH THE PARTIES THEREFORE NEED NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. LD. DR RELIED UPON THE ORDER PASSED BY THE AO AND THE CONTENTION RAISED BY THE DEPARTMENT IN THE GROUNDS OF APPEAL. HE FURTHER DRAW OUR ATTENTION TO WARDS PARA NOS. 7 8 AND 8.1 OF THE LD. CIT(A) MENTIONED AT PAGE NO. 5 AND 6 AND STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED A NON - S PEAKING ORDER AND WRONGLY DELETED THE ADDITION OF RS. 36 LACS MADE BY THE AO. HE REQUESTED THAT THE IMPUGNED ORDER MAY BE CANCELLED AND AO ORDER MAY BE UPHELD. 4.1 ON THE CONTRARY LD. COUNSEL OF THE ASSESSEE RELIED UPON THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND STATED THAT LD. CIT(A) HAS DELETED THE ADDITION ON THE BASIS OF ADDITIONAL EVIDENCES. HE REQUESTED THAT THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS AVAILABLE ON RECORD. WE ARE OF THE CONSIDERED VIEW THAT LD. FIRST APPELLATE AUTHORITY HAS PASSED A NON SPEAKING ORDER. THE RELEV ANT PARAGRAPH NO S . 7 8 AND 8.1 OF THE LD. CIT(A) S ORDER MENTIONED AT PAGES 5 & 6 ARE REPRODUCED HEREUNDER: - 7. THE COPY OF THE ASSESSING OFFICER'S COMMENTS WAS PROVIDED TO THE APPELLANT FOR REJOINDER. IN RESPECT TO THE SAME THE AR OF THE APPELLANT VID E HIS LETTER DATED 13.3.2013 SUBMITTED AS UNDER: '1. THAT THE AO WHILE OPPOSING THE ADMISSION OF ADDITIONAL EVIDENCE HAS ITA NO. 2987/ DEL/ 201 3 3 STATED IN PARA 3 OF HIS REMAND REPORT DATED 271H FEBRUARY 2013 AS UNDER: I) EVEN OTHERWISE ALSO IN THE CURRENT SUBMISSION THE ASSESSE IS LAYING EMPHASIS ON THE PAYMENTS MADE BY HIM TO THE OWNERS OF THE LAND WHEREAS THE ISSUE IS SOURCE OF PAYMENTS OF RS. 36 LACS MADE BY THE ASSESSE. II) THE SUBMISSION NOW MADE BY THE ASSESSE THAT RS.36 LACS WERE RECEIVED FROM DIFFERENT SOURCES CANNOT BE ACCEPTED BECAUSE THE SAME IS NOT BACKED BY DOCUMENTARY EVIDENCES. IIIJ MOREOVER ALL THESE EVENTS PERTAIN TO THE YEAR 2007 & 2008 MEANING THAT THIS INFORMATION WAS AVAILABLE WITH THE ASSESS EE DURING THE COURSE OF ASSESSMENT PROCEEDING BUT THE SAME WAS NOT PROVIDED THEN. IV) ALL THESE FACTORS PROVE THAT THE PRESENT SUBMISSION OF THE ASSESSE IS NOTHING BUT COOKED - UP STORIES. 2. THAT THE ID. AO HAS STARTED IN THIS PART OF THE REMAND REPORT THAT THE ASSESSEE IS LAYING EMPHASIS ON THE PAYMENTS WHEREAS THE ISSUE IS RELATED TO SOURCE OF INVESTMENT. HOWEVER IN SECOND STATEMENT/SENTENCE HE HAS ITA NO. 2987/ DEL/ 201 3 4 STATED DETAIL OF SOURCE OF THE INVESTMENT IS NOT BACKED BY DOCUMENTARY EVIDENCE. 3. THE ID AO HAS NOT MADE ANY COMMENT ON BANK STATEMENT OF THE APPELLANT AND CORRESPONDING DETAIL AND DOCUMENTARY EVIDENCE PROVIDING DETAIL OF SOURCE OF FUNDS USED FOR MAKING INVESTMENT IN QUESTION. 4. THAT SOURCES OF FUNDS/DETAILS SUBMITTED IN OUR EARLIER SUBMISSION DATED 4 TH JULY 2012 ARE SUMMARIZED AS UNDER: 5. THAT THE ID AO HAS NOT MADE ANY OBSERVATION NEITHER IN HIS ASSESSMENT ORDER NOR IN HIS REMAND REPORT THAT ACTUAL INVESTMENT IN PROPERTY WAS RS 30 LACS AND NOT RS. 36 LACS. DATE AMOUNT SOURCE DOCUMENT NO. 12.11.2007 1 50 000 TRF OF FUNDS FROM OD A/C 10595011000110 8 12.11.2007 1 00 000 TRF OF FUNDS FROM OD A/C 10595011000110 8 20.11.2007 166 500 LOAN AGAINST LIC POLICY NO. 122999556 9 01.2.2008 1 50 000 SALE OF TRUCK NO. DL - 1G B - 1722 10&11 08.2.2008 1 00 000 SALE OF TRUCK NO. DL1G B - 1722 10&11 26.2.2008 40 000 CASH DEPOSIT AT INDORE TRUCK HIRE CHARGES 28.4.2008 24 00 000 TRF FROM OVERDRAFT A/C OF TCC CARRIERS PVT. LTD. 12&13 TOTAL 31 06 500 ITA NO. 2987/ DEL/ 201 3 5 6. THAT PAYMENT TOWARDS PURCHASE OF LAND HAS BEEN MADE TO TWO PARTIES NAMELY SH. FARUQ AND SH. RAMAVTAR DETAIL OF PAYMENTS TO THESE TWO PARTIES HAVE BEEN DETAILED IN PARA 6 & PARA 7 OF EARLIER SUBMISSION DATED 4TH JULY 2012. THESE PAYMENTS HAVE BEEN MADE OVER A PERIOD TIME ARE DULY REFLECTED IN BANK STATEMENT SUBMITTED AT PAGE 1 TO PAGE 3 OF PAPER BOOK OF ADDITIONAL EVIDENCE. 7. THAT ALL PAYMENTS ARE DULY REFLECTED IN THE BANK STATEMENT AND SOURCE AS WELL AS PAYMENTS HAVE BEEN EXPLAINED WITH DOCUMENTARY EVIDENCE WHEREVER AVAILABLE THEREFORE OBSERVATION OF ID AO 'THE PRESENT SUBMISSION OF THE ASSESSE E IS NOTHING BUT COOKED - UP STORIES' IS UNCALLED FOR. IN VIEW OF THE ABOVE IT IS SUBMITTED THAT DOCUMENTS SUBMITTED AS ADDITIONAL EVIDENCE BE ADMITTED AS THEY GO TO THE ROOTS OF THE FACTS OF THE CASE . ' 8. I HAVE CAREFULLY GONE THROUGH THE FACTS OF THE CASE SUBMISSIONS OF THE APPELLANT FOR A DMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A ASSESSING OFFICER'S REMAND REPORT AND APPELLANT'S REJOINDER AND CON SIDERED THEM. IN THE COURSE OF THE APPEAL PROCEEDINGS I FIND THAT THE EVIDENCES NOW PRODUCED ITA NO. 2987/ DEL/ 201 3 6 BEFORE ME UNDER RU LE 46A WOULD GO TO THE VERY ROOT OF THE MATTER AND ARE THEREFORE RELEVANT AND VITAL IN DECIDING THE ISSUE UNDER CONSIDERATION. AFTER CONSIDERIN G THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE NATURE OF EVIDENCES FILED UNDER RULE 46A I ADMIT THESE ADDITIONAL EVIDENCES AND ADJUDICATE THE ISSUES RAISED IN THE GROUNDS OF APPEAL ON THE M ERIT. 8.1 ON PERUSAL OF THE BANK STATEMENT OF THE APPELLANT AND THE BANK STATEMENT OF M/S TCC CARRIERS PVT. LTD. I FIND THAT THE INVESTMENT MADE BY THE APPELLANT IN THE ABOVE IMMOVABLE PROPERTY EXPL AINED. FROM THE DETAILS AND EVIDENCES FILED I FIND THAT EVEN T HE PAYMENT S OF RS. 2 00 000 / - AND RS.4 OO OOO / - TO SH. FAROOQ AND SH. RAM AVTAR WERE MADE PRIOR TO 31.3.2008 AND DOES NOT FALL IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION. PERTAINING TO THE BALANCE PAYMENT THE APPELLANT HAD EXPLA INED WITH DOCUMENTARY EVIDENCE THE SOURCE OF PAYMENT. THEREFORE CONSIDERING ALL THE FACTS OF THE CASE I SEE NO JUSTIFICATION TO SUSTAIN THE ADDITION MADE BY THE ASSESSING OFFICER. ACCORDINGLY THE ADDI TION OF RS. 36 00 000 / - MADE BY THE ASSESSING OFFICE R IS DELETED. 6. AFTER GOING THROUGH THE AFORESAID ORDER PASSED BY THE LD. CIT(A) WE ARE OF THE VIEW THAT NO DOUBT THAT LD. CIT(A) HAS ADMITTED THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE B UT WE FIND THAT PARA 8.1 HAS NOT DISCUSSED IN DETAIL THE EVIDENCES PRODUCED BY THE ASSESSEE WHILE DELETING THE ADDITION OF RS. 36 LACS MADE BY THE AO. IN OUR CONSIDERED OPINION THE IMPUGNED ORDER IS NOT SPEAKING ITA NO. 2987/ DEL/ 201 3 7 ONE WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE WE CANCEL THE IMPUGNED ORDER AND IN THE INTEREST OF JUSTICE WE ARE SETTING ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH UNDER THE LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASS A SPEAKING ORDER AFTER APPRECIATING I N DETAIL THE EVIDENCES PRODUCED BY THE ASSESSEE. 7 . IN THE RESULT THE APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN C OURT ON 03/11/2014 UPON CONCLUSION OF HEARING. SD/ - SD/ - [ T.S. KAPOOR ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 03 / 11 /201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES