Lal Singh, Gurgaon v. ITO, Gurgaon

ITA 4830/DEL/2009 | 2006-2007
Pronouncement Date: 11-03-2011 | Result: Partly Allowed

Appeal Details

RSA Number 483020114 RSA 2009
Assessee PAN AUJPS9460K
Bench Delhi
Appeal Number ITA 4830/DEL/2009
Duration Of Justice 1 year(s) 2 month(s) 19 day(s)
Appellant Lal Singh, Gurgaon
Respondent ITO, Gurgaon
Appeal Type Income Tax Appeal
Pronouncement Date 11-03-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 11-03-2011
Date Of Final Hearing 04-01-2011
Next Hearing Date 04-01-2011
Assessment Year 2006-2007
Appeal Filed On 23-12-2009
Judgment Text
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 DELHI DELHI DELHI BENCH D BENCH D BENCH D BENCH D : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI C.L.SETHI JM AND SHRI BEFORE SHRI C.L.SETHI JM AND SHRI BEFORE SHRI C.L.SETHI JM AND SHRI BEFORE SHRI C.L.SETHI JM AND SHRI K.G.BANSAL K.G.BANSAL K.G.BANSAL K.G.BANSAL AM AM AM AM ITA NO. ITA NO. ITA NO. ITA NO.483 483 483 4830/DEL/2009 0/DEL/2009 0/DEL/2009 0/DEL/2009 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2006 2006 2006 2006- -- -07 0707 07 SHRI LAL SINGH SHRI LAL SINGH SHRI LAL SINGH SHRI LAL SINGH 995 SECTOR 995 SECTOR 995 SECTOR 995 SECTOR- -- -21 21 21 21 GURGAON GURGAON GURGAON GURGAON HARYANA. HARYANA. HARYANA. HARYANA. PAN NO. PAN NO. PAN NO. PAN NO.AUJPS9460K. AUJPS9460K. AUJPS9460K. AUJPS9460K. VS. VS. VS. VS. INCOME TAX OFF INCOME TAX OFF INCOME TAX OFF INCOME TAX OFFICER ICER ICER ICER WARD WARD WARD WARD- -- -5 5 5 5 GURGAON. GURGAON. GURGAON. GURGAON. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANOJ KUMAR CA. RESPONDENT BY : SHRI K.RAVI RAMACHANDRAN CIT-DR. ORDER ORDER ORDER ORDER PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI J J J JM : M : M : M : THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 12.10.2009 PASSED BY LEARNED CIT(A) IN THE MATTER OF AN ASSESS MENT MADE BY THE AO U/S 143(3) OF THE INCOME-TAX ACT 1961 (THE ACT) FOR THE AY 2006- 07. 2. VIDE GROUND NO.3 THE ASSESSEE HAS TAKEN A GROUN D THAT AO HAS FAILED TO SERVE THE NOTICE REQUIRED U/S 143(2) OF T HE ACT UPON THE ASSESSEE. HENCE THE ASSESSMENT ORDER FRAMED ON TH E BASIS OF SUCH INVALID NOTICE WAS NULL AND VOID AND MAY BE QUASHED . 3. THE ASSESSEE HAS FILED BEFORE US A PAPER BOOK NO .1 CONTAINING 90 PAGES. THE ASSESSEE HAS ALSO FILED AN APPLICATI ON FOR ADDITIONAL EVIDENCE IN THE FORM OF AFFIDAVIT IN SUPPORT OF THE FACT THAT ASSESSEE WAS NOT A TECHNICAL PERSON KNOWING ABOUT THE TAXATI ON LAWS AND HE WAS NOT ADVISED PROPERLY BY THE COUNSEL AT THE LOWE R LEVEL. IN THE PAPER BOOK THE ASSESSEE HAS SUBMITTED HIS SUBMISSI ONS ON ALL POINTS ITA-4830/DEL/2009 2 AT PAGES 1 TO 20. WITH REGARD TO SERVICE OF NOTICE U/S 143(2) UPON THE ASSESSEE THE ASSESSEE HAS STATED IN THE STATEMENT OF FACTS THAT THE AO ISSUED NOTICE U/S 143(2) OF THE ACT ON 19.11.200 7 AT ADDRESS H.NO.110 VILLAGE DUNDAHERA GURGAON FIXING THE CAS E FOR 28.11.2007 THOUGH THE RETURN WAS FILED BY THE ASSESSEE AT H.NO .641 VILLAGE DUNDAHERA GURGAON. ASSESSEE THEREFORE CONTENDED THAT NO NOTICE WAS SERVED UPON THE ASSESSEE U/S 143(2) OF THE ACT. 4. THE ASSESSEE HAD NOT TAKEN THIS GROUND SPECIFICA LLY BEFORE THE LEARNED CIT(A). BEFORE THE CIT(A) THE ASSESSEE HA S TAKEN THE ONLY GROUND THAT ASSESSMENT MADE ON 29.12.2008 WAS PASSE D WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE AN D IN THAT CONNECTION A REMAND REPORT WAS CALLED FOR BY THE CIT(A) FROM T HE AO. THE AO IN THE REMAND REPORT HAS MENTIONED THAT NOTICE U/S 143 (2) WAS ISSUED UPON THE ASSESSEE ON THE ADDRESS GIVEN IN PAN APPLI CATION FORM AND ALSO AVAILABLE IN THE DEPARTMENTAL DATABASE. THE A O FURTHER STATED THAT ASSESSEE HAS NOT INFORMED THE DEPARTMENT ABOUT THE CHANGE OF ADDRESS. IT WAS FURTHER POINTED OUT THAT ASSESSEE HAS IN THE MEANTIME CHANGED HIS ADDRESS FROM H.NO.641 VILLAGE DUNDAHER A GURGAON TO H.NO.995 SECTOR-21 GURGAON. 5. WE HAVE GONE THROUGH THE VARIOUS PAPERS PLACED I N THE PAPER BOOK FILED BY THE ASSESSEE. WE FIND THAT THE NOTIC E U/S 143(2) WAS ISSUED BY THE AO ON 19.11.2007 AT THE FOLLOWING ADD RESS:- SHRI LAL SINGH S/O SHRI RATTAN SINGH C/O ENGINEERS INDIA (P) LIMITED H.NO.110 VILLAGE DUNDAHERA GURGAON. 6. IT IS NOT THE CASE OF THE ASSESSEE THAT THIS NOT ICE U/S 143(2) WAS NOT SENT BY REGISTERED POST. IT IS ALSO NOT THE CA SE OF THE ASSESSEE THAT ITA-4830/DEL/2009 3 THE AFORESAID NOTICE HAS NOT BEEN RECEIVED AT THE A DDRESS GIVEN. ASSESSEE HAS MERELY STATED THAT HE FILED THE RETURN SHOWING THE ADDRESS AT H.NO.641 VILLAGE DUNDAHERA GURGAON TH EREFORE AO SHOULD HAVE ISSUED THE NOTICE AT THAT ADDRESS BUT H E HAS NOWHERE DISPUTED THAT HIS ADDRESS AT H.NO.110 VILLAGE DUND AHERA GURGAON WAS NOT MENTIONED IN THE PAN OR HAS IN THE MEANTIME HIS DETAILS IN THE PAN WERE CHANGED. THE ASSESSEE WAS ALSO HOLDING TH E PAN AT THIS ADDRESS AT WHICH NOTICE U/S 143(2) WAS ISSUED. SIN CE THE ORIGINAL ADDRESS SHOWN BY THE ASSESSEE IN THE PAN DETAILS AN D DATABASE HAS NOT BEEN CHANGED AND SINCE THE ASSESSEE HAS FILED T HE RETURN UNDER THE SAME PAN THE AO WAS DULY JUSTIFIED IN ISSUING THE NOTICE U/S 143(2) AT THAT ADDRESS. IT IS ALTOGETHER DIFFERENT MATTER THAT THE ASSESSEE MAY HAVE OTHER ADDRESSES ALSO SUCH AS DIFFERENT RESID ENCES AT DIFFERENT LOCATIONS BUT THAT DOES NOT MEAN THAT THE ORIGINAL ADDRESS GIVEN IN THE PAN WAS NOT CORRECT ADDRESS UNLESS THE SAME HAS BEE N MODIFIED OR CHANGED BY THE ASSESSEE AFTER DUE INTIMATION TO THE AO IN THE PRESCRIBED PAN DETAILS. IT IS FURTHER FOUND THAT T HE ASSESSEE HAS EVEN CHANGED THE ADDRESS FROM H.NO.641 VILLAGE DUNDAHER A GURGAON TO H.NO.995 SECTOR-21 GURGAON. THE AO ULTIMATELY IS SUED NOTICE U/S 142(1) DATED 15.12.2008 AT H.NO.995 SECTOR-21 GUR GAON AFTER ASCERTAINING THE AVAILABILITY OF THE ASSESSEE AT TH IS ADDRESS. ALL THESE THREE ADDRESSES WERE USED BY THE ASSESSEE FOR HIS D IFFERENT PURPOSES AND THEREFORE THE NOTICE ISSUED BY THE AO AT THE O RIGINAL ADDRESS WHICH HAS NOT BEEN CHANGED CANNOT BE SAID TO BE INV ALID. THE OBJECTION THAT ASSESSEE DID NOT RECEIVE NOTICE U/S 143(2) WAS NEVER RAISED BY THE ASSESSEE BEFORE THE AO WHEN HE APPEAR ED BEFORE THE AO IN RESPONSE TO THE NOTICE U/S 142(1) DATED 15.12.20 08. THIS GROUND WAS ALSO NOT TAKEN BEFORE THE LEARNED CIT(A) IMPLYI NG THEREBY THAT THE ASSESSEE HAS TAKEN THIS GROUND BEFORE US AFTER GIVI NG A SECOND THOUGHT TAKING THE BENEFIT OF THE SITUATION WHERE HE HAS BE EN USING THE THREE DIFFERENT ADDRESSES NAMELY H.NO.110 VILLAGE DUND AHERA GURGAON ITA-4830/DEL/2009 4 H.NO.641 VILLAGE DUNDAHERA GURGAON AND H.NO.995 SECTOR-21 GURGAON. WE THEREFORE REJECT THIS GROUND RAISED BY THE ASSESSEE. WE FURTHER OBSERVE THAT THE VARIOUS DECISIONS CITED BY THE ASSESSEE BEFORE US ARE OF NO HELP TO THE ASSESSEE BEING DISTINGUISH ABLE ON FACTS AS IN THIS CASE THE AO HAS ISSUED THE NOTICE U/S 143(2) A T THE ADDRESS GIVEN IN THE PAN DETAILS REMAINING UNCHANGED AT THE TIME WHEN THE NOTICE WAS ISSUED U/S 143(2) OF THE ACT. 7. NEXT GROUND TAKEN BY THE ASSESSEE BEFORE US IS A GAINST THE CIT(A)S ORDER IN CONFIRMING THE ADDITION OF `30 17 000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. 8. AN ADDITION OF `30 17 000/- WAS MADE BY THE AO O N ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE ASSESSEES BANK ACC OUNT DURING THE YEAR UNDER CONSIDERATION. THE TOTAL DEPOSIT MADE B Y THE ASSESSEE WAS OF `62 92 000/- IN THE CORPORATION BANK MEENAKSHI PUBLIC SCHOOL BRANCH GURGAON. THE AO HAS GIVEN THE BENEFIT OF ` 32 75 000/- BEING THE CASH WITHDRAWAL FROM THE SAID BANK ACCOUNT DURI NG THE SAME PERIOD UNDER CONSIDERATION AND THE DIFFERENCE OF `3 0 17 000/- WAS TREATED TO BE UNEXPLAINED. THE ASSESSEE SUBMITTED BEFORE THE AO THAT HE HAD WITHDRAWN A SUM OF `11 LAKHS FROM VIJAYA BAN K DURING THE FY 2002-03 AND RECEIVED FURTHER SUM OF `15 17 000/- FR OM HIS FATHER AFTER HIS DEATH AS HIS SHARE. BEFORE THE CIT(A) THE ASS ESSEE ALSO SUBMITTED THAT ASSESSEE HAD ALSO RECEIVED THE SUM OF `30 LAKH S BEING ADVANCE FOR SALE OF HIS AGRICULTURAL LAND AND THAT MONEY WA S ALSO AVAILABLE WITH THE ASSESSEE TO COVER CASH DEPOSIT MADE IN THE ASSE SSEES BANK ACCOUNT. THE ASSESSEE ALSO CLAIMED THAT HE HAD SUM OF `4 LAKHS AS CASH IN HAND AT THE BEGINNING OF THE YEAR. 9. THE ASSESSEE EXPLAINED BEFORE THE CIT(A) THE SOU RCE OF CASH DEPOSIT IN THE BANK ACCOUNT AS UNDER:- ITA-4830/DEL/2009 5 TOTAL CASH DEPOSIT IN CORPORATION BANK DURING THE Y EAR 62 92 000.00 LESS : CASH WITHDRAWAL FROM CORP.BANK DURING THE YE AR AS ALSO ACCEPTED BY THE LD.AO. 32 75 000.00 NET BALANCE ADDED BY THE LD.AO. 30 17 000.00 LESS : CASH WITHDRAWAL OF RS.11 00 000/- FROM VIJAY A BANK DURING 2002-03 LYING WITH THE APPELLANT AND DEPOSITED IN CORP.BANK DURING 2005-06. SOURCE OF T HIS FUND IN BANK IS RETIREMENT FUND FROM EIL LTD. THIS WAS NOT ACCEPTED BY LD.AO. 11 00 000.00 LESS : CASH DEPOSITED OUT OF FUNDS RECEIVED - FROM FATHER AT THE TIME OF HIS DEATH RS.15 17 000 .00 - FUND RECEIVED FROM SALE OF PROP. TO SHUBRA SECURITIES RS.30 00 000.00 - FUNDS AVAILABLE IN THE BEGINNING RS.4 00 000.00 19 17 000.00 TOTAL BALANCE NIL _____________ 10. THIS EXPLANATION OF THE ASSESSEE HAS NOT BEEN C ONSIDERED BY THE LEARNED CIT(A) BY OBSERVING AND HOLDING AS UNDER:- 7.1 ON CAREFUL CONSIDERATION I DO NOT FIND ANY FOR CE IN THE ARGUMENTS OF THE COUNSEL FOR THE APPELLANT. THE AP PELLANT HAS NOT BEEN ABLE TO PROVE THE SOURCE OF DEPOSIT OF RS.30 17 000/- IN THE BANK ACCOUNT. DURING ASSESSM ENT PROCEEDINGS THE APPELLANT STATED THAT AN AMOUNT OF RS.11 LACS WAS WITHDRAWN FROM SAVING BANK A/C NO.463 WITH THE VIJAYA BANK BIKAJI CAMA PLACE NEW DELHI IN THE YE AR 2002-03 AND RS.15 17 000/- WAS CASH RECEIVED FROM H IS FATHER AFTER HIS DEATH AGAINST HIS SHARE. NO EVIDE NCE WAS FILED IN SUPPORT OF THE CONTENTIONS. HOWEVER DURI NG APPELLATE PROCEEDINGS THE APPELLANT HAS TOTALLY CHA NGED HIS STAND AND STATED THAT RS.30 LACS WERE RECEIVED FROM M/S SHUBRA SECURITIES AS ADVANCE AGAINST PROPERTY W HICH IS 4 ACRES LAND NEAR GURGAON. INTERESTINGLY SHRI MAHE SH KAUSHIK WHO IS THE COUNSEL OF THE APPELLANT IS THE PROPRIETOR OF M/S SHUBRA SECURITIES FROM WHOM THE A MOUNT ITA-4830/DEL/2009 6 OF RS.30 LACS IS CLAIMED TO HAVE BEEN RECEIVED. FR OM THE CASH FLOW STATEMENT IT IS CLEAR THAT THERE IS NO MA TCHING BETWEEN THE WITHDRAWALS FROM M/S SHUBRA SECURITIES AND DEPOSITS MADE BY THE APPELLANT IN HIS BANK ACCOUNT. THE AO IS CORRECT IN STATING THAT THE ADDITIONAL EVIDEN CE WAS NEVER PRODUCED BEFORE THE AO AND THE FRESH EVIDENCE IS A CONCOCTED STORY MADE BY THE ASSESSEE WITH HIS CONSU LTANT. THE FRESH EVIDENCE IS REJECTED. THE APPELLANT HAS FAILED TO PROVE THE SOURCE OF DEPOSITS OF RS.30 17 000/- IN H IS BANK ACCOUNT. THE AO HAS RIGHTLY MADE ADDITION TO THE R ETURNED INCOME. THIS GROUND OF APPEAL IS REJECTED. 11. ON PERUSAL OF THIS OBSERVATION OF CIT(A) WE FI ND THAT CIT(A) HAS NOT TAKEN INTO ACCOUNT THE ASSESSEES CLAIM THAT HE RECEIVED THE SUM OF `30 LAKHS FROM M/S SHUBRA SECURITIES. HE HAS AL SO REJECTED THIS STORY BY OBSERVING THAT ADDITIONAL EVIDENCES WERE NEVER P RODUCED BEFORE THE AO AND FRESH EVIDENCE FILED BEFORE HIM WAS A CO NCOCTED STORY MADE BY THE ASSESSEE WITH HIS CONSULTANT. THE CIT( A) THEREFORE REJECTED THE FRESH EVIDENCE. 12. IN THIS CASE THE ASSESSEE IS AN INDIVIDUAL. H E WAS WORKING AT THE POST OF DRIVER IN ENGINEERS INDIA LTD. AFTER RETIRE MENT FROM ARMY BECAUSE OF BOMB EXPLOSION IN HIS HAND. HE ULTIMATE LY STARTED THE BUSINESS OF SUPPLYING THE LABOUR FOR CONSTRUCTION I N AND AROUND GURGAON. IT IS THEREFORE FOUND THAT THE ASSESSEE S BACKGROUND WAS NOT SUCH SO AS TO BE WELL AWARE OF THE IMPLICATIONS OF THE ACCOUNTS. CONSIDERING THE BACKGROUND OF THE ASSESSEE AND THE SURROUNDING FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE OPINIO N THAT CIT(A) SHOULD HAVE TAKEN INTO ACCOUNT THE VARIOUS EXPLANATIONS SU BMITTED BY THE ASSESSEE ALONGWITH FRESH EVIDENCE FILED BY THE ASSE SSEE BEFORE HIM. WE THEREFORE RESTORE THIS ISSUE ABOUT THE ADDITIO N OF `30 17 000/- TO THE FILE OF THE CIT(A) FOR HIS FRESH ADJUDICATION A FTER CONSIDERING ALL THE EXPLANATIONS OF THE ASSESSEE AND THE EVIDENCE THAT MAY BE PRODUCED BY THE ASSESSEE BEFORE HIM. THE CIT(A) SHALL PROVI DE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS TO THE AO. THE ITA-4830/DEL/2009 7 CIT(A) SHALL GIVE PROPER OPPORTUNITY TO THE AO TO H AVE HIS COMMENTS ON THE VARIOUS EXPLANATIONS AND EVIDENCES THAT MAY BE FILED FRESHLY BEFORE THE CIT(A). THE CIT(A) MAY MAKE SUCH ENQUIR Y AS HE THINKS FIT AND PROPER AS PER LAW. THE MATTER SHALL REMAIN WID E OPEN BEFORE CIT(A) FOR HIS CONSIDERATION AND ADJUDICATION AS PE R LAW IN THE LIGHT OF FACTS AND CIRCUMSTANCES OF THE CASE. WE ORDER ACCO RDINGLY. 13. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE PARTLY ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH 2011. SD/- SD/- (K.G.BANSAL (K.G.BANSAL (K.G.BANSAL (K.G.BANSAL) )) ) (C.L.SETHI (C.L.SETHI (C.L.SETHI (C.L.SETHI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 11.03.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR ITA-4830/DEL/2009 8