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Income Tax Appellate Tribunal, DELHI BENCH: ‘F’: NEW DELHI
Before: SHRI H.S. SIDHU & SHRI ANADEE NATH MISSHRA
(A) This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-17, New Delhi, [“Ld. CIT(A)”, for short], dated 27.10.2016 for Assessment Year 2012-13. The grounds of appeal are as under:
That the order of the Ld. Commissioner of appeals and the ld. ITO are bad at law and on facts of the case.
That proper opportunity was not granted to the assessee for presenting the proper facts of the case thus violating the principles of natural Justice. 3. That the additions made by the Ld. ITO and confirmed by the Ld. CIT
ITA No.- 6620/Del/2016. M/s Raman Kumar Sawhney.
(Appeals) are not justified. As during the course of appeal there was a change in the counsel to whom sufficient time was not granted to prepare and submit the requisite evidences and contest the case. There was confusion because the date was fixed for 25th October 2016 and by department as mistake it was kept in the date of 26.10.2016 which was not intimated to the counsel nor the assessee as is clear from the copy of CIT order showing date of hearing as 26.10.2016.
That the addition U/s 68 made for Rs 26., 55., 000/- from relatives has wrongly been added.
That the addition U/s 68 made of Rs 3,30,000/- for cash deposited in bank account from earlier withdrawals from bank has been wrongly added.
That the addition U/s 68 made for 30,20,000/- has wrongly been added.
That the addition of Rs 10,55,800/- made by the ld. A.O U/s 68 and directed by the Ld. CIT to be made U/s 41(1) is baseless as the amounts were not found credited in the books in the year under scrutiny nor there was any remission in liability during the year under assessment. Therefore it has been wrongly added.
That the addition U/s 68 made for 23,53,000/- has wrongly been added.
That Disallowing loss of Rs 34,943/- as account of F & 0 share trading activities without viewing the details is unjustified.
That disallowance of commission of Rs 200,000/-which is in ordinary course business is not justified.
That disallowance of 20% on account of personal expenses is not justified.
That the benefit of brought forward losses has not been Provided. 13. That the other disallowance although nominal in amount as shown under have neither been discuss not the AO nor Specified any reason of those disallowances.
S.No. Particular Amount 1. Difference in Depreciation 19 2. Interest Paid on Service Tax Being 30,900 Penal in nature 3. STT, Service Tax and Stamp duty not 29,516 incidental to business activities 4. Transaction Charges on Shares not 2,188 incidental to business 5. Demat Charge not incidental to 1,785 business 6. Brokerage on Shares not incidental 2,459 to business
ITA No.- 6620/Del/2016. M/s Raman Kumar Sawhney.
That interest of Rs. 6,55,884/- U/s 234B has been wrongly charged.
The appellant craves leave to add, alter, delete and modify all or any of the grounds of appeal, at any time during the course of this appeal and request and opportunity of being heard before the order are passed on this appeal.”
(B) Assessment Order was passed on 16.03.2015 Under Section 143(3) of Income Tax Act, 1961, (“I.T. Act”, for short) wherein total income of the Assessee was determined at Rs. 80,52,480/- as per following computation:
Income from House Property Income as declared 1,74,052 Business income Net Loss as per P & L a/c (-) 19,94,840 Less: STCG & LTCG (Rs. 504402 + 34943) for 5,39,345 separate consideration (-) 14,55,495 Other income for separate consideration (Rs. (-) 5,71,911 (-) 20,27,405 281375 + 248645+ 16113+ 25777) Less: Difference in Depreciation Claim 19 Interest paid on Service tax being penal in 30,900 nature STT, Service tax and Stamp duty not incidental 29,516 to business activities Transaction charges on shares not incidental to 2,188 business Demat Charge not incidental to business 1,785 Brokerage on shares not incidental to business 2,459 Unexplained credits u/s 68 of the Act 26,55,000 Unexplained cash deposits to Capital A/c u/s 68 3,30,000
ITA No.- 6620/Del/2016. M/s Raman Kumar Sawhney.
Unexplained credits u/s 68 30,20,000 Disallowance of commission to R.K. Sawhney 2,00,000 HUF Unexplained credits u/s 68 10,55,800 Unexplained credits u/s 68 23,53,000 Disallowance out of Car expenses 83,791 97,64,458 79,11,105 Short-term capital Loss 0 Short-term Capital loss on a/c of F & O 0 79,11,554 Income from other sources Bank interest as declared 14,278 Interest on NSC 2,41,843 Interest on I.T refund 23,604 IFCI Infra bonds 1650 2,81,375 81,92,480 Less: Deduction u/s 80C, 80D & 80CCF 1,40,00 Taxable income 80,52,480 Or say : Rs. 80,52,480/- (B.1) The Assessee filed appeal before the Learned Commissioner of Income Tax (Appeals)-17, New Delhi. The Assessee did not appear before the Ld. CIT(A) during appellate proceedings before the Ld. CIT(A), and filed requests for adjournments repeatedly. Vide ex-parte order dated 27.10.2016, the Ld. CIT(A) dismissed the ITA No.- 6620/Del/2016. M/s Raman Kumar Sawhney. assessee‘s appeal on merits, on the basis of details / materials available on his record.
The Assessee has filed the present appeal in Income Tax Appellate Tribunal (“ITAT”, for short) against the aforesaid impugned ex-parte order dated 27.10.2016 of the Ld. CIT(A). When the appeal came up before us for hearing, the Ld. Counsel for assessee requested for restoration of the disputed issues in this appeal to the file of the Ld. CIT(A) for fresh order, so that the assessee has an opportunity of being heard by the Ld. CIT(A). The Ld. Departmental Representative (“DR”, for short) also agreed that all the disputed issues in the present appeal in ITAT filed by the Assessee may be restored to the file of the Ld. CIT(A) for fresh order on merits, provided the assessee co- operates in speedy disposal of appeal by the Ld. CIT(A) and does not take unnecessary adjournments.
(C) We have heard both sides. We have perused the materials available on record.
We find that the Ld. CIT(A) passed an ex-parte order in which assessee’s submissions could not be considered because of failure of the assessee to avail of opportunities provided by the Ld. CIT(A). Before us both sides are in agreement that all the disputed issues may be set aside to the file of the Ld. CIT(A) for fresh adjudication on merits.
Accordingly, we set aside the impugned ex-parte order dated 27.10.2016 of Ld. CIT(A), and restore all the disputed issues to the file of the Ld. CIT(A) for fresh orders on merits after providing opportunity of being heard to the assessee. The Assessee is also directed to co-operate in speedy disposal of appeal before the Ld. CIT(A) in pursuance
ITA No.- 6620/Del/2016. M/s Raman Kumar Sawhney. to this order; and , to not request unnecessary adjournments. The assessee is further directed to appear in the office of the Ld. CIT(A) on 15.10.2019 for receiving notice of hearing from the office of the Ld. CIT(A).
(D) In the Result, appeal of the Assessee is partly allowed.
Order pronounced in the open court on 19th day of August, 2019.