Referred Sections: Section 80TTA of the I.T. Act, Section 271(1)(c) of the I.T. Act.
Referred Cases / Judgments: CIT vs. Vamadevan Bhanu 330 ITR 559 (Kerala) Jivatlal Purtapshi vs Commissioner Of Income-Tax [1967]
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES "SMC": DELHI
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
ITA.No.6102 & 6103/Del./2018
Assessment Year 2014-2015
Shri Naresh Kumar, The Income Tax Officer,
Village-Sultanpur, Sector-
127, Distt. G.B. Nagar, vs., Ward 2(3),
Noida. Uttar Pradesh.
PIN 201 301. Noida.
PAN AVGPK5027Q
(Appellant) (Respondent)
For Assessee : Shri Sandeep Jain, C.A.
For Revenue : Shri S.L. Anuragi, Sr. D.R.
Date of Hearing : 28.08.2019
Date of Pronouncement : 11.09.2019
ORDER
2. I have considered the rival submissions and
perused the findings of the authorities below.
3. In ITA.No.6102/Del./2018 assessee challenged
the additions on quantum contending that the Ld. CIT(A)
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
passed the Order without disposing of the grounds raised
on merits and that some of the grounds were not agreed for
addition.
4. Briefly the facts of the case are that return of
income was filed on 27.03.2015 declaring net income of
Rs.2,31,940/-. Initially there was no compliance to the
statutory notice issued by the A.O. Later on some
compliance have been made. The A.O. noted that assessee
runs a P.G in the name and style of Pradhan P.G at village-
Sultanpur, Sector-128, Noida. The statement of Shri
Vishesh Kumar Tyagi on oath was recorded in which he has
confirmed that assessee is owner of aforesaid P.G. and
earns rental income. The A.O, therefore, after giving
opportunity to the assessee and material on record made
addition of Rs.9,81,750/- on account of undisclosed rental
income. The A.O. also noted that assessee had sold two
Flats, on which, short term capital gain was worked-out and
addition was made on account of undisclosed capital gain of
Rs.2,23,333/-. The A.O. further noted that there are cash
deposits and investment which remain unexplained. The
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
A.O. therefore made addition of Rs.7,10,000/- on account of
undisclosed cash deposit. The A.O. further observed that
assessee had received interest of Rs.1,06,992/- in his S.B.
Account which have not been disclosed in the income tax
return. Therefore, after giving rebate of Rs.10,000/- under
section 80TTA of the I.T. Act, the A.O. made addition of
Rs.96,992/- on account of undisclosed income from other
sources. The A.O. after making these four additions,
computed the total taxable income of assessee at
Rs.22,10,460/-.
5. The assessee challenged aforesaid four additions
before the Ld. CIT(A). The Ld. CIT(A) noted in the appellate
order that Counsel for Assessee at the very outset submitted
that assessee had income from P.G. at village Sultanpur,
Sector 128, Noida and same was not disclosed by him in his
return of income. He has stated that assessee has also not
disclosed the capital gains amounting to Rs.2,23,333/- in
the return of income and same may be taken into
consideration to compute the total income of assessee. Ld.
CIT(A) also noted that Counsel for Assessee during the
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
course of hearing also stated that he is not pressing the
Ground Nos.2 and 4 as taken in the grounds of appeal. Ld.
CIT(A) noted that on Ground No.2 assessee challenged the
computation of total taxable income at Rs.22,10,460/- as
against the returned income at Rs.1,98,380/-. The Ld.
CIT(A) also noted that on Ground No.4, assessee challenged
the addition of Rs.2,23,333/- on account of undisclosed
capital gains. The Ld. CIT(A), therefore, noted that since on
all the four grounds addition has been made at
Rs.22,10,460/- which is not pressed by Counsel for
Assessee, therefore, there is no need to consider other
grounds of appeal. The appeal of assessee was accordingly
dismissed as not maintainable.
6. After considering the rival submission, I am of
the view that the part matter requires reconsideration at the
level of the Ld. CIT(A). Learned Counsel for the Assessee
submitted that Counsel for Assessee only agreed for not
pressing the Ground No.4 and 6 raised in the appeal. Same
fact is also stated in the written submissions filed before the
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
Tribunal. He has, therefore, submitted that other grounds
should have been decided on merits by Ld. CIT(A).
7. The Ld. D.R. relied upon orders of the authorities
below.
8. It is well settled law that no appeal lies on agreed
additions. I rely upon Judgment of Hon'ble Bombay High
Court in the case of Jivatlal Purtapshi vs Commissioner
Of Income-Tax [1967] 65 ITR 261 (Bom.), Judgment of
Hon'ble Kerala High Court in the case of CIT vs. Vamadevan
Bhanu 330 ITR 559 (Kerala) and Judgment of Hon'ble
Punjab and Haryana High Court in the case of Banta Singh
Kartar Singh 125 ITR 239 (P&H). In this case, the Ld. CIT(A)
noted in the appellate order that Counsel for Assessee at the
very outset, submitted that assessee had income from P.G.
at Village Sultanpur, Noida which have not been disclosed
by him in his return of income. He has further stated that
assessee has also not disclosed capital gains amounting to
Rs.2,23,333/-. It would, therefore, show that Counsel for
Assessee correctly agreed for not pressing these grounds of
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
appeals before the Ld. CIT(A). The Ld. CIT(A) noted in the
impugned order that Counsel for Assessee did not press
Ground Nos. 2 and 4 before him. Ground No.2 is general in
nature which is raised with regard to computation of income
at Rs.22,10,460/- as against the declared income and that
on Ground No.4, addition of Rs.2,23,333/- have been
challenged for capital gains. However, the fact remains that
Counsel for Assessee submitted before the Ld. CIT(A) that
assessee has income from P.G. at Noida which is not
disclosed in the return of income. This would strengthen the
findings of the authorities below that assessee has
undisclosed rental income from running P.G. at Village
Sultanpur, Noida. Learned Counsel for the Assessee
admitted that assessee did not move any application for
rectification before the Ld. CIT(A) to challenge the aforesaid
findings of the Ld. CIT(A) that Counsel for Assessee made
such a statement and did not press Ground Nos. 2 and 4
before the Ld. CIT(A). The assessee did not made any
attempt to contradict the finding of fact recorded by the Ld.
CIT(A) before filing of the appeal before the Tribunal by
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
moving any petition before the Ld. CIT(A). Learned Counsel
for the Assessee in the written submissions filed before the
Tribunal has categorically stated that Counsel for Assessee
has agreed for not pressing Ground Nos.4 and 6 in the
appeal. It would, therefore, support the findings of Ld.
CIT(A) that Counsel for Assessee made the statement for not
pressing these grounds of appeal before the Ld. CIT(A).
Learned Counsel for the Assessee did not contradict the
statements made before the Ld. CIT(A) that assessee has
received rental income from P.G. at Village Sultanpur,
Noida. These facts clearly show that assessee has
undisclosed rental income and has also undisclosed capital
gains. Therefore, these grounds have been rightly dismissed
by the Ld. CIT(A). No interference is required in the matter.
The Counsel for Assessee has agreed that Counsel for
Assessee did not press Ground No.6 before the Ld. CIT(A)
with regard to earning of undisclosed interest income in a
sum of Rs.96,992/-, therefore, this ground is also
dismissed.
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
9. The only ground left for consideration is
undisclosed cash deposit of Rs.7,10,000/-. It appears from
the impugned order that Ld. CIT(A) considering general
ground of computing taxable income at Rs.22,10,460/- did
not decide Ground No.5 of the appeal of assessee
challenging the addition of Rs.7,10,000/- on account of
undisclosed cash deposits. This ground, therefore, requires
reconsideration at the level of the Ld. CIT(A).
10. Considering the above discussion, I confirm the
Order of the Ld. CIT(A) in dismissing the appeal of assessee
on the remaining grounds except on Ground No.5
challenging the addition of Rs.7,10,000/- on account of
undisclosed cash deposit. In this view of the matter, I set
aside the Order of the Ld. CIT(A) qua Ground No.5 only and
restore this ground of undisclosed cash deposit in sum of
Rs.7,10,000/- to the file of Ld. CIT(A) with a direction to re-
decide this ground as per Law, by giving reasonable,
sufficient opportunity of being heard to the assessee.
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
11. In the result, ITA.No.6102/Del./2018 of the
appeal of Assessee partly allowed for statistical purposes to
the above extent only.
12. In ITA.No.6103/Del./2018 assessee challenged
the levy of penalty under section 271(1)(c) of the I.T. Act.
The Ld. CIT(A) dismissed the appeal of assessee on account
of penalty levied by the A.O. on the income to the extent of
Rs.20,12,075/- i.e., on the above four additions. In the
penalty order, the Ld. CIT(A) did not discuss the issue in
detail on merits. Further, when on one ground which is not
decided by the Ld. CIT(A) on merit, I have allowed appeal of
assessee partly for statistical purposes, therefore,
considering the penalty order to be non-speaking on each
and every addition, I am of the view that the entire appeal
requires reconsideration at the level of the Ld. CIT(A). In
view of the above discussion, I set aside the penalty order
and restore the appeal of assessee to the file of Ld. CIT(A)
with a direction to re-decide the penalty matter strictly on
merits as per Law, by giving reasonable, sufficient
opportunity of being heard to the assessee.
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
13. In the result, ITA.No.6103/Del./2018 of the
Assessee allowed for statistical purposes.
14. To sum-up, ITA.No.6102/Del./2018 of the appeal
of Assessee partly allowed for statistical purposes and
ITA.No.6103/Del./2018 of the Assessee allowed for
statistical purposes.
Order pronounced in the open Court.
Sd/-
(BHAVNESH SAINI)
JUDICIAL MEMBER
Delhi, Dated 11th September, 2019
VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT "SMC" Bench
6. Guard File
//By Order//
Asst. Registrar : ITAT : Delhi Benches :
Delhi.
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ITA.Nos.6102 & 6103/Del./2018
Shri Naresh Kumar, Noida.
Date of dictation 26.08.2019
Date on which the typed draft order is placed before 09.09.2019
the dictation Member
Date on which the approval draft comes to the Sr. PS 11.09.2019
Date on which the fair order is placed before the 11.09.2019
Dictation member for pronouncement
Date on which the fair order comes back to the Sr. P.S. 11.09.2019
Date on which the final order is uploaded on the 11.09.2019
website of ITAT
Date on which the file goes to the Bench Clerk 11.09.2019
Date on which the file goes to the Head Clerk
The date on which the file goes to the Assistant
Registrar for signature on the order
Date of dispatch of the Order.
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