IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH `E', NEW DELHI
BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER
AND.
SH. K. N. CHARY, JUDICIAL MEMBER
ITA No.6492/Del/2016
Assessment Year: 2012-13
Neeraj Malik Vs. ITO
SE-116, Shastri Nagar Ward 1 (4)
Ghaziabad Ghaziabad
PAN No. AINPM1019J
(APPELLANT) (RESPONDENT)
Appellant by Sh. Neeraj Malik, CA
Respondent by Ms.Rakhi Bimal, Sr. DR.
Date of hearing: 11/11/2019
Date of Pronouncement: 14/11/2019
ORDER
PER R.K PANDA, AM:
This appeal filed by the assessee is directed against the
order dated 28.09.2016 of the CIT(A), Ghaziabad relating to A.Y.
2012-13.
2. Although a number grounds have been raised by the
assessee in the grounds of appeal, these all relate to the order of
the CIT(A) in confirming the addition of Rs.1,39,47,250/- made by
the AO.
3. Facts of the case, in brief, are that the assessee is an
individual and filed his return of income on 28.03.2013 declaring
total income of Rs.3,09,650/-. Despite service of notice the
assessee did not appear before the AO due to which the AO
completed the assessment u/s. 144 of the IT Act determining the
total income of the assessee at Rs.14,256,900/-wherein he made
addition of Rs.1,39,47,250/- u/s. 69 of the IT Act being
unexplained investment in purchase of an immovable property.
According to the AO the assessee alongwith three more persons
had jointly purchased an immovable property for consideration of
Rs.5,16,71,000/-.
3.1 Before CIT(A) the assessee filed certain additional evidences
under Rule 46A of the IT Rule 1962. However, the Ld. CIT(A) did
not admit those additional evidences filed before him and upheld
the action of the AO in making the addition of Rs.1,39,47,250/-.
4. Aggrieved with such order of the CIT(A), the assessee is in
appeal before the Tribunal.
5. The Ld. Counsel for the assessee at the outset submitted
that due to illness of the sister of the assessee he was unable to
appear before the AO and filing the requisite details for which the
assessment was completed u/s. 144 of the IT Act. Although the
assessee filed various evidences before the CIT(A) requesting him
to admit the same as additional evidences under Rule 46 A of the
IT Rules, however, the Ld. CIT(A) without considering the
additional evidences filed before him sustained the addition made
by the AO. He submitted that in the interest of justice the
assessee should be given an opportunity to substantiate his case
either before the AO or before the CIT(A) as the Bench deems
proper.
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6. The Ld. DR on the other hand heavily relied on the order of
the CIT(A) and submitted that despite repeated opportunities
granted by the AO the assessee never appeared before him for
which he was constrained to pass the exparte order. No justifiable
reasons were given before the CIT(A) for admission of the
additional evidences. Therefore, the Ld. CIT(A) was fully justified
in upholding the order of the AO and in not admitting the
additional evidences filed before him.
7. We have considered the rival arguments made by both the
sides and perused the orders of the authorities below. We find
the assessee in the instant case has purchased an immovable
property alongwith three more persons for a consideration of
Rs.5,16,71,000/-. Since the assessee did not appear before the
AO and filed the explanation regarding the source of such
investment, the AO invoking the provisions of section 144 of the
IT Act completed the assessment wherein he made addition of
Rs.1,39,47,250/- as unexplained investment for purchase of the
property. We find although the assessee filed cer?tain additional
evidences, however, the Ld. CIT(A) did not admit the same on the
ground that none of the conditions laid down in Rule 46 A are
fulfilled in the case of the assessee. It is the submission of the
Ld. Counsel for the assessee that due to the illness of the sister of
the assessee he was disturbed and was not in a position to file
the requisite details before the AO for which he moved an
application under Rule 46 A before the CIT(A) to admit the
additional evidence as he was prevented from sufficient causes in
not filing of the details. It is also his submission that in the
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interest of justice the assessee should be given an opportunity to
substantiate his case before the lower authorities. Considering
the totality of the facts of the case and in the interest of justice we
deem it proper to restore the issue to the file of the AO with a
direction to give one final opportunity to the assessee to
substantiate his case and decide the issue as per fact and law.
The assessee is also hereby directed to appear before the AO and
file requisite details failing which the AO is at liberty to pass
appropriate order as per law. We hold and direct accordingly. The
grounds raised by the assessee are accordingly allowed for
statistical purpose.
8. In the result the appeal filed by the assessee is allowed for
statistical purpose.
Order pronounced in the open court on 14.11.2019.
Sd/- Sd/-
(K. NARSIMHA CHARY) (R.K PANDA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
*Neha*
Date:- 14.11.2019
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
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Date of dictation 11.11.2019
Date on which the typed draft is placed before the dictating 11.11.2019
Member
Date on which the approved draft comes to the Sr.PS/PS 14.11.2019
Date on which the fair order is placed before the Dictating 14.11.2019
Member for Pronouncement
Date on which the fair order comes back to the Sr. PS/ PS 14.11.2019
Date on which the final order is uploaded on the website of 14.11.2019
ITAT
Date on which the file goes to the Bench Clerk 14.11.2019
Date on which file goes to the Head Clerk.
The date on which file goes to the Assistant Registrar for
signature on the order
Date of dispatch of the Order
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