MRS. KAUSHALYA MUCHHAL,NEW DELHI vs. ITO, NEW DELHI

Date of Hearing 04.08.2015 Date of Pronouncement 09.10.2015 ORDER The present appeal has been filed by the assessee assailing the correctness of the order dated 01.08.2014 of CIT(A)-XXIV, New Delhi pertaining to 2004-05 assessment year on the following grounds:-

1. “That the order of Learned CIT (A) is arbitrary, biased and bad in law and on facts of the case.

2. That the Learned CIT (Appeals) has grossly erred in confirming the action of the Assessing Officer as proper and legal for reopening the assessment under section 147/148 of the Act and in not declaring the assessment null and void.

3. That the Learned CIT (Appeals) has grossly erred in confirming the addition of Rs.4,19,680/- on conjectures and surmises by making suo- motto enquiries at the back of the appellant and without apprising the assessee of findings of his enquiry before finalizing the appeal order and thus violating the principles of natural justice.

4. That the Learned CIT (Appeals) has grossly erred in confirming the invocation of the provisions of section 68 of the Act by the Assessing Officer.

5. That the Learned CIT (Appeals) has grossly erred in confirming the addition of Rs.4,19,680/- made under section 68 of the Act by the Assessing Officer.

6. The appellant craves leave to add, alter, amend or delete the above grounds of appeal at the time of hearing.”

I.T.A .No.-5568/Del/2014 2. Addressing the grievance posed in grounds raised

, the Ld. AR submitted that in the facts of the present case copy of the reasons recorded was never provided to the assessee. The said issue it was submitted was agitated before the AO and also the CIT(A). Inviting attention to the one paged order u/s 143(3)/147 dated 15.12.2011, it was submitted that the assessee was required by the AO to provide a bank statement of her Saving A/c No.10872 maintained with Canara Bank, Rajouri Garden Branch, New Delhi. Since it was not readily available, adjournment was sought which was granted. On the next date due to severe pain in the assessee’s teeth the assessee again could not be represented. Thus an adjournment was sought through clerk of the counsel. The clerk it was submitted was directed to seek an adjournment from the Inspector who was having the file and the Inspector verbally communicated that the hearing was adjourned to 19.12.2011. On the said date, the assessee it was submitted filed the copy of the bank statement which was not taken on record. The said bank statement it was submitted was also sent by post. Thus in these circumstances relying upon Tin Box Co. vs CIT [2001] 249 ITR 216 (SC), lack of opportunity was pleaded before the CIT(A). These submissions it was submitted have been recorded in the impugned order but have not been taken into consideration while passing his order. Referring to the impugned order at page 2 & 3 it was submitted that the assessee’s submissions that copy of reasons was never provided is found recorded therein and the supporting arguments that on inspection of the record by the Ld. AR on 22.11.2011 of the AO neither the copy of the Investigation Wing of the department was on record nor were the reasons recorded for re-opening the assessment were on record. Copy of the reasons recorded it was submitted were also not provided and were sought on 09.11.2011. These submissions it was submitted were made before the CIT(A) and they have not been dealt with in the order under challenge. In these circumstances it was his prayer that the impugned order be set aside and the grounds of the assessee be allowed.

3. The Ld. Sr. DR, Dr. Anjula Jain relied upon the impugned order. Addressing the submissions found recorded in the order of the CIT(A), she was unable to controvert the argument that they have not been considered by the CIT(A). In the circumstances it was her prayer that the matter may be restored for a detailed finding on facts and law. Page 2 of 4 I.T.A .No.-5568/Del/2014 4. Having heard the rival submissions and perused the material available on record, I am of the view that in the facts of the present case, the impugned order cannot be upheld. A perusal of unnumbered page 5 to 11 of the impugned order shows that the submissions of the assessee have been reproduced duly supported by the statement of facts filed before the CIT(A) reiterating the similar position which brings out the factual position of what transpired on 14.11.2013 in the assessment proceedings. For ready-reference, we extract the relevant extract from the impugned order:- ………………………….. “The Ld. AR further submitted that the Assessing Officer had passed the assessment order on 15.12.2011 without appreciating the fact that on 14.12.2011 the case was adjourned verbally by the inspector on direction of the assessing officer for hearing on 19.12.2011. The assessing Officer during the course of assessment proceedings directed the assessee to file a copy of her bank statement of saving bank account No. 10872 maintained by her with Canara Bank, Raja Garden Branch, New Delhi. The bank statement was not available with the assessee as the same was quiet old. The bank delayed in supplying the bank statement on the ground that the same was not readily available with it. The case was adjourned to 14.12.2011. The A.R could not appear before the Assessing Officer 14.12.2013 on account of pain in his teeth and sent his clerk to seek date for filing bank statement. The assessing officer directed the clerk of A.R to obtain date from his inspector who had the file of the assessee. The inspector has verbally granted adjournment to 19.12.2011 without recording the same on the file. The A.R appeared before the Assessing Officer for hearing on 19.12.2011 to file the requisite detail of bank statement to comply with the AO's direction which statement was not accepted by him.” ………………………….