Sh. Atul Bansal, Agra V. I.T.O.-4(1), Agra

CO 56/AGR/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7087 (ITAT-AGRA)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-05-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 29-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP KISHORE AGARWAL
• Keywords: Reopening of assessment; Opportunity of being heard; Reassessment proceedings
• Section: 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 288/AGRA/2011 ASSTT. YEAR : 2001-02 INCOME-TAX OFFICER, VS. SH. ATUL BANSAL, 4(1), AGRA. F-13, PROFESSOR COLONY, AGRA. (PAN: ABZPB 3974 P) C.O. NO. 56/AGRA/2011 (IN ITA NO. 288/AGRA/2011) ASSTT. YEAR : 2001-02 SH. ATUL BANSAL, VS. INCOME-TAX OFFICER, F-13, PROFESSOR COLONY, AGRA. 4(1), AGRA. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI PRADEEP SINGH GAUTAM, JR. DR RESPONDENT BY : SHRI ROOP KISHORE AGARWAL DATE OF HEARING : 22.05.2012 DATE OF PRONOUNCEMENT OF ORDER : 22.05.2012 ORDER PER BHAVNESH SAINI, J.M.: THE DEPARTMENTAL APPEAL AS WELL AS THE CROSS-OBJEC TION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT (A)-II, AGRA DATED 02.05.2011 FOR THE ASSESSMENT YEAR 2001-02. THE REVENUE IN ITS APPEAL CHALLENGED THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION OF RS.13,72,377/- M ADE BY THE AO U/S. 68 OF THE IT ACT CONSIDERING THE SAME AS UNEXPLAINED INCOME OF T HE ASSESSEE ON ACCOUNT OF SALE ITA NO. 288 & CO 56/AGRA/2011 2 CONSIDERATION OF SHARES. THE ASSESSEE IN THE CROSS- OBJECTION SUPPORTED THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION ON MERITS A ND ALSO CHALLENGED THE ORDER OF THE LD. CIT(A) IN UPHOLDING THE INITIATION OF RE-AS SESSMENT PROCEEDINGS U/S. 147 OF THE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE INFO RMATION WAS RECEIVED FROM INVESTIGATION WING, AGRA THAT THE ASSESSEE HAD TAKE N BOGUS ENTRIES IN THE FINANCIAL YEAR 2000-01 AND RECEIVED THE AMOUNTS OF RS.2,49,55 0/-, RS.1,49,730/-, RS.2,49,550/- AND RS.2,99,460/- ON VARIOUS DATES TH ROUGH DIFFERENT DEMAND DRAFTS ISSUED BY M/S. NORTH INDIA SECURITIES PVT. LTD. AND THE SAME HAVE BEEN DEPOSITED BY THE ASSESSEE IN HIS ACCOUNT NO. 4956 WITH VIJAYA BANK, JEONI MANDI, AGRA. THE AO, ACCORDINGLY, REOPENED THE ASSESSMENT BY RECORDI NG THE REASONS U/S. 148 OF THE IT ACT AND AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE AND THE MATERIAL ON RECORD HELD THAT THE ASSESSEE FAILED TO PROVE THE S ALE OF SHARES AND GENUINENESS OF THE RECEIPTS OF MONEY FROM SALE OF SHARES. THEREFOR E, THE ENTIRE AMOUNT OF RS.13,72,377/- WAS TREATED AS INCOME FROM UNDISCLOS ED SOURCES AND ADDITION U/S. 68 WAS ACCORDINGLY MADE. THE ASSESSEE CHALLENGED TH E RE-ASSESSMENT PROCEEDINGS BEFORE THE LD. CIT(A). THE LD. CIT(A), HOWEVER, FOU ND THAT IN SIMILAR CASES OF BOGUS SALES AND PURCHASES IN THE CASE OF BRIJ MOHAN AGARWAL, THE WRIT PETITION HAS BEEN DISMISSED BY THE HONBLE HIGH COURT. THEREFORE , FOLLOWING THE SAME ORDER, ITA NO. 288 & CO 56/AGRA/2011 3 THE LD. CIT(A) HELD THAT REASSESSMENT PROCEEDINGS U /S. 148 ARE INVALID AND THAT GROUND WAS DISMISSED. AS REGARDS THE MERITS OF THE CASE, THE SUBMISSIONS OF THE ASSESSEE IN DETAILS IS REPRODUCED IN THE APPELLATE ORDER AND THE LD. CIT(A) FOLLOWING THE ORDER OF ITAT, AGRA BENCH IN THE CASE OF RAJESH KUMAR GARG AND OTHER DECISIONS, DELETED THE ADDITIONS. THE ASSESSE E AS WELL AS THE REVENUE HAVE FILED THE CROSS-OBJECTION AND DEPARTMENTAL APPEAL A BOVE. 3. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW THAT THE ENTIRE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). THE LD. DR CONTENDED THAT THE LD. CIT(A) HAS NOT GIVEN ANY FIN DING OF FACT WHILE DELETING THE ADDITION AND HAS NOT BROUGHT ANYTHING ON RECORD AS TO HOW THE FACTS OF THE CASE OF THE ASSESSEE ARE IDENTICAL WITH THE CASE OF RAJESH KUMAR GARG. THEREFORE, THE LD. CIT(A) SHOULD HAVE PASSED SPEAKING ORDER ON MERITS INSTEAD OF FOLLOWING THE ORDER OF THE TRIBUNAL WITHOUT DISCUSSING THE EVIDENCES AN D MATERIAL ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE IS SUE OF PROCEEDINGS U/S. 148 OF THE IT ACT HAVE BEEN DECIDED BY THE LD. CIT(A) WITHOUT GIVING ANY FINDING IN THE CASE OF THE ASSESSEE AND MERELY FOLLOWING THE ORDER IN T HE CASE OF BRIJ MOHAN AGARWAL, DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. TH EREFORE, THE LD. CIT(A) IS BOUND TO PASS THE ORDER ON MERITS DISCUSSING THE FACTS OF THE CASE AND MATERIAL ON RECORD. ON GOING THROUGH THE FACTS OF THE CASE AND FINDING OF THE IMPUGNED ORDER IN THE ITA NO. 288 & CO 56/AGRA/2011 4 LIGHT OF THE SUBMISSIONS OF THE PARTIES, WE ARE OF THE VIEW THAT THE LD. REPRESENTATIVES OF BOTH THE PARTIES HAVE RIGHTLY CO NTENDED THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF LD. CIT (A) ON BOTH THE ISSUES. ACCORDING TO SECTION 250 (6) OF THE IT ACT, THE LD. CIT(A) IS REQUIRED T O MENTION THE POINTS FOR DETERMINATION AND THE REASONS FOR DECISION IN THE A PPELLATE ORDER. AS REGARDS THE REOPENING OF ASSESSMENT, THE LD. CIT(A) REPRODUCED THE SUBMISSIONS OF THE ASSESSEE IN THE APPELLATE ORDER, BUT WITHOUT GIVING ANY FINDING ON THE SUBMISSIONS OF THE ASSESSEE, MERELY FOLLOWED THE ORDER IN THE C ASE OF BRIJ MOHAN AGARWAL AND WITHOUT GIVING ANY REASONS FOR DECISION, DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE CHALLENGING THE REOPENING OF THE ASSESSMEN T. SIMILARLY, ON MERITS, THE LD. CIT(A) REPRODUCED THE WRITTEN SUBMISSIONS OF THE AS SESSEE IN THE APPELLATE ORDER AND WITHOUT DISCUSSING THE FACTS OF THE CASE IN THE LIGHT OF THE ORDER IN THE CASE OF RAJESH KUMAR GARG, MERELY NOTED THAT IN SIMILAR FAC TS, THE TRIBUNAL HAS DELETED THE ADDITIONS. THE LD. CIT(A) WITHOUT BRINGING THE IDEN TICAL FACTS OF BOTH THE CASES AND WITHOUT GIVING ANY REASONS FOR DECISION, DELETED TH E ADDITION ON MERITS. THEREFORE, THE LD. CIT(A) FAILED TO PASS ANY REASONED ORDER AN D AS SUCH, ON BOTH THE ISSUES, THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). MAY BE, THE ISSUE MAY BE COVERED IN FAVOUR OF THE ASSESSEE, BUT IT IS THE DUTY OF THE LD. CIT(A) TO BRING THE FACTS AND EVIDENCE ON RECORD AND IN THE A PPELLATE ORDER AND DISCUSS THE FACTS IN THE OTHER CASES, WHICH HE HAS RELIED UPON FOR THE PURPOSE OF FOLLOWING THE ITA NO. 288 & CO 56/AGRA/2011 5 ORDER OF THE TRIBUNAL AND ONLY BY CONSIDERING THE F ACTS AND EVIDENCE ON RECORD SHOULD COME TO THE FINDING THAT THE ISSUE IS COVERE D IN FAVOUR OF THE ASSESSEE. IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE THE ORDE R OF THE LD. CIT(A) AND RESTORE BOTH THE ABOVE ISSUES TO HIS FILE WITH THE DIRECTIO N TO RE-DECIDE BOTH THE ISSUES ABOVE ON MERITS BY GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE LD. CIT(A) SHALL PASS A REASON ED ORDER. 4. IN THE RESULT, THE DEPARTMENTAL APPEAL AS WELL A S THE CROSS OBJECTION OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.05.2012 SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY