Nishit Chopra,, v. DCIT, Central Circle-20,,

ITSSA 89/DEL/2003 | misc
Pronouncement Date: 28-11-2014 | Result: Allowed

Appeal Details

RSA Number 8920116 RSA 2003
Bench Delhi
Appeal Number ITSSA 89/DEL/2003
Duration Of Justice 11 year(s) 8 month(s)
Appellant Nishit Chopra,,
Respondent DCIT, Central Circle-20,,
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 28-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 28-11-2014
Date Of Final Hearing 11-11-2014
Next Hearing Date 11-11-2014
Assessment Year misc
Appeal Filed On 28-03-2003
Judgment Text
IT (SS)A. NO. 89 & 140/DEL/2003 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI T.S. KAPOOR ACCOUNTANT MEMBER I.T. (SS) A. N O. 89 /DEL/200 3 B.P.: 1.4. 89 TO 14 .7. 1999 SMT. POONA M CHOPRA LEGAL HEIR OF LATE MR. NISHIT CHOPRA C/O RAKESH RAJ ASSOCIATES C - 8 EAST OF KAILASH NEW DELHI VS. DCIT CENTRAL CIRCLE - 20 NEW DELHI (APPELLANT) (RESPONDENT) AND IT(SS)A. NO. 14 0 /DEL/200 3 B.P.: 1.4. 89 TO 14 .7. 1999 DCIT CENTRAL CIRCLE - 20 MAYUR BHAVAN CONNAUGHT PLACE NEW DELHI VS. SMT. POONA M CHOPRA LEGAL HEIR OF LATE MR. NISHIT CHOPRA A - 97 VISHAL ENCLAVE NEW DELHI ASSESSEE BY : SH. K. SAMPATH CA DEPARTMENT BY : MS. SHULEKHA VERMA CIT(DR) DATE OF HEARING : 1 9 . 11 .2014 DATE OF ORDER : 28 . 11 .2014 ORDER PER H.S. SIDHU : J M TH ESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE EMANATE OUT OF ORDER DATED 29.11.2002 PASSED BY THE LD. CIT(A) - II NEW DELHI PERTAINING TO BLOCK PERIOD 1.4.19 89 TO 14 .7. 1999 . IT (SS)A. NO. 89 & 140/DEL/2003 2 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES THEREFORE NEED NOT BE REPEATED HERE FOR THE SAKE OF BRE VITY. ASSESSEE S APPEAL - IT(SS)A NO. 89/DEL/2003 (BP : 1.4.89 TO 14.7.99) 3. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESSEE STATED THAT ON 20.6.2006 LD. COUNSEL OF THE ASSESSEE FILED THE AFFIDAVIT BRINGING THE LEGAL HEIRS OF THE ASSESSEE ON RECORD. LD. DR HAS NOT RAISED ANY OBJECTION FOR BRINING ON RECORD THE LEGAL HEIR OF THE ASSESSEE AND THE BENCH VIDE ORDER DATED 26.6.2006 BROUGHT THE LEGAL HEIR OF THE ASSESEE ON RECORD AND ADJOURN THE HEARING OF THE APPEAL TO 27.7.2006 IN THE PRESENCE OF BOTH THE PARTIES. HE FURTHER SUBMITTED THAT ON 20.9.2006 ASSESSEE S COUNSEL FILED AN APPLICATION FOR ADDITIONAL EVIDENCE WITH ADVANCE COPY TO LD. DR IN WHICH THE ASSESSEE HAS ENCLOSED CASH FLOW STATEMENT OF MR. NISHIT CHOPRA FOR THE BLOCK PERIOD 1.4.1989 TO 14.7.1999 CONTAINING TWO PAGES. HE STATE D THAT TILL DATE ON THE APPLICATION FOR ADDITIONAL EVIDENCE NO ORDER HAS BEEN PASSED BY THIS BENCH. HE REQUESTED THAT THE CASH FLOW STATEMENT OF SH. NISHIT CHOPRA FOR THE BLOCK PERIOD 1.4.1989 TO 14.7.1999 IS VERY MUCH RELEVANT FOR THE DECISION ON ADDITIONS IN DISPUTE AND REQUESTED THAT THE ADDITIONAL EVIDENCES MAY BE ADMITTED AND THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE IN DISPUTE AFRESH UNDER THE LAW AFTER APPRECIATING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. 3.1 LD. COUNSEL OF THE ASSESSEE FURTHER DRAW OUR ATTENTION TOWARDS PARA 23 AT PAGES 14 & 15 OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND STATED THAT ASSESSEE HAS FILED THESE ADDITIONAL EVIDENCES BEFORE THE FIRST APPELLATE AUTHORITY WHO HAS WRONGLY REJECTED THE REQ UEST OF THE ASSESSEE BY NOT ADMITTING THE SAME WHICH IS CONTRARY IT (SS)A. NO. 89 & 140/DEL/2003 3 TO THE PRINCIPLE OF NATURAL JUSTICE. HE HAS NOT ARGUED THE CASE ON MERIT AND ONLY REQUESTED THAT IF THIS BENCH INCLINED TO ADMIT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE THEN THE ISSU ES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO TO EXAMINE THE ISSUES IN DISPUTE UNDER THE LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD . TO SUPPORT HIS CONTENTION HE CITED THE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF CIT - IV VS. TEXT H UNDRED INDIA (P) LTD. [2011] 197 TAXMAN 128 (DELHI) AND FILED THE COPY THEREOF BEFORE THE BENCH DURING THE HEARING. 4. ON THE OTHER HAND LD. DR OPPOSED THE REQUEST OF THE ASSESSEE S COUNSEL AND RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE A UTHORITY. LD. DR STATED THAT THE APPEAL IS VERY OLD AND THE REQUEST OF THE ASSESSEE S COUNSEL IS NOT GENUINE THEREFORE THE ISSUES IN DISPUTES MAY BE DECIDED BY THIS BENCH AND MAY NOT BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. TO SUPPORT HER CON TENTION SHE CITED THE JUDGMENT OF THE ITAT DELHI (SPECIAL BENCH) IN THE CASE OF PROMAIN LTD. VS. DCIT 95 ITD 489; ORDER OF THE HON BLE DELHI HIGH COURT IN THE CASE OF MB LAL 279 ITR 298 (DELHI); COPY OF HON BLE ALLAHABAD HIGH COURT IN THE CASE OF DR. AK BANSAL 355 ITR 513 AND COPY OF PANCHNAMA DATED 14.7.1999 AND FILED THE COPY THEREOF BEFORE THE BENCH DURING HEARING. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US ESPECIALLY PROCEEDINGS DATED 20.6.2006 AND 2 0.9.2006 WHEREIN THIS BENCH HAS BROUGHT THE LEGAL HEIRS OF THE ASSESSEE NAMELY SMT. POONAM CHOPRA WIFE OF THE ASSESSEE FOR WHICH THE LD. DR HAS NOT RAISED ANY OBJECTION. IMMEDIATELY THE ASSESSEE S COUNSEL FILED AN APPLICATION FOR ADMISSION OF ADDITION AL EVIDENCE I.E. CASH FLOW STATEMENT OF NISHIT CHOPRA FOR THE BLOCK PERIOD 1.4.19899 TO 14.7.1999 WHICH IS STILL PENDING FOR DECISION OF THE BENCH. WE HAVE HEARD BOTH THE PARTIES ONLY ON THE ISSUE OF IT (SS)A. NO. 89 & 140/DEL/2003 4 ADMISSION OF ADDITIONAL EVIDENCE. WE ARE OF THE CON SIDERED VIEW THAT ASSESSEE HAS FILED THIS ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) AND THE SAME HAS BEEN REJECTED IN THE IMPUGNED ORDER BY THE LD. CIT(A). F OR THE SAKE OF CONVENIENCE RE LEVANT PARA ON THE NON - ADMISSION OF THE ADDITIONAL EVIDENCE I.E. PARA 23 PAGE. 14 & 15 OF THE IMPUGNED ORDER IS REPRODUCED BELOW. 23. THE LD. AR HAS REITERATED THAT THE EXPENDITURE WAS MADE OUT OF THE CASH AVAILABLE AS PER THE CASH FLOW STATEMENT. IT IS SUBMITTED THAT A SUM OF RS.43592 / - INCURRED BY MRS.POONAM CHOPRA CANNOT BE ADDED. IT IS NECESSARY TO EXAMINE THE ARGUMENT OF THE APPELLANT REGARDING HIS CASH FLOW STATEMENT AT THIS STAGE AS THIS HAS BEEN RELIED UPON BY THE APPELLANT AN VARIOUS PLACES IN THIS APPEAL. THE ASSESSMENT ORDER VER Y CLEARLY INDICATE THAT A NUMBER OF OPPORTUNITIES WERE PROVIDED TO THE APPELLANT TO FILE THE CASH FLOW STATEMENT AS EVIDENCED FROM THE BOOKS OF ACCOUNTS. THE APPELLANT FAILED TO DO THAT. HOWEVER THE CASH FLOW STATEMENT HAS BEEN PRODUCED BEFORE ME AT PAGE - IA AND 1B OF PAPER BOOK OF PART - I. IT IS APPARENT THAT THE APPELLANT HAS NO JUSTIFIABLE REASON AS TO WHY IT COULD NOT BE PRODUCED BEFORE THE AD AND THEREFORE THIS STATEMENT CANNOT BE ADMITTED AT THIS STAGE OF HEARING. SECONDLY EVEN ON MERITS THE APPELLANT HAS NOT CERTIFIED THAT ALL THE RECEIPTS AND OUTGOING OF CASH AS SHOWN IN THE STATEMENT WERE AS PER THE BOOKS OF ACCOUNTS FOUND AS ON THE DATE OF SEARCH. THE APPELLANT HAS TO EXPLAIN ALL THE FACTS WITH REFERENCE TO THE BOOKS OF ACCOUNTS AVAILABLE' ON THE IT (SS)A. NO. 89 & 140/DEL/2003 5 D ATE OF SEARCH AND NOT PREPARED THEREAFTER. THIRDLY THERE ARE HUGE AMOUNTS SHOWN TO HAVE BEEN RECEIVED FROM 'FAMILY POOL' BETWEEN 1 - 4 - 91 TO 31 - 3 - 96. THIS AGGREGATE TO ABOUT RS.29 20 0000/ - . ALL THESE AMOUNTS HAVE BEEN RETURNED BACK DURING FY.97 - 98. THUS FO R THE BLOCK PERIOD ALL THESE' ENTRIES HAVE BEEN SQUARED UP. THERE ARE NO CONFIRMATIONS OF THESE ENTRIES. THERE IS NO EVIDENCE AVAILABLE THAT THESE HAVE BEEN TAKEN OUT OF THE BOOKS OF ACCOUNTS FOUND ON THE DATE OF SEARCH. BESIDES THERE ARE OTHER AMOUNTS IN LAKHS SHOWN TO HAVE BEEN ADVANCED AND RECEIVED BACK FROM SOME PERSONS. LASTLY THIS REQUIRES EXAMINATION OF FACTS AND HELD BY THE APEX COU RT WHERE THE ADDITIONAL EVIDENCE PRODUCED NECESSITATES INVESTIGATION OF FRESH FACTS IT MAY NOT BE ADMITTED. ON THESE CIRCUMSTANCES THE CASH FLOW STATEMENT PREPARED BY THE APPELLANT CANNOT BE ACCEPTED AND CANNOT BE RELIED UPON TO EXPLAIN VARIOUS RECEIPT OR EXPENDITURE IN CASH. THE ARGUMENT THAT HALF OF THIS SHOULD BE ASSESSED IN THE CASE OF THE APPELLANT S WIFE ALSO CANNOT BE ACCEPTED AS SHE HAS NO INDEPENDENT SOURCE OF INCOME. THIS IS SUPPORTED BY THE CASE LAW CITED UNDER GROUND NO. 1. FOR THE FY 1998 - 99 THERE ARE NO WITHDRAWALS SHOWN. ON A CAREFUL CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSTT. OF RS. 87 184/ - AS UNDISCLOSED INCOME FOR A.Y. 1999 - 2000 IS UPHELD. 6. WE HAVE THOROUGHLY GONE THROUGH THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY WHEREBY THE LD. CIT(A) HAS REJECTED THE REQUEST IT (SS)A. NO. 89 & 140/DEL/2003 6 OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDE NCE. WE HAVE PERUSED THE CASH FLOW STATEMENT OF MR. NISHIT CHOPRA FOR THE BLOCK PERIOD 1.4.1989 TO 14.7.1999 AS WELL THE ADDITIONS IN DI S PUTE AND WE ARE OF THE CONSIDERED VIEW THAT INJUSTICE HAS BEEN DONE WITH THE ASSESSEE BY THE LD. FIRST APPELLATE AUTHORITY BY NOT ADMITTING THE ADDITIONAL EVIDENCE IN DISPUTE. BECAUSE SH. NISHIT CHOPRA HAS EXPIRED DUE TO ILL HEALTH ON 08.10.2005 LEAVING BEHIND HIS LEGAL HEIRS SMT. POONAM CHOPRA WIFE AND HIS DAUGHTER KUMARI NATASHA (MINOR) AGED ABOUT 14 YEARS. AS PE R THE APPLICATION DATED 20.6.2006 FILED BY THE AUTHORISED REPRESENTATIVE FOR SUBSTITUTION OF LEGAL HEIRS ALONGWITH AFFIDAVIT OF SMT. POONAM CHOPRA WIFE OF LATE SH. NISHIT CHOPRA ALONGWITH DEATH CERTIFICATE OF HER HUSBAND SH. NISHIT CHOPRA. AFTER THE DEA TH OF HER HUSBAND (ASSESSEE) SMT. POONAM CHOPRA HERSELF CAME FORWARD AND JOIN THE INCOME TAX PROCEEDINGS AND TAKE THE RESPONSIBILITY OF INCOME TAX PROCEEDINGS FOR WHICH WE HAVE TO APPRECIATE THE ACTION OF THE ASSESSEE S WIFE. SHE MAY NOT BE HAVING KNOWL EDGE OF ANY DOCUMENTARY EVIDENCE WHICH ARE RELEVANT FOR ADJUDICATION OF THE ISSUE IN DISPUTES AND FILED THE APPLICATION DATED 20.9.2006 FOR ADMISSION OF ADDITIONAL EVIDENCE I.E. CASH FLOW STATEMENT MENTIONED ABOVE. IN OUR CONSIDERED OPINION LD. CIT(A ) SHOULD HAVE ADMITTED THE SAME BECAUSE THIS CASH FLOW STATEMENT IS VERY MUCH RELEVANT TO DECIDE THE ISSUE IN DISPUTE. THEREFORE IN THE INTEREST OF JUSTICE WE ARE ADMITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE S COUNSEL IN THE SHAPE OF CASH FLOW STATEMENT OF MR. NISHIT CHOPRA FOR THE BLOCK PERIOD 1.4.1989 TO 14.7.1999 AND REMITTING THE ISSUES IN DISPUTE BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH AFTER THOROUGHLY EXAMINING THE ADDITIONAL EVIDENCE FILED BY THE A SSESSEE AND DECIDE THE ISSUE AFRESH UNDER THE LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. ACCORDINGLY THE IMPUGNED ORDER DATED IT (SS)A. NO. 89 & 140/DEL/2003 7 29.11.2002 PASSED BY THE LD. CIT(A) STANDS CANCELLED AND ASSESSEE S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. REVENUE S APPEAL - IT(SS)A NO. 140 /DEL/2003 (BP : 1.4.89 TO 14.7.99) 7 . SINCE WE HAVE ALREADY CANCELLED THE IMPUGNED ORDER DATED 29.11.2002 AND ALSO SET ASIDE THE ADDITIONS/ISSUES IN DISPUTE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH THE REVENUE S APPEAL HAS BECOME INFRUCTUOUS AND HENCE DISMISSED AS SUCH. 8 . IN THE RESULT THE ASSESSEE S APPEAL BEING IT(SS)A NO. 89 /DEL/200 3 IS ALLOWED FOR STATISTICAL PURPOSES AND REVENUE S APPEAL BEING IT(SS)A NO. 1 4 0 /DEL /20 03 IS DISMISSED BEING INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT 28 - 11 - 2014. SD/ - SD/ - [ T.S. KAPOOR ] [ H.S. SIDHU ] ACCOUTANT MEMBER JUDICIAL MEMBER DATE : 28 / 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