Deletion of addition made under section 68 of IT Act 1961 must accompanied by proper supporting

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH “A” NEW DELHI

BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER

AND

SHRI C.M. GARG, JUDICIAL MEMBER

I.T.A. No. 889/Del/2012

A.Y. : 2006-07

Income Tax Officer,

Ward 25(4),

New Delhi

(Appellant)

vs.

Smt. Anaro Devi,

W/o Shri Ajit Singh,

Village- Paprawat,

P.O. Najafgarh,

New Delhi – 110 043

(PAN/GIR NO. : AIFPN3491H)

(Respondent)

AND

C.O. No. 322/Del/2012

(In ITA No. 889/Del/2012)

A.Y. 2006-07

Smt. Anaro Devi,

C/o S.B. Garg & Co., CAs 20/17,

Shakti Nagar,

Delhi – 110 007

(Appellant)

vs.

 ITO, WARD-25(4),

NEW DELHI

 (Respondent)

Assessee by: Sh. S.B. Garg, Adv., Sachin Garg, CA

Department by: S h. Bhim Singh, Sr. D.R.

ORDER

PER BENCH

This appeal by the Revenue and Cross Objection by the assessee emanate out of order of the Ld. Commissioner of Income Tax (Appeals-XXIV), New Delhi pertains to assessment year 2006-07.

2. The issues raised in the Revenue’s appeal read as under:-

“i) On the facts and circumstances of the case, the Ld. Commissioner of Income Tax (A) erred in deleting the addition of Rs. 45,00,000/- being unexplained cash credit u/s. 68 of the I.T. Act, 1961.

ii) On the facts and circumstances of the case, the Ld. Commissioner of Income Tax (A) erred in accepting self serving documents not corroborated or examined during assessment proceedings.

iii) Set aside the order of the Ld. Commissioner of Income Tax (A) and restore the matter back to the Assessing Officer to reexamine fresh evidence in a holistic manner.

The appellant craves the right to add any other ground of appeal.”

3. The issues raised in the Assessee’s Cross Objection read as under:-

“1. The appeal is not maintainable, particularly in view of Board’s Instructions.

2. The purported income escaping assessment, for which proceedings u/s. 147 of the Income Tax Act, 1961 (hereafter ‘the Act’) were initiated, was not found to have escaped assessment and thus no addition on that ground was made in the assessment; and therefore, in view of law laid down by the Hon’ble Jurisdictional High Court in the case of Ranbaxy Laboratories Limited vs. C.I.T. (2011) 336 ITR 136 (Del.), the assessment is without jurisdiction.

3. The initiation of proceedings u/s. 147 of the Act is bad in law, particularly in view of the fact that there is no material on record, or even any reference to any such material, which justifies the action u/s. 147 of the Act.”

4. We have heard both the counsel and perused the records. We find that in the Cross Objection assessee has raised ground that the Appeal is not maintainable that there was no proper jurisdiction, as no addition has been made on the ground on which the reopening was done and that further there was no material on record in support of initiation of proceedings u/s. 147 of the Act. We find that that the above grounds were not taken before the Ld. Commissioner of Income Tax (A). Hence, there is no adjudication on these aspects by the First Appellate Authority.

5. In the Revenue’s Appeal also we find that in ground no. 3, it has been agitated that Ld. Commissioner of Income Tax (A)’s order be set aside and matter restore back to the Assessing Officer to re-examine fresh evidence in a holistic manner.

6. Upon careful consideration, we find that interest of justice will be served, if the issues raised are remitted back to the file of the Assessing Officer and the Assessing Officer shall consider all aspects of the matter raised in this case. We order and hold accordingly.

7. In the result, the appeal filed by the Revenue and Cross Objection filed by the Assessee stand allowed for statistical purposes.

Order pronounced in the Open Court on 01/5/2013.

Sd/- Sd/-

[C.M. GARG] [SHAMIM YAHYA]

JUDICIAL MEMBER ACCOUNTANT MEMBER

Date:- 01/5/2013

SRBHATNAGAR

Copy forwarded to: -

1. Appellant

2. Respondent

3. CIT

4. CIT (A)

5. DR, ITAT

TRUE COPY

By Order,

Assistant Registrar,

ITAT, Delhi Benches