SMT. MANJU KEDIA, V. A.C.I.T. 2(1), RAIPUR (CG)

ITA 107/BIL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2579 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 21-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R B DOSHI
• Keywords: Salary income; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.107/RPR/2015 ASSESSMENT YEAR : 2004-05 MANJU KEDIA, KEDIA BHAWAN, MANDI ROAD, BALOD BAZAR, DISTT. RAIPUR, RAIPUR (CG). VS. ACIT- 2(1), RAIPUR (CG). PAN : AEVPK0722L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.B. DOSHI, CA DEPARTMENT BY : SHRI SANJAY KUMAR, DR DATE OF HEARING : 10-08-2018 DATE OF PRONOUNCEMENT : 16-08-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 26.03.2015 OF THE LD. CIT(A)- 1, RAIPUR (CG) RELATI NG TO ASSESSMENT YEAR 2004-05. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND FILED HER RETURN OF INCOME ON 31.03.2005 DECLARING TOTAL INCOME OF RS.1,39,040/-. ON THE BASIS OF SEARCH CARRIED OUT AT THE PREMISES OF SHRI RAMESH KEDIA AND OTHERS ON 23.03.2006, THE NOTICE U/S 153C WAS ISSUED IN TH E NAME OF THE ASSESSEE. THE ASSESSEE EARNED INCOME FROM SALARY AND INCOME FROM OTHER SOURCES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFF ICER NOTED THAT THE ASSESSEE 2 ITA NO.107/RPR/2015 HAS SHOWN A CREDIT BALANCE IN HER BALANCE SHEET IN THE NAME OF SHRI RAMNARAYAN PANDEY, BALODA BAZAR RS.1,31,000/- AND SHRI DURGAVATI PANDEY, BALODA BAZAR RS.1,21,000/-. THE ASSESSING OFFICE R ASKED THE ASSESSEE TO SUBSTANTIATE THE CREDITWORTHINESS AND GENUINENESS O F THE LOAN TAKEN IN CASH. SINCE THE ASSESSEE FAILED TO SUBSTANTIATE WITH PROP ER DOCUMENTARY EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER, THE ASSE SSING OFFICER MADE ADDITION OF RS.2,52,000/- U/S 68 TO THE TOTAL INCOME OF THE ASS ESSEE. 3. IN APPEAL, THE LD. CIT(A) DISMISSED THE APPEAL F ILED BY THE ASSESSEE. 4. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S OF APPEAL :- 1. LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS.2 ,52,000/- MADE U/S 68, ON ACCOUNT OF AMOUNT RECEIVED BY APPELLANT AS ADVANCE AGAINST SALE OF LAND. THE ADDITION MADE BY THE A.O. AND SUSTAINED BY CIT(A) I S NOT JUSTIFIED. 2. WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF APPEAL , THE A.O. ERRED IN INVOKING SECTION 153C & IN PASSING ASSESSMENT ORDER. THE NO TICE U/S 153C ISSUED BY THE A.O. AND THE CONSEQUENT ASSESSMENT ORDER IS ILLEGAL, WIT HOUT JURISDICTION, NOT IN ACCORDANCE WITH LAW. 3. THE APPELLANT RESERVES THE RIGHT TO ADD, AMEND O R ALTER ANY OF THE GROUND/S OF APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT BASED ON ANY INCRIMINATING MATERIAL. THEREFORE, THE PROVISIONS OF SECTION 153C ARE NOT APPLICABLE TO TH E FACTS OF THE PRESENT CASE. SO FAR AS MERIT OF THE CASE IS CONCERNED, HE SUBMITTED THAT THE ASSESSEE HAS GIVEN CONFIRMATION LETTERS FROM THE TWO LENDERS. THEREFO RE, THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) I S NOT JUSTIFIED. 3 ITA NO.107/RPR/2015 6. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDERS OF THE ASSESSING OFFICER AND THE LD. CIT(A). REFERRING TO THE CONFIRMATION LETTERS FILED BY THE ASSESSEE IN THE PAPER BOOK, HE SUBMITTED THA T THESE ARE MERE PAPERS AND ARE SELF-SERVING DOCUMENTS AND DO NOT SUBSTANTIATE THE CREDITWORTHINESS OF THE LOAN CREDITORS. THEREFORE, THE ADDITION MADE BY TH E ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) IS FULLY JUSTIFIED. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS TH E CASE OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN ABSENCE OF ANY INCRIMINATING MATER IAL RELATING TO THIS PARTICULAR YEAR, INVOKING OF PROVISIONS OF SECTION 153C IS BAD IN LAW. A PERUSAL OF THE ORDERS OF THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) SHOWS THAT THE BASIS OF ADDITION DOES NOT REFER TO ANY INCRIMINATING MATERI AL. ALTHOUGH, THE ASSESSEE HAS CHALLENGED THE LEGAL GROUND BEFORE THE LD. CIT( A) AS PER GROUND OF NO.2, HOWEVER WE FIND THERE IS NO ADJUDICATION ON THIS IS SUE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUS TICE, WE DEEM IT PROPER TO RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRESH IN LIGHT OF THE LATEST DECISION OF THE HONB LE SUPREME COURT IN THE CASE OF CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY. THE A SSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 4 ITA NO.107/RPR/2015 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH AUGUST, 2018. SD/- SD/- (SUCHITRA KAMBLE) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16-08-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., RAIPUR. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY ITAT, RAIPUR