Upkar Singh, Ludhiana V. DCIT, Ludhiana

ITA 1000/CHANDI/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6759 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 21-02-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 19-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH B, CHANDIGARH BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, JUDICIAL MEMBER ITA NO.1000/CHANDI/2016 ASSESSMENT YEAR: 2005-06 UPKAR SINGH VS. DCIT PROP. M/S NEW SWAN ENTERPRISES CIRCLE V 622 INDL AREA B LUDHIANA LUDHIANA PAN NO. ACFPS4283C (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI. MANJIT SINGH DATE OF HEARING : 25/09/2017 DATE OF PRONOUNCEMENT : 27/09/2017 ORDER PER DR. B.R.R. KUMAR THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF LD. CIT(A)-2, LUDHIANA, DATED 01/06/2016. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT THE ORDER PASSED BY THE COMMISSIONER(AP PEALS) CONFIRMING THE ORDER OF THE ASSESSEMENT IS ARBITRARY , ERRONEOUS , ILLEGAL AND PRESERVE AND HAS BEEN PASSED WITHOUT APPLICATION OF MIN OF THE MIND. NONE OF THE ARGUMENTS RAISED IN COURSE OF THE APPELLATE PROCEEDINGS AS WE LL AS VARIOUS MATERIAL AND EVIDENCES INCLUDING REMAND REPORT GIVEN BY ASSESSIN G OFFICER WERE REFERRED TO AND /OR DEALT CORRECTLY BY THE COMMISSIONER(APPEALS ) WHILE PASSING THE ORDER . 2. FOR THAT THE COMMISSIONER (APPEALS) PASSED THE O RDER BY IGNORING THE RELEVANT MATERIAL AND EVIDENCES AVAILABLE ON RECORD BY RELYING ON ERRONEOUS FACTS AND ON IRRELEVANT AND EXTRANEOUS CONSIDERATIO N. VARIOUS ALLEGATIONS , PURPORTED FINDING AND OBSERVATION AGAINST THE APPEL LANT HAVE BEEN MADE WITHOUT ANY BASIS OR MATERIAL AND ON MERE SUSPICION , SURMISES AND CONJECTURES . 3. FOR THAT THE COMMISSIONER(APPEALS) ERRED IN CONF IRMING THE ACTION AND SUSTAINING THE ORDER OF THE ASSESSING OFFICER IN AD DING A SUM OF RS 5,00,000/-AS INCOME FROM UNEXPLAINED AND IN GENUINE INVESTMENT M ADE AS REPAYMENT OF LOAN TO M/S INDO JAWA EXPORTS(P) LTD AND HELD IT WR ONGFULLY AND ILLEGALLY. THAT THE COMMISSIONER (APPEALS) HAD ARRIVED AFTER IGNORING R ELEVANT EVIDENCES AND MATERIAL ON RECORD AND BY RELYING ON ERRONEOUS FACT S AND IRRELEVANT MATERIAL AND ON EXTRANEOUS CONSIDERATION. 2 4. IN ANY CASE AND WITHOUT PREJUDICE TO THE ABOVE GROU NDS, THE AUTHORITIES BELOW WERE NOT LEGALLY JUSTIFIED IN LIGHTLY BRUSHIN G ASIDE THE CONTENTIONS RAISED BY THE ASSESSE DURING THE APPELLANT PROCEEDINGS WITHOU T RAISING ADDITIONAL GROUNDS OF APPEAL THAT NOTICE U/S 143(2) WAS NOT ISSUED UPO N THE ASSESSE , THEREFORE ORDER U/S 144 WAS INFECTIOUS AND ILLEGAL. 5.THAT THE COMMISSIONER (APPEALS) AS WELL AS THE AS SESSING AUTHORITY IGNORED TO VERIFY THE MATTER FROM THE AUDITED BALANCE SHEET AS WELL AS TAX AUDIT REPORT OF THE CHARTERED ACCOUNTANT ALREADY FILED BY THE ASSES SE, WHICH WAS ALREADY IN THE RECORDS OF THE INCOME TAX OFFICE . THAT THE RE-PAYM ENT MADE HAD BEEN REFLECTED IN THE AUDITED BALANCE SHEET FILED BY THE ASSESSE , AND WRONGFULLY AND ERRONEOUSLY HELD THE SAME AS EXPLAINED AND IN GENUI NE INVESTMENTS MADE AS REPAYMENT OF LOAN . 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED RETURN OF INCOME ON 31/10/2005 DECLARING TOTAL INCOME OF RS. 56,83,148/ -. THE CASE OF THE ASSESSEE HAS BEEN REOPENED U/S147, BASED ON THE INFORMATION RECEIVED FROM THE ITO, WARD (11)4, NEW DELHI THAT THE ASSESSEE HAS REPAID RS. 5,00,000/- TO M/S JAWA EXPORTS (P) LTD. IN MAY, 2004. ACCORDINGLY NOTICE UNDER SECTION 147 WAS ISSUED. AFTER PARTIAL COMPLIANCE TO THE NOTICES BY THE ASSE SSEE, THE CASE WAS COMPLETED UNDER SECTION 144 MAKING AN ADDITION OF R S. 5,00,000/- TO THE ASSESSEES INCOME ON ACCOUNT THE PAYMENT MADE TO M /S JAWA EXPORTS (P) LTD. 4. AGGRIEVED WITH THE ADDITION THE ASSESSEE FILED A PPEAL BEFORE THE LD. CIT(A). 5. DURING THE HEARING BEFORE THE LD. CIT(A) THE ASS ESEE HAS SOUGHT ADMISSION OF DOCUMENTS UNDER RULE 46A. DURING THE PROCEEDING S REMAND REPORT WAS ALSO OBTAINED BY THE LD. CIT(A). ON OBTAINING THE REMAND REPORT , THE LD.CIT(A) HAS PASSED THE ORDER CONFIRMING THE ADDITION. WE HAVE P ERUSED THE RECORD AVAILABLE BEFORE US. NO EVIDENCE OF THE ASSESEE GET TING AN OPPORTUNITY BEFORE THE LD. CIT(A) WAS AVAILABLE ON RECORD. 6. KEEPING IN VIEW THE DETAILS ON ON RECORD AND AL SO THE REASONS OF ADDITION MADE BY THE ASSESSING OFFICER, WE FEEL THAT JUSTICE WOULD BE MET IF THE CASE IS SET ASIDE TO THE FILE OF THE AO FOR GIVING AN OPPOR TUNITY TO THE ASSESSEE TO REPRESENT HIS CASE PROPERLY BEFORE THE AUTHORITIES. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE FULLY AND TIMELY WITH THE AO WITHOUT M ISUSING THE OPPORTUNITY GIVEN TO HIM. 3 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DIVA SINGH) (DR. B.R.R. KUMA R) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 27/09/2017 AG COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR