IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES : D : NEW DELHI
BEFORE SHRI R.S. SYAL, AM AND SHRI C.M. GARG, JM
ITA No.3594/Del/2013
Assessment Year : 2009-10
ITO, Vs. Jatinder Chanda,
Ward 32(4), 10/61, Vikram Vihar,
Room No.1510, Lajpat Nagar-IV,
15th Floor, Dr. Shyama New Delhi.
Prasad Mukherjee Civic
Centre, PAN : AADPC9727F
New Delhi.
(Appellant) (Respondent)
Assessee By : Shri Vijay Agarwal, CA
Department By : Shri S.N. Bhatia, Sr.DR
ORDER
PER R.S. SYAL, AM:
This appeal by the Revenue arises out of the order passed by
the CIT(A) on 28.03.2013 in relation to the Assessment year 2009-
10.
2. The only grievance raised in this appeal is against the
deletion of addition of ` 39,03,000/- made by the AO u/s 69 of the
ITA No.3594/Del/2013
Act by admitting additional evidence in violation of Rule 46A(3) of
the Income-tax Rules.
3. Briefly stated, the facts of the case are that the assessee
filed his return declaring income of ` 2,95,230/-. Such income
pertained to the head `Profit and gains of business and
profession.' The AO received an AIR information that the
assessee sold some immovable property valued at ` 39,03,000/-
during the financial year relevant to the assessment year under
consideration. Since the sale of this property was not declared,
the AO called upon the assessee to produce necessary documents
qua the purchase as well as sale of this property, and brokerage
payment, etc., if any. Several opportunities were granted by the
AO. Since no co-operation was forthcoming from the side of the
assessee and the case was getting time barred, the AO treated
sale consideration of ` 39.03 lac as income from undisclosed
sources u/s 69 of the Act. The ld. CIT(A) deleted this addition by
considering certain additional evidence. The Revenue is
aggrieved against this deletion of addition in utter violation of
Rule 46A(3) of the IT Rules.
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4. We have heard the rival submissions and perused the
relevant material on record. The assessment was concluded by
treating the receipt of ` 39.03 lac as income from undisclosed
sources u/s 69 of the Act because the assessee did not declare
the sale of the property in its return of income. Per contra, the ld.
CIT(A) noticed that in column 4ai of the income-tax return, the
assessee had declared short-term capital gain of `8,54,090/- on
the sale of this immovable property in respect of which AIR
information was received by the assessee. However, the ld.
CIT(A) noted that due to inadvertence, the said income was
omitted to be included in the total income and the tax was duly
paid though after the completion of assessment. We have
perused the copy of income-tax return on page 9 of the paper
book which indicates the amount of capital gain of ` 8,54,090/-.
Admittedly, this amount was not included in the total income. In
the absence of any co-operation forthcoming from the side of the
assessee, the AO treated the sale consideration of ` 39.03 lac u/s
69 of the Act. The ld. CIT(A) got convinced with the assessee's
submissin and ordered for the deletion of addition. He ought to
have considered that if there was a capital gain of ` 8.54 lac
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ITA No.3594/Del/2013
which was not included by the assessee in his total income, the
same should have been ordered for inclusion in the total income,
if the addition of ` 39.03 lac representing the sale consideration of
the very same plot was not called for. It is a classic case in which
the ld. CIT(A) has ordered the deletion of addition of ` 39.03 lac
without instructing the inclusion of the admitted amount of capital
gain of ` 8.54 lac in the total income. It is further observed that
the computation of capital gain of ` 8.54 lac was placed on record
only before the ld. CIT(A), which he admitted without giving an
opportunity to the AO, despite the fact that the assessee did not
furnish any information before the AO during the course of
assessment proceedings. In our considered opinion, the ends of
justice would meet adequately if the impugned order is set aside
and the matter is restored to the file of the AO. We order
accordingly and direct him to determine total income afresh after
considering the computation of short-term capital gain of ` 8.54
lac. Needless to say, the assessee will be allowed a reasonable
opportunity of being heard.
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5. In the result, the appeal is allowed for statistical purposes.
The order pronounced in the open court on 30.06.2014.
Sd/- Sd/-
[C.M. GARG] [R.S. SYAL]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated, 30th June, 2014.
dk
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT (A)
5. DR, ITAT
AR, ITAT, NEW DELHI.*
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