Dnyaneshwar Pandharinath Katke, Pune V. CIT - II, Pune, Pune

ITA 1141/PUN/2013

• Counselvise Citation: 114124514 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 24-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS M S VERMA
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.1141/PN/2013 (ASSESSMENT YEAR 2008-09) DNYANESHWAR PANDHARINATH KATKE, WAGHOLI KATKEWADI, POST WAGHOLI, TALUKA HAVELI, PUNE NAGAR ROAD, PUNE 412 207. PAN : AOAPK1050Q . APPELLANT VS. INCOME TAX OFFICER, WARD- 4(6), PUNE. . RESPONDENT ASSESSEE BY : NONE DEPARTMENT BY : MRS. M. S. VERMA, CIT DATE OF HEARING : 04-12-2014 DATE OF PRONOUNCEMENT : 15-12-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AG AINST AN ORDER OF THE COMMISSIONER OF INCOME TAX-II, PUNE (IN SHORT THE COMMISSIONER) DATED 15.03.2013 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 30.12.2010 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-T AX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX - II, PUNE HAS ERRED IN PASSING THE REVISION ORDER U/S.263 OF INCOME TAX ACT, 1961 SETTING ASIDE THE ASSESSMENT ORDER PASSED U/S.!43(3) BY THE ASSESSING OFFICER WITHOUT APPRECI ATING THE FACTS OF THE CASE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. COMMISSIONER OF INCOME TAX - II, PUNE HAS ERRED IN COMING TO THE CONCLUSION THAT THE ASSESSMENT ORDER PASSED BY THE A.O. IS ERR ONEOUS IN SO FAR AS THE SAME IS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND FURTHER ERRED IN HOLDING THAT IT IS A FIT CASE FOR EXERCISE OF REVISIONAL JU RISDICTION U/S.263 OF INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS OF THE CAS E. ITA NO.1141/PN/2013 3. AT THE TIME OF HEARING, NONE APPEARED AND NOR AN Y ADJOURNMENT WAS SOUGHT ON BEHALF OF THE APPELLANT-ASSESSEE INSPITE OF NOTICE HAVING BEEN SERVED THROUGH RPAD ON MORE THAN ONE OCCASION AND T HE LD. DEPARTMENTAL REPRESENTATIVE APPEARED ON BEHALF OF THE RESPONDENT -REVENUE. THEREFORE, HAVING REGARD TO THE RULE 24 OF THE APPELLATE TRIBU NAL RULES, 1963, THE APPEAL IS BEING DISPOSED-OFF AFTER HEARING THE RESPONDENT ON MERITS AND EX-PARTE QUA THE ASSESSEE-APPELLANT. 4. ON THE BASIS OF THE ASSESSMENT ORDER AND THE IMP UGNED ORDER OF THE COMMISSIONER PASSED U/S 263 OF THE ACT, IT IS REVEA LED THAT ASSESSEE IS AN INDIVIDUAL, WHO FILED A RETURN OF INCOME FOR ASSESS MENT YEAR 2008-09 ON 26.03.2010 DECLARING TOTAL INCOME OF RS.2,09,220/-. THE RETURN OF INCOME FILED WAS SUBJECT TO A SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT DATED 30.12.2010 WHEREBY THE TOTAL INCOME WAS ASSESSED AT RS.5,14,22 0/- AFTER MAKING AN ADDITION OF RS.3,05,000/- ON ACCOUNT OF UNEXPLAINED SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT. SUBSEQUENTLY, THE COMMISSIONE R INVOKED HIS REVISIONARY JURISDICTION U/S 263 OF THE ACT AND HELD THAT THE A SSESSMENT ORDER DATED 30.12.2010 WAS ERRONEOUS IN SO FAR AS IT WAS PREJUD ICIAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SECTION 263 OF THE AC T. AS PER THE COMMISSIONER, EXAMINATION OF THE RECORD OF THE PROC EEDINGS SHOWED THAT THERE WAS NO ENQUIRY OR APPLICATION OF MIND WITH RE SPECT TO EITHER THE RECEIPTS OR THE PAYMENTS MADE FROM THE BANK ACCOUNT WHICH WA S NOT SHOWN TO THE DEPARTMENT. THEREFORE, HE SET-ASIDE THE ASSESSMENT ORDER AND DIRECTED THE ASSESSING OFFICER TO FRAME THE ASSESSMENT DE-NOVO AFTER GIVING AN APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE. AGAINST SU CH A DECISION OF THE COMMISSIONER, ASSESSEE HAS PREFERRED THIS APPEAL RA ISING THE AFORESTATED GROUNDS OF APPEAL. 5. AT THE TIME OF HEARING, THE LD. CIT-DR HAS TAKEN US THROUGH THE DETAILED ORDER PASSED BY THE COMMISSIONER BRINGING OUT THE NON-APPLICATION OF ITA NO.1141/PN/2013 MIND BY THE ASSESSING OFFICER, BECAUSE OF WHICH THE ASSESSMENT ORDER DATED 30.12.2010 WAS ERRONEOUS AND PREJUDICIAL TO THE INT ERESTS OF THE REVENUE WITHIN THE MEANING OF SECTION 263 OF THE ACT. THE LD. CIT-DR HAS ALSO RELIED UPON THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT, 243 ITR 83 (SC) IN SUP PORT OF THE CASE OF THE REVENUE. 6. WE HAVE CONSIDERED THE SUBMISSIONS PUT-FORTH BY THE LD. CIT-DR AND ALSO PERUSED THE RESPECTIVE ORDERS OF THE AUTHORITI ES BELOW. ADMITTEDLY, COMMISSIONER IS EMPOWERED TO INVOKE HIS REVISIONARY POWERS CONTAINED IN SECTION 263 OF THE ACT ON FULFILLMENT OF TWO CONDIT IONS, NAMELY, (I) THAT THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ER RONEOUS; AND, (II) THAT IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. AS PE R THE HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. (SUPRA), WHERE AN ORDER IS PASSED WITHOUT APPLICATION OF MIND IT WOULD AMOUNT TO AN E RRONEOUS ORDER WITHIN THE MEANING OF SECTION 263 OF THE ACT. 7. IN THIS BACKGROUND, WE HAVE PERUSED THE CASE SET UP BY THE COMMISSIONER IN THE IMPUGNED ORDER. AS PER THE COM MISSIONER, THE RETURN OF THE ASSESSEE WAS SELECTED FOR SCRUTINY THROUGH CASS FOR THE REASON THAT THERE WERE CASH DEPOSITS OF RS.76,05,000/- MADE IN THE SA VINGS BANK ACCOUNT OF THE ASSESSEE. THE COMMISSIONER NOTED THAT THE SOURCE O F CASH DEPOSITS WAS ASKED TO BE EXPLAINED DURING THE ASSESSMENT PROCEED INGS. ONE OF THE EXPLANATIONS OF THE ASSESSEE WAS THAT GROSS RECEIPT S OF BUSINESS AMOUNTING TO RS.37,00,000/- WERE RECEIVED IN CASH WHICH WERE DEP OSITED IN THE BANK ACCOUNT FROM TIME TO TIME. THE COMMISSIONER NOTED THAT THE SAID EXPLANATION OF THE ASSESSEE WAS ACCEPTED WITHOUT VERIFICATION. ALONG WITH THAT THE COMMISSIONER ALSO NOTED THAT THERE WAS NO DETAIL OF ANY OF THE EXPENSES WITH RESPECT TO THE CONTRACT CHARGES, LABOUR CHARGES, SA LARY AND WAGES OR OTHER EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT PREPA RED BY THE ASSESSEE. IN ITA NO.1141/PN/2013 NUTSHELL, THE EMPHASIS OF THE COMMISSIONER IS THAT WITH RESPECT TO THE EITHER THE RECEIPTS OR THE PAYMENTS MADE FROM BANK ACCOUNT NO ENQUIRIES WERE MADE THUS LEADING TO AN ASSESSMENT ORDER BEING PASS ED WITHOUT APPLICATION OF MIND. THE COMMISSIONER HAS ALSO ENUMERATED IN DETA IL THE NECESSITY AND THE CIRCUMSTANCES WHICH DESERVEDLY REQUIRED THE ASSESSI NG OFFICER TO MAKE SUCH ENQUIRIES. THE SAID FINDINGS OF THE COMMISSIONER, IN OUR VIEW, JUSTIFY HIS ULTIMATE CONCLUSION THAT THE ASSESSMENT ORDER HAS B EEN PASSED WITHOUT APPLICATION OF MIND AND THEREFORE HE HAS CORRECTLY INVOKED HIS REVISIONARY POWER CONTAINED IN SECTION 236(1) OF THE ACT. ACCO RDINGLY, THE ORDER OF THE COMMISSIONER IN SETTING-ASIDE THE ASSESSMENT ORDER AND DIRECTING THE ASSESSING OFFICER TO MAKE AN ASSESSMENT DE-NOVO AFT ER GIVING AN APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE, IS HEREBY A FFIRMED. THUS, ASSESSEE FAILS IN ITS APPEAL. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH DECEMBER, 2014. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 15 TH DECEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT-II, PUNE; 4) THE DR A BENCH, I.T.A.T., PUNE; 5) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE