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Income-tax Officer, Ward 28(2), New Delhi. Vs. Anil Kumar Bansal (HUF), Katra of M/s Ram Kishore & Sons, 4032, Chawari Bazar, Delhi-110006.
March, 19th 2014
                    DELHI BENCH "A" NEW DELHI

                       ITA No. 4582/Del/2009
                       Asstt. Yr: 2002-03
Income-tax Officer,           Vs. Anil Kumar Bansal (HUF),
Ward 28(2), New Delhi.              Katra of M/s Ram Kishore & Sons,
                                    4032, Chawari Bazar, Delhi-110006.
                                    PAN: ABDPM 6914 E
( Appellant )                       ( Respondent )

              Appellant by     :     Shri Vivek Wadekar CIT (DR)
              Respondent by    :     Shri K. Sampath Adv. &
                                     Shri V. Raja Kumar Adv.



      This is revenue's appeal against the order of CIT(A)-XXV, New
Delhi dated 25-9-2009relating to A.Y. 2002-03. Following grounds are
      "1. On the facts and in the circumstances of the case, Ld.
      CIT(A) has erred in holding that adequate opportunity was not
      provided to the assessee while completing the assessment u/s
      147/144 of IT Act, 1961.

      2.   On the facts and in the circumstances of the case, Ld.
      CIT(A) has erred in deleting the addition of Rs. 188,61,967/-
      made on account of income from undisclosed sources."

2.    Facts, in brief are: Original assessment of the assessee was completed
u/s 143(1). Thereafter, assessing officer received information that some
accommodation loans were given by Mr. Nagarmal to assessee. 148 notice

was issued after fulfilling the formalities including recording of reasons.
Details found from the diary pertaining to Mr. Nagarmal, maintained in the
name of M/s Ram Kishore & Sons, are listed in A.O's order. Besides,
statement of Rajiv Gupta son of Shri Brij Mohan Gupta; and accountant
Ram Avtar Singhal, in whose handwriting the diary was written were also
recorded. According to assessee, on the date fixed for hearing i.e. 2-12-2008
no body appeared. Thereafter again show cause notice dated 4-12-2008 was
issued for 9-12-2008, which was not complied with. Another opportunity
was provided by way of notice dated 8-12-2008 for compliance on 10-12-
2008. However, none attended on 10-12-2008. Consequently assessing
officer passed assessment order u/s 144 making the impugned addition of
Rs. 1,88,61,967/-.
2.1.   Aggrieved, assessee preferred first appeal where CIT(A) itself stated
that no additional evidence was filed. Ld. CIT(A) without verifying any
other documents, without calling for remand report, deleted the addition by
following observations:
       "Ground no. 5 of the appeal relating to the quantum addition is
       considered next. It is apparent from the impugned order that
       the assessing officer completely failed to establish any case
       against the appellant. Further inquiry/ investigation was
       required to be carried out on the information passed by the
       DCIT, Central Circle 19, New Delhi, but no worthwhile or
       cogent work was done towards this end. No corroborative
       evidence to that found during search on Sh Brij Mohan Gupta
       was gathered in relation to the appellant. The assessing officer
       merely reproduced his communications with the appellant and
       summarized the salient features of the assessment proceedings
       relating to Sh Brij Mohan Gupta and thereafter proceeded to
       add Rs. 1,88,61,967/- to the total income of the appellant. In
       view of the discussion above, the assessing officer was not
       justified in making the addition of Rs. 1,88,61,967/-. Ground 5
       of the appeal is therefore allowed."

2.2.   Aggrieved, revenue is before us.
3.     Ld. DR contends that the impugned assessment was passed            u/s

144/147 after giving various opportunities including specific show cause

notices to the assessee to furnish the information and explain the

inconsistencies and the mentioning of book entries in the diaries in the

nature of loans. Assessee did not appear in any hearing and A.O. framed ex

parte assessment. CIT(A) by cryptic finding, without mentioning any reason

offered by the assessee for his failure to attend the proceedings had

summarily held that adequate opportunity was not provided in assessment.

This finding is contrary to record, which is challenged by ground no. 1.

CIT(A) cannot hold any assessment order to be passed without giving

adequate opportunity in the absence of any cogent reasons, justifying the

assessee's failure to attend. On merits also, ld. CIT(A) has not verified any

further document was assessment was ex parte, as none existed on record.

No additional evidence is filed and merely the contentions of the assessee

have been accepted without any questions and without referring to the

submissions of the assessee, if any. Under these circumstances, the relief on

merits is unjustified.

4.     Ld. Counsel for the assessee, on the other hand, relied on ITAT order

in the case of other persons whose names were also found in the diary

pertaining to Mr. Nagarmal. Reliance is placed on the orders of ITAT in the

cases of :

     -   ITAT Delhi Bench `B' order dated 17-3-2011 in cross appeals
         being ITA nos. 1522/Del/10 & 2727/Del/10 M/s Dev Dutt Prasad
         Raj Kumar Garg Vs. ITO & vice versa.
   -     ITAT Delhi Bench `A' in the case of Atul Gupta Vs. DCIT (ITA
         nos. 24/Del/2011 & 709 to 712/Del/2011 order dated 18-5-2012
   -     ITAT Delhi Bench `A' in the case of ITO Vs. Anil Kumar Bansal
         (HUF) (assessee) (ITA no. 1156/Del/2009 ­ order dated 11-9-
4.1. In these cases the additions have been deleted, therefore, the CIT(A)'s

order stands justified by the finding of the ITAT in other cases.

5.       Ld. DR in rejoinder vehemently argues that in the cases decided by

the ITAT, assessments were framed u/s 143(3) and not u/s 144. Thus, while

deciding those cases, there was sufficient material before the CIT(A) as well

as the ITAT based on their perusal the ITAT has passed the impugned

orders. In contradiction, assessment in the case of the assessee is passed u/s

144 and not u/s 143(3). In view thereof, the assessee's case cannot be held to

be covered in favour of the assessee by those ITAT orders.

6.       We have considered rival contentions and perused the material

available on record. We find merit in the argument of ld. DR that ld.

CIT(A) has neither given cogent reasons to establish that the failure on the

part of the assessee was justified. Besides, while allowing relief on merits,

no evidence has been referred nor justifiable observations are recorded

which can support the action of the CIT(A) in deleting the additions


6.1.   Apropos the plea that issue is covered ITAT judgments, though they

may pertain to diary belonging to Shri Nagarmal, the fact is that impugned

assessment is framed u/s 144 and not u/s 143(3). On this crucial fact the

above referred judgments of the ITAT cannot be applied to the assessee's

case. In consideration of all the facts and circumstances, we are inclined to

set aside the matter back to the file of assessing officer to decide the same

afresh after giving the assessee an opportunity of being heard after taking

into consideration the above referred ITAT judgments and passing an order

in accordance with law.

7.     In the result, revenue's appeal is allowed for statistical purposes.
Order pronounced in open court on 14-03-2014.

      Sd/-                                                        Sd/-
( SHAMIM YAHYA)                                            ( R.P. TOLANI )
ACCOUNTANT MEMBER                                     JUDICIAL MEMBER
Dated: 14-03-2014.
Copy to :
   1. Assessee
   2. AO
   3. CIT
   4. CIT(A)
   5. DR
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