Income Tax Officer-6(2), Lucknow V. Shri IIiyas Ahmad , Lucknow

ITA 111/LKW/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9121 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.111/LKW/2013 ASSESSMENT YEAR:2009 - 10 SHRI ILIAS AHMAD, 264, LAKHRMANDI, DALIGANJ, LUCKNOW. PAN:ACCPA0696E VS INCOME TAX OFFICER - 6(2), LUCKNOW. (RESPONDENT) (APPELLANT) SHRI C. P. SINGH, D. R. APPELLANT BY NONE RESPONDENT BY 15/12/2014 DATE OF HEARING 23 /01/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, LUCKNOW DATED 26/12/2012 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. UNDER THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME - TAX(APPEAL) ERRED ON FACTS WHILE UNILATERALLY HOLDING THAT 'IN ABSENCE OF UTILIZATION OF CASH WITHDRAWALS, THE CONTENTION OF THE APPELLANT THAT THE DEPOSITS AND WITHDRAWALS INVOLVE ROTATION OF MONEY HAS TO BE ALL OWED. IN VIEW THEREOF, DEPOSITS OF RS.13,08,820/ - IN CASH IN BANK ACCOUNTS ARE EXPLAINED BY WAY OF WITHDRAWAL MADE IN CASH FROM SAME BANK ACCOUNTS.' WITHOUT EXERCISING HIS CO - TERMINUS POWER VIS - A - VIS THE ASSESSING OFFICER OR HAVING CALLED FOR A REMAND REP ORT WHILE ACCEPTING THE CONTENTION OF THE ASSESSEE IN TO - TO SANS INVESTIGATION. 2. THE COMMISSIONER OF INCOME - TAX (APPEAL) - II, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION TO RS.1,09,977/ - AS AGAINST RS.18,71,330/ - MADE BY THE A.O. 2 LD . COMMISSIONER OF INCOME - TAX (APPEAL) FAILED TO APPRECIATE THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE HUGE CASH TRANSACTIONS MADE BY HIM FROM VARIOUS BANK ACCOUNTS MAINTAINED AT DIFFERENT BANKS. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF NO TICE ON SEVERAL OCCASIONS. SINCE NOBODY WAS APPEARING ON BEHALF OF THE ASSESSEE, NOTICES WERE GIVEN TO LEARNED D.R. OF THE REVENUE FOR SERVICE ON THE ASSESSEE BUT ON SEVERAL OCCASIONS, SUCH NOTICES WERE GIVEN TO REVENUE FOR SERVICE BUT LEARNED D.R. OF THE REVENUE HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO SHOW THAT THE NOTICE WAS SERVED ON THE ASSESSEE. UNDER THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT SINCE THE REVENUE IS NOT IN A POSITION TO TRACE THE ASSESSEE, NO PURPOSE WILL BE SERVED EVEN IF TH E APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE BECAUSE NO CONSEQUENTIAL DEMAND CAN BE RAISED ON THE ASSESSEE BY THE REVENUE UNTIL THE REVENUE IS IN A POSITION TO LOCATE THE ASSESSEE. THEREFORE, IN OUR CONSIDERED OPINION, THE APPEAL OF REVENUE IS LIABLE TO BE DISMISSED FOR NON PROSECUTION IN THE LIGHT OF THESE FACTS. HOWEVER, IF THE REVENUE FINDS ITSELF IN A POSITION TO SERVE NOTICE ON THE ASSESSEE , THE REVENUE MAY MOVE MISC. APPLICATION FOR RECALLING OF THIS ORDER WITHIN THE PERIOD PERMITTED U/S 254(2) OF THE ACT. WITH THESE OBSERVATIONS, WE DISMISS THE APPEAL OF THE REVENUE. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23 /01/2015. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR