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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’, NEW DELHI
Before: SHRI R. K. PANDA
This appeal filed by the assessee is directed against the order dated 24th January, 2017 of the CIT(A) -1 Noida relating to assessment year 2009-10. The Assessee in the various grounds of appeal has challenged the order of the CIT(A) in confirming the addition of Rs. 25,54,125/- made by the AO on account of unexplained investment in the property. The assessee has also challenged the validity of the reassessment proceedings initiated by the AO u/s 147/148.
2. Facts of the case, in brief, are that the assessee is an individual. As per the AIR information received regarding purchase of property for Rs. 48,68,250/-, the AO issued notice u/s 148 of the Income Tax Act to the assessee on 19th March, 2015. There was no compliance by the assessee within the period of 30th days given by the AO. Therefore, the AO issued another notice u/s 142(1) of the Income Tax Act fixing the date for compliance on 22nd January, 2015. There was again non-compliance. He, therefore, issued a show cause notice u/s 144 of the IT Act on 2nd March, 2016 fixing date for compliance on 9th March, 2016. Although the notice was duly served on assessee, still there was no compliance. The AO, therefore, completed the assessment u/s 144 making the addition of Rs. 25,54,125/- as unexplained investment.
3. Before the CIT(A), it was argued that the assessee did not receive the notices issued by the AO u/s 148 or u/s 142(1) or the show cause notice issued u/s 144, since the assessee was out of country. Therefore, there was denial of natural justice since assessee was not given proper opportunity of being heard. It was submitted that the entire payment was made by the husband of the assessee and the assessee has not spent anything on her part. It was accordingly argued that addition if any can be made in the hands of the husband.
4. However, The CIT(A) was not convinced with the arguments advanced by the assessee and dismissed the appeal by observing as under : “6. The claim of the appellant to be out of India during the period 19.03.2015 when notice u/s 148 was issued up to 12.06.2015 when notice u/s 142(1) was issued and thereafter, on 02.03.2016 when notice u/s 144 was issued is not borne from the records submitted by the appellant. From the immigration stampings of her passport it is seen that she has been in India since 10.12.2013 onwards and therefore when the notices were issued by the ld. A.O. she was very much in India. It is not in dispute that the notices were issued to the appellant on a address which is given by her as her address everywhere including in the Form No. 35 for the present appeal. Once the notices were issued and delivered by the ld. A.O. that too through the agency of the postal authorities on the correct address, the appellant cannot disclaim her responsibility on the ground that she did not get those notices. Admittedly, notices were correctly issued and were correctly delivered on the correct address and non compliance by the appellant cannot be accepted on the ground that she did not received the same either personally or physically.
7. In view of the valid service of notice and the failure of the appellant to comply with the same the impugned assessment order cannot be interfered with. The same is therefore confirmed. The appeal of the fails and is dismissed.” 4.1 Aggrieved with such order of CIT(A), the assessee is in appeal before the Tribunal.
The ld. Counsel for the assessee submitted that although the assessee has made written submission, the ld. CIT(A) has not considered the same. He submitted that the assessee has explained that the entire investment has been made by her husband and therefore, addition, if any, should be made in his hands. He submitted that it was explained before the CIT(A) that the name of the assessee was inserted in the sale-deed for the sake of convenience and for safety purposes. He submitted that since the Ld. CIT(A) has not properly appreciated the facts of the present case, therefore, the matter may be restored to his file for fresh adjudication.
The ld. DR on the other hand heavily relied on the order of the CIT(A).
I have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the Assessee. I find the AO on the basis of AIR information received, showing purchase of a house property by the assessee for Rs. 48,68,250/- issued notice u/s 148. Since, there was no compliance to the statutory notices issued by him, he completed the assessment u/s 144 of the Act by making addition of Rs. 25,54,125/- being 50% of the value of the property including stamp duty. I find the Ld. CIT(A) upheld the addition made by the AO and the reasons for which he sustained the addition has already been reproduced in the preceding paragraph. It is the submission of the ld. Counsel for the assessee that the ld. CIT(A) has not considered the detailed written submission filed before him. He has also not considered the submission of the assessee that the entire investment was made by her husband and her name was inserted for the sake of convenience and for her safety. I find merit in the above submission of the ld. Counsel for the assessed. The written submission dated 9th January, 2017 filed by the assessee, copy of which is placed in the paper book has not been considered by the ld. CIT(A). Further if the entire investment has been made by the husband of the assessee then no addition can be made in the hands of the assessee. However, this fact has never been properly considered by the CIT(A). It was stated before the Ld. CIT(A) that Mr. Ashwani Kumar Singhal, husband of the assessed, had obtained housing loan of Rs. 20,00,000/- from IDBI Bank and the balance amount of Rs. 28,47,250/- was paid by him out of his own sources and all payments were through banking channel and there was no cash transaction. Considering the totality of the facts of the case and in the interest of justice I am of the opinion that the matter requires a revisit to the file of the CIT(A). I, therefore, restore the matter to the file of the CIT(A) with a direction to give one more opportunity to the assessee to substantiate with evidence to his satisfaction that the amount has been paid by the husband of the assessee out of his own source. The CIT(A) shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. I hold and direct accordingly. The grounds raised
by the assessee are accordingly allowed for statistical purposes.
8. In the result, the appeal filed by the assessee is allowed for statistical purposes. (Order Pronounced in the Open Court on 16/06/2017)