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Sh. Ram Niwas H.No.A-26, Sanjay Gram Opp. Sector 14 Gurgaon 122 002, Haryana vs ITO, Ward 2(1) Gurgaon
August, 16th 2018

Subject:- Sr. DR submitted that totalling mistake is a mistake apparent on record,

Referred Sections:
Section 143(3).
Section 250(6)
Section 154 of the Act
Section 143 (3) of the Income Tax Act,

Referred Cases / Judgments
Sh. Ram Niwas vs. ITO

         IN THE INCOME TAX APPELLATE TRIBUNAL
              DELHI BENCH: `F' NEW DELHI

         BEFORE SHRI R.S.SYAL, VICE PRESIDENT
        AND SMT. BEENA A PILLAI, JUDICIAL MEMBER

                       ITA No. 1977/Del/2014
                ASSESSMENT YEAR-2009-10
                              &
                     ITA No. 6696/Del/2016
                  ASSESSMENT YEAR-2009-10
 Sh. Ram Niwas                   vs  ITO, Ward 2(1)
 H.No.A-26, Sanjay Gram              Gurgaon
 Opp. Sector 14
 Gurgaon 122 002, Haryana
 PAN: ADHPN6950A
        (Appellant)                      (Respondent)


         Department        by        Sh. Atiq Ahmad, Sr. DR.

         Assessee     by             Sh. Shyam Sunder Mangla, Adv.

         Date of Hearing             14/08/2018
         Date of                     14th August, 2018
         Pronouncement


                                     ORDER

PER BEENA A PILLAI, JUDICIAL MEMBER:

     Present appeals have been filed by assessee against order
dated 29/01/2014 passed by Ld.CIT(A)-2, Faridabad and order
dated   27/10/16    passed      by    Ld.CIT   (A)-1,   Gurgaon,   for
Assessment Year 2009-10 on the following grounds of appeal:
ITA No. 1977/Del/2014
(AGAINST ORDER UNDER SECTION 250 DATED 29/01/2014
FOR A.Y- 2009-10)
                                           ITA 1977/Del/2014 & ITA 6696/Del/16
                                             Sh. Ram Niwas vs. ITO, A.Y. 2009-10

 1.    That the assessee denies his liability to be assessed at the
total income of Rs. 32,24,600/- accordingly denies his liability to
pay tax and interest thereon.
2. That having         regards to     the facts and circumstances
of the     case, the Hon'ble Commissioner of Income Tax
(Appeals) is not right in confirming  the impugned order framed
by the Assessing officer under section 143(3).
3. That having         regards to     the facts and circumstances
of the     case, the Hon'ble Commissioner of Income Tax
(Appeals) has erred in law and on facts by adding amount of Rs.
20,30,000/- on account of credit entries in SB A/c with ING Vyasa
Bank.
4. That    having      regards to     the facts and circumstances
of the     case, the Hon'ble Commissioner of Income Tax
(Appeals) has erred in law and facts by adding amount of Rs.
2,95,000/- on account of unsecured loan.
5. That having regards to facts and circumstances of the case Ld.
CIT (Appeals) has not complied with the provision of rule 46A to
call such material on record.
6. That having regards to facts, The Ld. Commissioner of Income
Tax (Appeals) has not complied the provision of sec. 250(6) to pass
a speaking order.
7. That the Hon'ble Commissioner of Income Tax (Appeals) has not
afforded proper opportunity to the appellant to explain the matter
and whole order is arbitrary and against the principles of nature
justice
8. That in any view of the matter and any case the order under
appeal is bad in law and against the circumstances of the case.9.
9. That the appellant craves leave to add, Modify, amend or delete
any of the grounds of appeal at the time of hearing and all the
above grounds are without prejudice to each other."






ITA No. 6696/Del/2016
(AGAINST ORDER UNDER SECTION 250(6) DATED 27/10/2016
FOR A.Y- 2009-10)
1.    That the Ld. CIT CA) has substantially erred in law and on
facts in confirming the impugned order passed by Ld. Assessing
Officer under section 154.
2.    That the Ld. CIT CA) has not afforded proper opportunity to
the appellant to explain the matter and whole order is arbitrary
and against the principles of nature justice.

                                                                              2
                                             ITA 1977/Del/2014 & ITA 6696/Del/16
                                               Sh. Ram Niwas vs. ITO, A.Y. 2009-10

3.   That in any view of the matter and any case the order under
appeal is bad in law and against the circumstances of the case.
4. That the appellant craves leave to add, Modify, amend or delete
any of the grounds of appeal at the time of hearing and all the
above grounds are without prejudice to each other.

2.   Brief facts of the case are as under:
Original assessment was completed under section 143 (3) of the
Income Tax Act, 1961 (the Act) on 21/10/11, at assessed income
of Rs.36,16,840/-, as against returned income of Rs.1,49,600/-.
Against addition, assessee preferred appeal before Ld.CIT(A) who
gave partial relief to assessee. Upon giving effect to order passed
by Ld.CIT (A), addition stood reduced to Rs.24,74,600/-.
2.1. Thereafter Ld.AO observed that during original assessment
proceedings addition of Rs.7,45,000/- was made on account of
loans/unsecured loans raised by assessee. Ld.AO up on perusal
of records realised that the addition was wrongly made at
Rs.7,45,000/-as against Rs. 8,45,500/-. As the mistake was
apparent from record, notice under section 154 of the Act was
issued to assessee on 03/02/15. Ld.AO upon considering the
submissions of assessee made an addition of the difference of the
amount being Rs.1,00,500/-.
2.2. Against order passed by Ld.AO under section 154, assessee
preferred appeals before Ld.CIT (A), who dismissed the assessee's
appeal.
2.3. Against the order of Ld. CIT (A) passed under section 154,
assessee is in appeal before us now.
3. ITA No. 6696/Del/2016
All grounds raised by assessee in this appeal are regarding the
validity of the order passed under section 154.

                                                                                3
                                             ITA 1977/Del/2014 & ITA 6696/Del/16
                                               Sh. Ram Niwas vs. ITO, A.Y. 2009-10

3.1.   Ld.AR submitted that Assessing Officer cannot rectify his
order which has got merged with order of Ld.CIT (A). He
submitted that order passed under section 154 by Ld.AO after
giving effect to order of Ld.CIT(A) is bad in law.
3.2. On the contrary Ld.Sr. DR submitted that totalling mistake
is a mistake apparent on record,         and Assessing Officer was
correct in rectifying it by passing order under section 154 of the
Act. He placed reliance upon the order of authorities below.
4.     We have perused the submissions advanced by both the
sides in the light of the records placed before us.
5.     In our considered opinion to the present facts of this case,
after giving effect of     order passed by Ld.CIT(A), it was not
appropriate on the part of Ld.AO to rectify the mistake in
Assessment Order. In our view once Ld.CIT (A) passes first
appellate order, assessment order merges with the same and any
rectification that needs to be carried out is within the powers of
Ld.CIT (A) in his order.
5.1. Thus in our considered opinion though there is a mistake
apparent in Assessment Order,         proceedings under section 154
initiated by Ld.A.O. is bad in law.
6. Accordingly the grounds raised by assessee in this appeal
stands allowed.


7. ITA No. 1977/Del/2014
Present appeal has been filed by assessee against addition
confirmed by Ld.CIT (A) in the quantum appeal.
7.1.    Ld.AR submitted that Ground No. 1, 2 are general in
nature and therefore do not require any adjudication.

                                                                                4
                                           ITA 1977/Del/2014 & ITA 6696/Del/16
                                             Sh. Ram Niwas vs. ITO, A.Y. 2009-10




7.2. Ground No. 3 & 5
Ld.AR submitted that, additional evidences were filed before
Ld.CIT (A) which were admitted, upon calling for a remand report
from Assessing Officer. However,    he submitted that evidences
filed by assessee were not properly appreciated, as addition of
Rs.20.3 Lacs was confirmed by Ld.CIT (A) on the basis that
assessee failed to submit original family settlement document. He
submitted that at the time when hearing before Ld.CIT (A) was
going on, Shri. Vikrama Yadav in whose custody, original
settlement document was lying was not traceable. Subsequently
it has been submitted that Sh. Vikram Yadav by way of an
affidavit has confirmed original family settlement document being
handed over to assessee on 20/01/14. He submitted that, Ld.CIT
(A) without appreciating these evidences confirmed action of
Ld.AO.
7.3. At the outset Ld.AR prayed for the issue being set aside to
Ld.AO for verification of   relevant documents,         and to decide
issue afresh as per law.
7.4. Ld.Sr.DR did not object for the issue being set aside to Ld.
AO for verification as per law on the basis of the original family
settlement document.
7.5. Accordingly, considering the submissions made by both the
sides, we direct Ld. AO to address this issue once again on the
basis of the family settlement deed filed by assessee in original.
Ld.AO shall carry out all necessary enquiries in order to ascertain









                                                                              5
                                              ITA 1977/Del/2014 & ITA 6696/Del/16
                                                Sh. Ram Niwas vs. ITO, A.Y. 2009-10

the correctness of the documents and then to decide the issue as
per law.
7.6    Accordingly ground No.3 raised by assessee stands
allowed for statistical purposes.
8. Ground No. 4 raised by assessee is regarding the addition of
a sum of Rs.2,95,000/-on account of unsecured loan.
8.1.   Ld.AR submitted that      loan    creditor being Mr.Raghbeer
Sharma was relative of assessee, a military personnel and was
posted in some remote area, because of which assessee could not
produce him at the time of remand proceedings. He submitted
that an affidavit also could not be procured from Mr.Raghbeer
Sharma. Ld.AR submitted that this issue may also be remanded
back to Ld.AO before whom assessee shall produce all relevant
documents    of   establishing   the    creditworthiness,          genuinity,
identity of loan creditors herein.
8.2. Ld.Sr.DR did not object to the submissions of assessee.
8.3. Considering the above the submissions by both the sides,
we are inclined to set aside this issue to Ld.AO. Assessee is
directed to provide all relevant         details   regarding identity,
creditworthiness of Mr.Raghbeer Sharma, and most importantly
genuineness of the transaction before Ld.AO. Ld. AO shall then
verify the details filed by assessee and considered the claim of
assessee as per law.
8.4.   Accordingly this ground raised by assessee stands
allowed for statistical purposes.
9. Ground No. 5 is regarding the documents filed by assessee
which has not been considered by Ld.CIT(A) even after admitting
the same while deciding the issue. We have already dealt with the

                                                                                 6
                                            ITA 1977/Del/2014 & ITA 6696/Del/16
                                              Sh. Ram Niwas vs. ITO, A.Y. 2009-10

relevant documents raised by assessee in relation to ground No.
3. As we have already set aside this issue to Ld.AO for verification
on the basis of the documents filed by assessee, in our
considered opinion separate adjudication on this ground does not
call for.
10. In the result appeal filed by assessee stands allowed for
statistical purposes.
Order pronounced in the open court on 14th August, 2018.


            Sd/-                                   Sd/-
   (R.S.SYAL)                              (BEENA A PILLAI)
VICE PRESIDENT                            JUDICIAL MEMBER

Dt. 14th August, 2018

*Gmv

Copy forwarded to: -
1.  Appellant
2.  Respondent
3.  CIT
4.  CIT(A)
5.  DR, ITAT

                   -    TRUE COPY     -

                                                 By Order,




                                            ASSISTANT REGISTRAR
                                              ITAT Delhi Benches

                                                                               7
                                                      ITA 1977/Del/2014 & ITA 6696/Del/16
                                                        Sh. Ram Niwas vs. ITO, A.Y. 2009-10



S.No.                   Details                 Date
 1.     Draft dictated on                      14.08.18
 2.     Final Draft placed before author      14.08.18
        Draft proposed & placed before the
 3.
        Second Member
        Draft discussed/approved by Second
 4.
        Member
        Approved Draft comes to the Sr.
 5.
        PS/PS
 6.     Kept for pronouncement
 7.     Order uploaded on
 8.     File sent to Bench Clerk
        Date on which the file goes to Head
 9.
        Clerk
10.     Date on which file goes to A.R.
11.     Date of Dispatch of order




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