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ITO, Ward 32(4), Room No.1510, 15th Floor, Dr. Shyama Prasad Mukherjee Civic Centre, New Delhi. Vs. Jatinder Chanda, 10/61, Vikram Vihar, Lajpat Nagar-IV, New Delhi.
July, 02nd 2014
                 DELHI BENCHES : D : NEW DELHI


                       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



       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-


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.

                                                      ITA No.3594/Del/2013

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

                                                      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.

                                                           ITA No.3594/Del/2013

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.


Copy forwarded to:

     1.   Appellant
     2.   Respondent
     3.   CIT
     4.   CIT (A)
     5.   DR, ITAT

                                                   AR, ITAT, NEW DELHI.*

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