Saurabh Singla , Delhi v. ITO, Ward- 36(4), New Delhi

ITA 3815/DEL/2018 | 2014-2015
Pronouncement Date: 31-08-2021 | Result: Partly Allowed

Appeal Details

RSA Number 381520114 RSA 2018
Assessee PAN AMOPS7206A
Bench Delhi
Appeal Number ITA 3815/DEL/2018
Duration Of Justice 3 year(s) 3 month(s) 8 day(s)
Appellant Saurabh Singla , Delhi
Respondent ITO, Ward- 36(4), New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2021
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 31-08-2021
Assessment Year 2014-2015
Appeal Filed On 22-05-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI B BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT JUDICIAL MEMBER & DR.B.R.R.KUMAR ACCOUNTANT MEMBER ITA NO.3815/DEL/2018 ASSESSMENT YEAR : 2014-15 SAURABH SINGLA K-2 SECOND FLOOR MODEL TOWN-II NEW DELHI-110009. PAN-AMOPS7206A VS ITO WARD-36(4) NEW DELHI. APPELLANT RESPONDENT APPELLANT BY SH. SURESH K.GUPTA CA RESPONDENT BY MS. ALKA GAUTAM SR.DR DATE OF HEARING 26.08.2021 DATE OF PRONOUNCEMENT 31 .08.2021 ORDER PER KUL BHARAT JM : THIS APPEAL FILED BY THE ASSESSEE PERTAINING TO ASS ESSMENT YEAR 2014-15 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-12 NEW DELHI DATED 07.02.2018. THE ASSESSEE HAS RAISED FOLLOWING SOLITARY GROUNDS OF APPEAL:- 1. THE LD.CIT(A) HAS ERRED BOTH ON FACTS AND IN LA W IN UPHOLDING THE ORDER OF LD.AO HOLDING THE FACT THAT LD.AO HAS PASS ED THE ORDER WITHOUT PROVIDING REASONABLE OPPORTUNITY TO THE APP ELLANT. 2. THE LD.CIT(A) HAS ERRED BOTH IN FACTS AND CIRCUM STANCES OF THE CASE IN NOT ADMITTING THE APPEAL ON THE GROUND THAT THE SAME WAS BELATED BY 57 DAYS IGNORING THE EXPLANATION GIVEN BY THE AP PELLANT TO SUPPORT THE DELAY IN FILLING APPEAL IF THE DATE OF POSTAL SERVICE IS TREATED AS THE DATE OF SERVICE. 3. THE LD. CIT(A) HAS ERRED BOTH IN FACTS AND CIRCU MSTANCES OF THE CASE IN NOT ADMITTING THE ADDITIONAL EVIDENCES UNDER RUL E 46A OF IT RULES ITA NO.3815/DEL/2018 ASSESSMENT YEAR : 2014-15 2 | P A GE 1962 IGNORING THE FACT THAT THE APPELLANT WAS PREVE NTED BY SUFFICIENT REASON FROM PRODUCING THE RELEVANT EVIDENCES BEFORE THE AO DURING ASSESSMENT PROCEEDINGS. 4. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FACT S IN CIRCUMSTANCES OF THE CASE IN UPHOLDING THE ADDITION OF RS 23 27 375/ - U/S 68 OF THE IT ACT R.W.S 115BBE OF IT ACT BY DISALLOWING THE CLAIM OF EXEMPTION U/S 10(38) OF THE LTCG EARNED ON THE SALE OF SHARES OF A LISTED COMPANY DISREGARDING THE FACT THAT ALL THE EVIDENCE S TO SUPPORT THE CLAIM WERE BROUGHT ON RECORD BY THE APPELLANT AND T HEREFORE ACTION OF THE AO IS BASED ON CONJECTURES AND SURMISES. 5. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITI ON OF RS.23 27 375/- WHICH IS BAD IN LAW AS THE SAME HAS BEEN MADE WITHO UT THE APPELLANT BEING PROVIDED WITH THE INCRIMINATING MAT ERIAL AND CROSS EXAMINATION OF THE MATERIAL AND STATEMENTS ON THE B ASIS OF WHICH THE INVESTMENT OF THE APPELLANT IS CHARACTERIZED AS PENNY STOCK. 6. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITI ON OF RS.23 27 375/- BY SIMPLY REPLYING ON THE REPORTS/ INFORMATION WHIC H ARE CONTRARY TO THE EVIDENCE SUBMITTED BY THE APPELLANT IN SUPPORT OF THE TRANSACTION OF THE PURCHASE/SALE OF SHARES. 7. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FACT S IN CIRCUMSTANCES OF THE CASE IN UPHOLDING THE ADDITION OF RS.23 27 375/ - BY RELYING ON THE PERCEPTION BASED ON THE GENERALISED MATERIAL WI THOUT APPLYING THE SAME ON THE APPELLANT WITH THE CORROBORATIVE FA CTS AND IN THE ABSENCE OF WHICH THE ORDER UNDER APPEAL IS NOT IN C ONFORMITY WITH PRINCIPLE OF NATURAL JUSTICE. 8. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FACT S IN CIRCUMSTANCES OF THE CASE IN UPHOLDING THE ADDITION OF RS.23 27 375/ - BY RELYING ON THE STATEMENT OF SH. SUNIL DOKANIA WITHOUT PROVIDIN G OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE SUCH PERSON AND THE STATEMENT DOES ITA NO.3815/DEL/2018 ASSESSMENT YEAR : 2014-15 3 | P A GE NOT NAME THE APPELLANT AS THE BENEFICIARY OF ACCOMM ODATION ENTRIES AND THEREFORE SUCH STATEMENT HAVE NO EVIDENTIARY VA LUE. 9. THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN TH E CIRCUMSTANCES OF THE CASE IN UPHOLDING THE DEEMED ADDITION OF COMMIS SION PAID AT THE RATE OF 2.5 PERCENT AMOUNTING TO RS.58 184/- U/S 6 9C OF THE IT ACT R.W.S 115BBE OF THE IT ACT TO BROKER ON ACCOMMODATI ON ENTRY AMOUNTING TO RS.23 27 375/- WITHOUT ANY EVIDENCE OF PAYMENT OF SUCH COMMISSION AND SUBSTANTIATING ANY MATERIAL AVA ILABLE ON RECORD TO PROVE THE ABOVE ADDITION. 10. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FAC TS OF THE CASE IN UPHOLDING THE ADDITION OF RS.17 01 000/- OF CASH DE POSIT MADE IN BANK ACCOUNT AS UNEXPLAINED DEPOSITS IGNORING THE D ETAILS FURNISHED AND EXPLANATION GIVEN BY THE APPELLANT. 11. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FAC TS OF THE CASE IN UPHOLDING THE ADDITION OF RS.65 98 934/- OF CREDIT ENTRIES IN BANK ACCOUNTS EXCLUDING CASH DEPOSITS AS UNEXPLAINED CRE DITS IGNORING THE DETAILS FURNISHED AND EXPLANATION GIVEN BY THE APPELLANT. 12. THE APPELLANT CRAVES LEAVE TO ADD DELETE MODI FY / AMEND THE ABOVE GROUNDS OF APPEAL WITH THE PERMISSION OF THE HON'BL E APPELLATE AUTHORITY. 2. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT LD.CIT(A) HAD DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND OF LIMITATION. IT WAS SUBMITTED THAT THE ASSESSEE FILED EVIDENCES BEFORE LD.CIT(A) REGARDING HIS ILLNESS. LD. COUNSEL FOR THE ASSESSEE ALSO SUBMIT TED THAT AN AFFIDAVIT IN SUPPORT OF NON-RECEIPT OF NOTICE WAS FILED BUT LD.C IT(A) REJECTED THE APPEAL WITHOUT ADJUDICATING THE ISSUES ON MERIT. LD. COUN SEL FOR THE ASSESSEE ITA NO.3815/DEL/2018 ASSESSMENT YEAR : 2014-15 4 | P A GE SUBMITTED THAT PRESCRIPTION BY THE DOCTORS WAS FILE D BEFORE LD.CIT(A) BUT LD.CIT(A) DID NOT CONSIDER THE SAME. 3. ON THE CONTRARY LD. SR. DR OPPOSED THESE SUBMIS SIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. CONSIDERING THE FACT THAT LD.CIT(A) HA D REJECTED THE APPEAL OF THE ASSESSEE ON THE GROUND OF DELAY IN FILING OF THE AP PEAL. UNDISPUTEDLY THE ASSESSEE HAD NOT FILED ANY APPLICATION SEEKING COND ONATION OF DELAY BEFORE LD.CIT(A). THE CONTENTION BEFORE LD.CIT(A) WAS TWO FOLDS- FIRSTLY THAT THE NOTICE WAS NOT RECEIVED BY THE ASSESSEE. WE FIND T HAT LD. CIT(A) ON THIS ISSUE HAS RECORDED THE FINDING ON FACT THAT AS PER INDIAN POST TRACKING RECORD THE NOTICE WAS DELIVERED TO THE ASSESSEE ON 02.01.2017 . THEREFORE OBJECTION OF THE ASSESSEE WAS DULY ADDRESSED BY LD.CIT(A). SECONDLY THE ASSESSEE HAD STATED THAT DUE TO ILL HEALTH HE COULD NOT FILE TH E APPEAL. IN SUPPORT OF THAT HE HAD FILED CERTAIN PRESCRIPTIONS DATED 15.10.2016 1 8.10.2016 17.04.2017 & 19.08.2017 WHICH DEMONSTRATED THAT THE ASSESSEE WAS UNDER MEDICAL TREATMENT. THEREFORE WE ARE OF THE CONSIDERED VIE W THAT LOOKING TO THE DELAY IN FILING THE APPEAL BEFORE LD.CIT(A) COUPLED WITH TH E FACT THAT THE ASSESSEE WAS UNDERGOING MEDICAL TREATMENT. WE FIND THAT LD.CIT( A) OUGHT TO HAVE GIVEN OPPORTUNITY FOR FILING APPLICATION SEEKING CONDONAT ION OF DELAY AND AFTER FILING OF SUCH APPLICATION LD.CIT(A) SHOULD HAVE CONSIDERED IT SYMPATHETICALLY. THEREFORE WE SET ASIDE THE IMPUGNED ORDER AND REST ORE THE APPEAL TO THE FILE OF ITA NO.3815/DEL/2018 ASSESSMENT YEAR : 2014-15 5 | P A GE LD. CIT(A) TO DECIDE IT AFRESH AFTER GIVING OPPORTU NITY TO THE ASSESSEE FOR FILING APPLICATION FOR CONDONATION OF DELAY WHICH OCCURRED IN FILING OF THE APPEAL BEFORE HIM. THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES ONLY. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRT UAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 31 ST AUGUST 2021. SD/- SD/- (DR. B.R.R.KUMAR) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIA L MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI