Adesh Bhavarilal Khabiya, Nashik V. Income-tax Officer,

ITA 1073/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0396 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Non compliance
• Section: 142(1); 133(6); 144

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 1073 /PN/20 14 / ASSESSMENT YEAR : 200 9 - 10 ADESH BHAVARILAL KHABIYA, AT POST: LAHANI VANI, TAL: DINDORI, NASHIK PAN : ABKPK8251C . APPELLANT VS. INCOME TAX OFFICER, WARD 1(3), NASHIK . RESPONDENT ASSESSEE BY : NONE DEPARTMENT BY : SHRI.SUHAS KULKARNI / DATE OF HEARING : 2 4 - 11 - 2016 / DATE OF PRONOUNCEMENT : 30 - 11 - 2016 / ORDER PER ANIL CHATURVEDI, AM: THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER PASSED BY LD.CIT(A) - 1, NASHIK DATED 03.03.2014 FOR THE A.Y. 2009 - 10. ITA NO.1073 / PN / 2014 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORDS AS UNDER: - ASSESSEE IS AN INDIVIDUAL WHO IS STATED TO BE A TRADER / RETAILER. ASSESSEE FILED H IS RETURN OF INCOME FOR A.Y. 2009 10 ON 30.02.2010 DECLARING TOTAL INCOME OF RS.54,460/ - . THE CASE WAS SELECTED FOR SCRUTINY. THEREAFTER, FIRST NOTICE U/S 143(2) WAS ISSUED ON 17.08.2010 AND SERVED ON 20.08.2010 . ASSESSEE DID NOT RESPOND TO THE NOTICE. THEREAFTER, FURTHER NOTICES ALONGWITH THE QUESTIONNAIRE WERE ISSUED TO THE ASSESSEE, BUT THEY REMAINED UNCOMPLIED BY THE ASSESSEE. AO VIDE LETTER DATED 23.11.2011 AGAIN ASKED HIM TO EXPLAIN THE SOURCE OF CASH DEPOSITS OF RS.15,20,500/ - & FURTHER INFORMED THAT IN CASE THE ASSESSEE FAILS TO APPEAR AND COMPLY WITH REQUIREMENTS , ASSESSMENT WOULD BE FRAMED U/S 144 OF THE ACT. AO NOTED THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE. 2 HE, THEREAFTER, FRAMED ASSESSMENT U/S 144 VIDE ORDER DATED 23.12 .2011 AND DETERMINED THE TOTAL INCOME AT RS.15,88,630/ - . AGGRIEVED BY THE ORDER OF A O ASSESSEE CARRIED THE MATTER BEFORE THE CIT ( A) VIDE ORDER DATED 03.03.2014 ( IN APPEAL NO.NSK/CIT(A) - I/230/2012 13 .) U PHELD THE ORDER OF AO BY HOLDING AS UNDER. 7. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER, SUBMISSION OF THE APPELLANT AND THE AVAILABLE RECORDS INCLUDING THE ASSESSMENT FOLDER FOR A.Y. 2009 10. THE APPELLANT HAS FILED A RETURN OF INCOME SHOWING NET INCOME OF RS.54,460/ - UNDER PRESUMPTIVE TAX (44AF) ON 30/03/2010. THE AO ISSUED NOTICE U/S 143(2) DATED 17/08/2010 FIXING THE CASE FOR 10/09/2010 . THIS NOTICE WAS DULY SERVED ON THE APPELLANT ON THE APPELLANT ON 20/08/2010. THE AO ISSUED ANOTHER NOTICE U/S 143(2) DATED 10/ 02/2011 ALONGWITH A DETAILED QUESTIONNAIRE FIXING THE CA S E FOR 08/03/2011. THE AO HAD ALSO ISSUED NOTICE U/S 142(1) ON 10/02/2011. THERE WAS NO COMPLIANCE BY THE APPELLANT IN RESPONSE OF THE ABOVE NOTICES. THE AO THEREAFTER ISSUED ANOTHER NOTICE U/S 142(1) DATED 21/07/2011 ALONGWITH A QUESTIONNAIRE ASKING INTERALIA THE DETAILS OF APPELLANTS BANK ACCOUNTS. THE AO HAD ALSO ISSUED NOTICE U/S 274 R.W.S 271(1)(B) OF THE I.T.ACT SHOULD NOT BE LEVIED IN VIEW OF HIS NON COMPLIANCE TO THE EARLIER NOTICES. I FIND FROM THE RECORD THAT THESE NOTICES WERE ALSO NOT COMPLIED BY THE APPELLANT. I FIND THAT ONE SHRI MAHESH A. KOKATE, C.A. ATTENDED THE OFFICE OF THE AO ON 02/11/2011 AND FILED A COPY OF INCOME TAX RETURN ITA NO.1073 / PN / 2014 ALONGWITH COMPUTATION OF INCOME VIDE LETTER DATED 02/11/2011. IN THE SAID LETTER IT WAS STATED THA T OTHER REQUISITE DOCUMENT WILL BE SUBMITT ED TO AOS OFFICE WITHIN A WEEK. SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE APPELLANT, AO VIDE ORDER DATED 22/11/2011 PASSED AN ORDER U/S 271(1)(B) OF THE I.T. ACT LEVYING PENALTY OF RS.10,000/ - . THE AO THEREAFTER GAVE ANOTHER OPPORTUNITY TO THE APP ELLANT VIDE LETTER DATED 23/11/2011 MENTIONING THEREIN THAT IN ABSENCE OF THE REQUISITE INFORMATION ASSESSMENT ORDER WILL BE FINALIZED U/S 144 OF THE I.T. ACT, 1961 BY MAKING AN ADDITION OF RS.15,20,500/ - ON ACCOUNT OF CASH DEPOSITS IN VARIOUS ACCOUNTS HEL D BY THE APPELLANT IN VANI MERCHANTS CO - OPERATIVE BANK. THE APPELLANT WAS REQUIRED TO ATTEND AOS OFFICE ON 30/11/2011 ALONGWITH SUPPORTING DOCUMENTS IN REGARD TO THE ABOVE REFERRED CASH DEPOSITS OF RS.15,20,500/ - THE AO HAD ALSO SOUGHT INFORMATION FROM THE MANAGER, VANI MERCHANTS CO - OPERATIVE BANK LTD. U/S 133(6) OF THE I.T. ACT AND GOT THE DETAILS OF APPELLANTS INCOME AT RS.15,88,627/ - WHICH INTERALIA INCLUDED AN ADDITION OF RS.15,20,500/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN VANI MERCHANTS CO - OP ERATIVE BANK AND RS.13,677/ - ON ACCOUNT OF DISALLOWANCE OF DEDUCTION CLAIMED BY THE APPELLANT IN THE RETURN OF INCOME. THE APPELLANT HAD FILED A APPEAL BEFORE ME AGAINST THE ASSESSMENT ORDER OF THE AO. EVEN THIS APPEAL WAS FILED QUITE LATE BY THE APPELL ANT. HOWEVER, THE DELAY IN FILING THE APPEAL HAS SINCE BEEN CONDONED. DURING THE APPELLATE PROCEEDINGS, THE APPELLANT HAS STATED THAT CASH DEPOSITS OF RS.15,20,500/ - IN VANI MERCHANTS CO - OPERATIVE BANK LTD. WAS OUT OF RECEIPTS ON ACCOUNT OF HIRE CHARGES OF JCB, AGRICULTURAL INCOME AND ADVANCE RECEIVED AGAINST PROPOSED SALE OF JCB. SINCE THE APPELLANT HAD NOT FURNISHED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM EITHER IN THE ASSESSMENT PROCEEDINGS OR IN THE APPELLATE PROCEEDINGS BEFORE ME, THE APPEL LANT WAS GIVEN AN OPPORTUNITY VIDE LETTER DATED 14/02/2014 ASKING HIM TO PROVIDE DETAILS OF REGISTRATION AND SALE OF DOCUMENTS OF THE JCB. THE APPELLANT WAS ASKED TO FURNISH THESE DETAILS BY 19/02/2014. FURTHER, IT WAS MADE CLEAR TO THE APPELLANT THAT NO ADJOURNMENT WILL BE GIVEN AND IN CASE OF NON COMPLIANCE, APPEAL WILL BE FINALIZED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. WHILE THERE WAS NO EVIDENCE ON RECORD WITH REGARD TO OWNERSHIP OF JCB, NO DETAILS OF HIRING CHARGES OF JCB WERE EITHER FURNISH ED BY 3 OWNERSHIP OF JCB, NO DETAILS OF HIRING CHARGES OF JCB WERE EITHER FURNISH ED BY THE APPELLANT. THE APPELLANT DID NOT ATTEND THE OFFICE ON 14/02/2014. HE HAS ALSO NOT FUR NISHED ANY DETAILS IN SUPPORT OF HIS CLAIM THAT THE CASH DEPOSITS IN BANK WERE OUT OF THE AGRICULTURAL INCOME, ADVANCE RECEIVED AGAINST SALE OF JCB AND JCB HIR E CHARGES. THE APPELLANT HAS NOT FURNISHED ANY DOCUMENT IN SUPPORT OF HIS LAND HOLDING I.E. 7/12 EXTRACTS, ETC. TO SUPPORT AGRICULTURAL INCOME. NO DETAILS WITH REGARD TO HIRE CHARGES OF THE JCB WERE FURNISHED TO EXPLAIN THE CASH DEPOSITS IN THE BANK. IN ABSENCE OF THE REGISTRATION AND SALE DOCUMENTS OF THE JCB, APPELLANT CONTENTION THAT ADVANCE WAS RECEIVED AGAINST SALE OF JCB AND THE SAME WAS DEPOSITED IN THE BANK IS NOT ACCEPTABLE. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED VIEW THAT DESPITE REPEATED OPPORTUNITIES GIVEN BY THE APPELLANT DURING THE ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS, HE HAS FAILED TO SUBSTANTIATE THE SOURCE OF CASH DEPOSITS AMOUNTING TO RS.15,20,500/ - IN VARIOUS ACCOUNTS WITH VANI MERCHANTS CO - OPERAT IVE BANK, VANI. THE SAME THEREFORE REMAINED UNEXPLAINED. HENCE THE ADDITION OF RS.15,20,500/ - IS CONFIRMED. AS REGARDS CLAIM OF DEDUCTION OF RS.13,667/ - UNDER CHAPTER VIA OF THE ACT, THE APPELLANT HAS SUBMITTED A CERTIFICATE FROM LIC FOR THE F.Y. 2008 - 09 IN RESPECT OF PREMIUM PAID ON TWO POLICIES AGGREGATING TO RS.13,667/ - . WHILE ONE POLICY IS IN THE NAME OF THE APPELLANT, THE OTHER POLICY IS IN THE NAME OF HIS SPOUSE MRS.MANGALA AADESH KHABIYA. IN VIEW OF THE ABOVE, THE DEDUCTION OF RS.13,665/ - CLAIMED BY THE APPELLANT UNDER CHAPTER VI - A IS ALLOWED. 8. IN THE RESULT THE APPEAL IS PARTLY ALLOWE D . ITA NO.1073 / PN / 2014 3. AGG RIEVED BY THE ORDER OF CIT (A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. 1) ON THE FACTS AND IN LAW THE CIT(A), HAS ERRED IN CONFIRMING THE ADDITION OF RS.15,20,500/ - ON ACCOUNT OF ALLEGED UNEXPLAINED DEPOSITS IN BANK. 2) ON THE FACTS AND IN LAW THE CIT(A), HAS ERRED IN HOLDING THAT THE APPELLANT HAS NOT FILED ANY EVIDENCE IN SUPPORT OF SALE O F JCB DEPOSITED IN HIS SAV ING BANK ACCOUNT AS THE EVIDENCE IN THE FORM OF SALE RECEIPT OF JCB HAS BEEN FILED ON THE RECORD OF THE A.O. 3) ON THE FACTS AND IN LAW THE CIT(A) , HAS ERRED IN GIVING ONLY TWO DAYS TIME WHILE F IXING THE HEARING ON 19/2/2014 AND HENCE AS IN SUCH A SHORT PERIOD THE ASSESSEE RESIDING AT VANI COULD NOT CONTACT THE TAX CONSULTANT, RESIDING AT NASHIK AND COULD NOT BE HEARD BY CIT(A). 4 ) ON THE FACTS AND IN LAW THE CIT(A), HAS ERRE D IN NOT CONSIDERING THE FACT THAT THERE ARE 4 LEGAL HEIRS INCLUDING THE ASSESS EE OF THE JCB AND LOAN ON JCB BELONGING TO SHRI NAINSUKH KHABIYA I.E. FATHER OF THE ASSESSEE AND HENCE THE DEPOSITS FOR REPAYMENT OF LOAN ETC. IS THE LIABILITY OF 4 LEGAL HEIRS AND NOT THE ASSESSEE ONLY. 4. ON THE DATE OF HEARING NEITHER ASSESSEE NOR HIS REPRESENTATIVE APPEARED NOR ANY ADJOURNMENT APPLICATION WAS FILED ON THEIR BEHALF . ON PERUSAL OF THE CASE FILE, WE FIND THAT AT THE TIME OF HEARING ON 4 ON PERUSAL OF THE CASE FILE, WE FIND THAT AT THE TIME OF HEARING ON 31.08.2016 THE LD.AR SHRI NIKHIL PATHAK HAD WITHDRAWN HIS POWER OF ATTORNEY. THEREAFTER, THE CASE WAS ADJOURNED TO 16.11.2016. ON 16.11.2016 ON THE BASIS OF THE REQUEST OF THE NEW AR THE CASE WAS ADJOURNED TO 24.11.2016. ON THE DATE OF HEARING I.E. ON 24/11/2016 THERE WAS NO REPRESENTATION FROM THE SIDE OF ASSESSEE. IN VIEW OF THESE FACTS , WE PROCEED TO DISPOSE OF THE APPEAL OF THE ASSESSEE EXPARTE QUA THE ASSESSEE AND ON THE BASIS OF MATERIAL ON RECORD. BEFORE US, LD.DR SUBMITTE D THAT THOUGH ASSESSEE HAS RAISED VARIOUS GROUNDS BUT ALL THE GROUNDS ARE INTER - CONNECTED AND ARE IN RELATION TO THE SOLE ISSUE OF ADDITION OF CASH DEPOSITS. 5 . DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO NOTICED THAT ASSESSEE HAD DEPOSITED CASH OF RS.15,20,500/ - IN HIS BANK ACCOUNT ITA NO.1073 / PN / 2014 MAINTAINED WITH VANI MERCHANTS CO - OPERATIVE BANK. DESPITE, VARIOUS OPPORTUNITI ES GRANTED TO THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH , NO EXPLANATION WAS OFFERED BY THE ASSESSEE. HE, THEREFORE , HELD THE CASH DEPOSITS IN THE BANK ACCOUNT AS UN - DISCLOSED INCOME AND ACCORDINGLY MADE AN ADDITION OF RS.15,20,500/ - . AGGRIEVED BY THE ORDER OF AO ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO UPHELD THE ORDER OF AO . AGGRIEVED BY THE ORDER OF CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US. 6. BEFORE US LD.DR SUPPORTED THE ORDER OF AO AND CIT(A) AND FURTHER SUBMITTED THAT ASSESSEE HAD NEIT HER APPEARED BEFORE AO AND CIT( A) NOR HAS APPEARED BEFORE THE TRIBUNAL WHICH SHOWS THAT ASSESSEE HAS NO EXPLANATION TO OFFER FOR THE CASH DEPOSITS AND THEREFORE THE AO HAS RIGHTLY MADE THE ADDITION AND THEREFORE THE APPEAL OF ASSESSEE BE DISMISSED. 5 APPEAL OF ASSESSEE BE DISMISSED. 7. WE HAVE HEARD THE LD.DR AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD DEPOSITED CASH O F RS.15,20,500/ - IN HIS BANK ACCOUNT. IT IS ALSO A FACT WHICH IS NOTED BY AO AS WELL AS CIT(A) THAT ASSESSEE DID NOT OFFER ANY EXPLANAT ION ABOUT THE SOURCE OF CASH DEPOSITS. CIT(A) IN HIS ORDER HAS ALSO NOTED THAT NO DOCUMENTARY EVIDENCE IN SUPPORT OF CLAIM THAT THE CASH DEPOSITS WERE OUT OF THE AGRICULTURAL INCOME, ADVANCES RECEIVED AGAINST SALE OF JCB AND JCB HIRE CHARGES WERE FILED BY THE ASSESSEE AND THUS THE SOURCE OF CASH DEPOSITS HAD REMAINED UNEXPLAINED. BEFORE US, ALSO ASSESSEE HAS NOT PLACED ANY MATERIAL ON RECORD TO PROVE HIS CONTENTIONS NOR HAS DEMONSTRATED THE SOURCE OF CASH DEPOSITS . IN VIEW OF THE AFORESAID FACTS, WE FI ND NO REASON TO ITA NO.1073 / PN / 2014 INTERFERE WITH THE ORDER OF CIT(A) AND THUS THE GROUNDS OF ASSESSEE ARE DISMISSED. ARE DISMISSED. 8 . IN THE RESULT THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED O N THIS WEDNESDAY , THE 30 TH DAY OF NOVEMBER, 2016. SD/ - SD/ - ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE ; DATED : 30 TH NOVEMBER, 2016. S S G G R R / COPY OF THE ORDER FORWARDED TO : / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE LD.CIT (A) - I, NASHIK 4. THE LD.CIT, NASHIK 5. , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. / BY ORDER, / / TRUE COPY / / . / SR. PRIVATE SECRETARY, , / ITAT, PUNE 6