Ali Mohammad, New Delhi vs Department Of Income Tax

This appeal by the Revenue is directed against the order passed by

the CIT(A) on 19.3.2013 in relation to the assessment year 2007-08. ITA No.2801/Del/2013

2. We have heard the ld. DR and perused the relevant material on

record. There is no appearance from the side of the assessee despite

notice. As such, we are proceeding to dispose of this appeal ex parte

qua the assessee.

3. Briefly stated, the facts of the case as given in the assessment order

are that the assessee is an estate agent and is in the construction

business. The AIR information was received about the assessee

purchasing some immovable property at Rs.34,70,000/-. The assessee

paid only a sum of Rs.5 lac by cheque. On being called upon to explain

where from the additional amount of Rs.29.70 lac was paid, the assessee

did neither tender any explanation nor furnish any details about the

remaining payments. This led to the making of addition of Rs.29.70 lac.

The ld. CIT(A) deleted the addition.

4. After perusing the relevant record and hearing the ld. DR, it is

observed that the AO proceeded to make addition for the alleged

undisclosed payment of Rs.29.70 lac in respect of the property

purchased by the assessee on the basis of the AIR information. On the

2 ITA No.2801/Del/2013

other hand, the ld. CIT(A) deleted the addition by observing in para 3

that the addition was made by the AO 'merely on the basis of difference

in valuation taken by the Registrar Office for registration of documents

and consideration shown by the assessee.' The ld. CIT(A) further

observed that the AO had applied section 50C which was not applicable

in the hands of the vendor. We are unable to ascertain the veracity of

the reasoning given by the ld. CIT(A) for deleting the addition for the

reason that there is no reference whatsoever in the assessment order

about the addition having been made on account of difference between

valuation taken by the Registrar office and the declared sale

consideration. The assessment order divulges that there was AIR

information that the assessee purchased immovable property for

Rs.34.70 lac against which only a payment of Rs.5 lac was declared in

the books of account and the remaining amount of Rs.29.70 lac

remained undisclosed. It appears that the ld. CIT(A) got swayed with

the submissions advanced on behalf of the assessee without properly

considering the assessment order on this point. In para 3, the ld. CIT(A)

has referred to some `Remand report' of the AO, but, the contents of 3 ITA No.2801/Del/2013

such remand report have not been discussed. The Revenue, through

Ground no. 5, is aggrieved against the admission of additional evidence

in violation of Rule 46A of the Income-tax Rules, 1962. When the

assessee has chosen not to appear to explain his point of view and there

is apparent contradiction in the impugned and the assessment order, we

are of the considered opinion that the ends of justice would meet

adequately if the impugned order on this score is set aside and the matter

is restored to the file of AO. We order accordingly and direct the AO to

decide this issue afresh as per law, after allowing a reasonable

opportunity of being heard. Needless to say, the assessee will be at

liberty to lead any fresh evidence in his defence in such fresh assessment

proceedings.

5. In the result, the appeal is allowed for statistical purposes.

The order pronounced in the open court on 06.05.2015.

Sd/- Sd/-

[A.T. VARKEY] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER

Dated, 06th May, 2015.

4 ITA No.2801/Del/2013

dk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.

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