SH. V.N. KEDIA,NEW DELHI vs. DCIT, NEW DELHI

Date of Hearing 10.02.2016 Date of Pronouncement 03.03.2016 ORDER The present appeals have been filed by the assessee assailing the correctness of the consolidated order dated 06.08.2015 of CIT(A)-2, New Delhi pertaining to 2005-06, 2006-07, 2007-08, 2008-09, 2009-10, 2011-12 Assessment Years on various grounds including Ground Nos.1 & 2 which are common in all the appeals and read as under:-

However, the said request was not accepted as considering the material available on record in the context of the above two grounds the appeals could be decided.

It is further seen that even the assessee was not represented. However in view of the material available on record, it was considered appropriate to proceed with the hearing ex-parte qua the assessee appellant on merits.

I.T.A .Nos.-6600 to 6605/Del/2015

The case as per record was centralized to Central Circle-20, New Delhi vide order under section 127 of the Income Tax Act, dated 03.03.2011 of the Commissioner of Income Tax-XVI, Delhi. For the sake of considering the above two grounds the facts as evident in 2005-06 AY are being referred to as in the remaining years on this issue the facts remain identical.

3.1. The record shows that in response to the notice dated 04.11.2011, the assessee as per the assessment order is found to have filed a return on 05.01.2012 in 2005-06 AY declaring a total income of Rs.2,85,547/-. Thereafter a notice was issued on 01.10.2012 which as per para 2 of the AO was attended to by the assessee. The AO took note of the fact that the assessee was deriving income mainly from “salary”; “short term capital gain” and “other sources” etc.

Considering the fact that the assessee in its bank account had received certain amount from M/s Shripati Trading Co. on account of purchase and sales of securities /shares which the assessee had failed to reflect in its return of income filed the addition has been made.

3.2. Similarly it was also found that profit received from M/s Dyna Securities Ltd. duly credited in the bank of the assessee also was found not to have been declared in the assessee’s returned income. Accordingly additions were made on this count also in the year under consideration.

3.3. Similar is the position in the remaining years also.

I.T.A .Nos.-6600 to 6605/Del/2015 the arguments advanced in the respective years in pages 2 to 9 of his order.

Thereafter in the remaining half page of page 9, the grounds in different years have been summed up and again in pages 10, 11 & 12 the statutory position and the case laws have been discussed. The finding on the position of law thereafter has been set out in the remaining half of page 12 and on the merits of the additions, the finding has been arrived at in paras 5 & 5.1 which is reproduced hereunder:-

no.6.1 for A.Y.2005-06, grounds nos.6.1 and 6.2 for A.Y.2006-07, ground no.6.1 for A.y.2007-08, ground no.6.1 for A.Y. 2008-09, ground no.6.1 for A.Y.2009-10 and grounds nos.7.1 & 7.2 for A.Y.2011-12 are related to addition to income of the appellant as following:-

1. A.Y.2005-06-amount of Rs.31,289/- credited in bank but not disclosed by appellant in return.

2. A.Y.2006-07-amount of Rs.2,10,000/- credited in bank but not disclosed by appellant in return.

3. A.Y.2007-08-unexplained investment of Rs.2,86,000/- in plot.

4. A.Y.2008-09-unexplained deposits in bank, PPF account etc. of Rs.2,20,000/-.

5. A.Y.2009-10-unexplained credit entry of Rs.1,17,124/- in bank. 6.. A.Y.2011-12-loss of Rs.1,07,822/- disallowed for want of supporting and receipts of Rs.75,000/- assessed from running of car.

5.1. The above additions were made by the A.O because the appellant failed to provide explanations/supporting evidences in respect of the same during assessment proceedings. In appeal before me, the appellant’s AR has neither filed any application under rule 46A nor sought to explain what prevented the appellant from furnishing before the A.O. the explanations in regard to the additions mentioned in para 5.0 above, which he is submitting in appeal before me. Accordingly, the said explanations/evidences are not being admitted and the additions to income made in all the assessment years are upheld. These grounds of appeal are dismissed.” (emphasis provided)

5. When Ground No.1 & 2 raised in the present proceedings reproduced in the earlier part of this order are read alongwith the above conclusion in para 5.1 drawn by the CIT(A), it is seen that the assessee evidently sought to rely on fresh

I.T.A .Nos.-6600 to 6605/Del/2015 evidences. However, it is evident that the request was not supported by any application under Rule 46A setting out the reasons as to why it was not furnished before the AO.

5.1. Accordingly considering the peculiar facts and circumstances of the case and after hearing the Ld. Sr. DR who placed reliance on the impugned order, I am of the view that in the interests of substantial justice it would be appropriate to set aside the consolidated impugned order for each of the years as evidently relevant material in support of the grounds raised for want of proper advise etc. has not been placed on record. Accordingly, opportunity to do so is provided to the assessee. The assessee is directed to approach the CIT(A) with an appropriate petition seeking admission of fresh evidences and supporting its claim as per facts on record as to why the evidences were not filed before the AO. The Ld. Sr. DR has submitted that the position in the remaining years also remains the same which position is found to be correct.

5.2. In view of the afore-mentioned peculiar facts and circumstance, the impugned orders are set aside and the issues in each of these years are restored back to the file of the CIT(A) with the direction to pass a speaking order in accordance with law considering the admissibility of the petition under Rule 46A which the assessee is given liberty to file before the said authority. Needless to say that reasonable opportunity of being heard is to be granted to the assessee.

It may not be out of place to make it clear that it is hoped that the opportunity being provided is gainfully utilized by the assessee and the assessee does not abuse the trust reposed in good faith. As failing which the Ld.CIT(A) would be at liberty to pass a speaking order in accordance with law on the basis of material available on record.

I.T.A .Nos.-6600 to 6605/Del/2015

The order is pronounced in the open court on 03rd of March, 2016.