Lal Singh Sandhu, Panchkula V. DCIT, CC-II, Chandigarh

ITA 1085/CHANDI/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8909 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C CHANDRAKANTA CIT
• Assessee Lawyers: N K SAINI ITC
• Keywords: Opportunity of being heard; Set aside
• Section: 153A; 139(1); 68; 144; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH (VIRTUAL COURT) .., !' # $!, BEFORE: SHRI. N.K.SAINI, VP & SHRI , RAJPAL YADAV, VP ITA NO. 1085 & 1086/CHD/2019 ASSESSMENT YEAR : 2008-09 & 2009-10 SHRI LAL SINGH SANDHU 52, SECTOR-12A PANCHKULA THE DCIT CC-II CHANDIGARH PAN NO: ANGPS6161D APPELLANT RESPONDENT !' ASSESSEE BY : SHRI N.K. SAINI, I.T.C #!' REVENUE BY : SMT. C. CHANDRAKANTA, CIT $ %! & DATE OF HEARING : 16/03/2021 '()*! & DATE OF PRONOUNCEMENT : 16/03/2021 $%/ ORDER PER N.K. SAINI, VICE PRESIDENT THESE APPEAL FILED BY THE ASSESSEE ARE DIRECTED AGAIN ST THE SEPARATE ORDERS OF THE LD. CIT(A)-3, GURGAON DT. 31/05/2019 FOR THE A.YS 2008-09 & 2009-10 RESPECTIVELY. 2. SINCE THE ISSUES INVOLVED ARE COMMON IN BOTH THESE A PPEALS AND WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CONSOL IDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. AT THE FIRST INSTANCE WE WILL DEAL WITH THE APPEAL IN ITA NO. 1085/CHD/2019 FOR THE A.Y. 2008-09. 4. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING AN AD DITION OF RS. 962280/- OUT OF ADDITION MADE OF RS. 1303280/- MADE BY THE ASSES SING OFFICER. 2. THE APPELLANT CRAVES LEAVE FOR ANY ADDITION, DEL ETION OR AMENDMENT IN THE GROUNDS OF APPEAL ON OR BEFORE DISPOSAL OF APPEAL. 2 5. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELA TES TO THE SUSTENANCE OF ADDITION OF RS. 9,62,280/-. 6. FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZ URE OPERATION UNDER SECTION 132(1) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) WAS CONDUCTED ON 28/03/2011 IN PPP GROUP OF CASES INCLUDING THE RESIDENCE OF THE ASSE SSEE AT C-63, GHS-94, SECTOR-20, PANCHKULA. THE ASSESSEE VIDE HIS PETITION DT. 07/01/201 3 REQUESTED FOR THE COPIES OF THE SEIZED MATERIAL WHICH WERE ASKED TO BE COLLECTED ON 08 /01/2013 BUT THE SAME WERE NOT COLLECTED BY THE ASSESSEE AND NO RETURN UNDER SECTIO N 139 OF THE ACT WAS FILED. THEREAFTER, THE A.O. ISSUED NOTICE DT. 13/09/2012 UNDER SECTION 153A(1) OF THE ACT CALLING FOR THE RETURN OF INCOME FOR SIX ASSESSMENT YEA RS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SE ARCH TOOK PLACE. HOWEVER NO RETURN WAS FILED BY THE ASSESSEE IN RESPONSE TO THE NOTI CE UNDER SECTION 153A OF THE ACT, THEREFORE THE A.O. COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT AND MADE THE ADDITION OF RS. 13,03,280/- WHICH WAS THE AMOU NT DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE MAINTAINED WITH THE AXIS BANK LT D., PANCHKULA. 7. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER T O THE LD. CIT(A) WHO SUSTAINED THE ADDITION OF RS. 9,62,280/- OUT OF THE ADDITION MAD E BY THE A.O. UNDER SECTION 68 OF THE ACT BY OBSERVING AS UNDER: FOLLOWING OBSERVATION ARE MADE IN THE CASE ON THE BASIS OF ASSESSMENT ORDER AND SUBMISSIONS OF THE APPELLANT. (I) NO RETURN U/S 139 WAS FILED IN THIS CASE FOR TH E YEAR UNDER CONSIDERATION. FURTHER, NO RETURN IN RESPONSE TO NOTICE U/S 153A W AS FILED BY THE APPELLANT. (II) THE APPELLANT HAS ATTRIBUTED THESE DEPOSITS IN THIS SAVING BANK ACCOUNTS TOR- (I) OUT OF CASH RECEIVED FOR SALE OF FLAT NO. 302. (II) TRANSFERRED FROM SATPAL KAUR ACCOUNT. (III) OUT OF AVAILABLE CASH (BUSINESS FUNDS) AS PER CASH FLOW. (IV) RENTAL INCOME FROM SARAKPUR INDUSTRIAL SHED. (V) TRANSFER FROM APPELLANT'S BANK ACCOUNT. (III) THE APPELLANT'S CONTENTION THAT FUNDS MAY BE TREATED AS BUSINESS DEPOSITS AS THE APPELLANT HAS BEEN DECLARING HIS INCOME FROM PRESUM PTIVE TAX CANNOT BE 3 ACCEPTED AS NO INCOME TAX RETURN U/S 139(1) NOR U/S 153A WAS FILED DURING THE YEAR UNDER CONSIDERATION. (IV) THE AMOUNT RECEIVED FROM PURCHASER OF FLAT CAN NOT BE ACCEPTED AS NO PROPERTY WAS SOLD BY APPELLANT. (V) WITH REGARD TO OUTSTATION CHEQUE OF RS. 33,000 /- TREATED AS 3,30,000/- THE SAME CANNOT BE CONSIDERED AS NO DOCUMENT FROM BANK HAS B EEN RECEIVED NOR ANY INCOME DECLARED BY THE APPELLANT DURING THE YEAR UNDER CON SIDERATION. (VI) HOWEVER, AMOUNT OF RS. 3,41,000/- HAS BEEN REC EIVED FROM APPELLANT'S OWN BANK ACCOUNT OR FROM THE ACCOUNT OF HIS WIFE MRS. SATPAL KAUR AND THE APPELLANT IS BEING GIVEN CREDIT FOR THE SAME. IN VIEW OF THE ABOVE DISCUSSION, THE APPELLANT GETS A RELIEF OF RS. 3,41,000/- AND THE BALANCE ADDITION OF RS. 9,62,280/- U/S 68 OF THE AC T IS CONFIRMED. 8. NOW THE ASSESSEE IS IN APPEAL. 9. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AL L THE DOCUMENTS WHICH WERE FOUND DURING THE COURSE OF SEARCH WERE AVAILABLE TO TH E A.O. BUT HE HAS NOT CONSIDERED THE SAME WHILE MAKING THE IMPUGNED ADDITION. IT WAS FURTHER SUBMITTED THAT THE A.O. WRONGLY CONSIDERED THE AMOUNT OF RS. 33,000 M ENTIONED IN THE OUTSTATION CHEQUE AS RS. 3,30,000/- AND THE LD. CIT(A) WAS NOT JU STIFIED IN UPHOLDING THE ACTION OF THE A.O. BY OBSERVING THAT THE SAME COULD NOT BE CONSID ERED AS NO DOCUMENT FROM BANK HAD BEEN RECEIVED NOR ANY INCOME WAS DECLARED BY TH E ASSESSEE, ON THE CONTRARY, THOSE DOCUMENTS IN THE FORM OF BANK STATEMENTS W ERE AVAILABLE ON THE RECORD. IT WAS FURTHER SUBMITTED THAT THE EXPLANATIO N OF THE ASSESSEE WAS NOT CONSIDERED BY THE LD. CIT(A) IN RIGHT PERSPECTIVE THEREF ORE THE ADDITION SUSTAINED WAS NOT JUSTIFIED. 10. IN HER RIVAL SUBMISSIONS THE LD. CIT DR STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND FURTHER SUBMITTED THAT THE ASSESSEE NEITHER FILED THE RETURN OF INCOME NOR EXPLAINED THE SOURCE OF DEPOSITS, THEREFO RE, THERE WAS NO ALTERNATIVE EXCEPT TO MAKE THE ADDITION. 11. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTI ES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRE SENT CASE IT IS AN ADMITTED FACT THAT THE A.O. FRAMED THE ASSESSMENT, EXPARTE, UNDER SECT ION 144 OF THE ACT AND THE LD. 4 CIT(A) ALTHOUGH MENTIONED THAT THE OBSERVATION WERE MADE O N THE BASIS OF ASSESSMENT ORDER AND SUBMISSIONS OF THE ASSESSEE, HOWEVER, HE SIMPL Y REPRODUCED THE ASSESSMENT ORDER AT PARA 3 OF THE ORDER BUT THE SUBMISSIONS OF THE ASSESSEE WERE NOT MENTIONED IN THE IMPUGNED ORDER. THEREFORE IT IS NOT CLEAR AS TO WHA T WAS THE EXPLANATION GIVEN BY THE ASSESSEE BEFORE THE CIT(A). WE, THEREFORE, IN THE ABSENCE OF CLEAR FACTS ON RECORD AND CONSIDERING THIS FACT THAT THE A.O. MADE THE ASSESSM ENT EXPARTE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE O F THE A.O. TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENT. 12. IN ITA NO. 1086/CHD/2019 FOR THE A.Y2009-10 SIMIL AR ISSUES ARE INVOLVED THE ONLY DIFFERENCE IS IN THE AMOUNT INVOLVED AND THE NATURE OF I NVESTMENT. THEREFORE THE CASE FOR THE A.Y. 2009-10 IS ALSO RESTORED BACK TO THE FI LE OF THE A.O. TO BE ADJUDICATED AFRESH AS INDICATED IN THE FORMER PART OF THIS ORDER 13. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 16/03/2021) SD/- SD/- # $! .. (RAJPAL YADAV) ( N.K. SAINI) / VICE PRESIDENT / VICE PRESIDENT AG DATE: 16/03/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE