Smt. Kirti Saxena, Neemuch V. ACIT, Central Circle-1, Udaipur

ITA 115/JODH/2019

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9702 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S YADAV LD
• Assessee Lawyers: AMIT KOTHARI CA LD
• Keywords: Opportunity of being heard; Bogus loan
• Section: 143(3); 234B; 69

Judgement Text

1 ITA NOS.114 & 115/JODH/2019 ASSESSMENT YEAR: 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR , , BEFORE HONBLE SHRI SANDEEP GOSAIN, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.114/JODH/2019 ( / ASSESSMENT YEAR: 2010-11) JULI SAXENA POONAMCHAND GALI SAIFEE MOHALLA, CHOTTA SARAFA NEEMUCH, MADHYA PRADESH-458 441 / VS. A CIT CENTRAL CIRCLE - 2 UDAIPUR RAJASTHAN. ./ ./PAN/GIR NO. ACDPS-6365-D ( /APPELLANT ) : ( / RESPONDENT ) & ./ I.T.A. NO.115/JODH/2019 ( / ASSESSMENT YEAR: 2010-11) KIRTI SAXENA POONAMCHAND GALI SAIFEE MOHALLA, CHOTTA SARAFA NEEMUCH,MADHYA PRADESH-458 441 / VS. ACIT CENTRAL CIRCLE - 2 UDAIPUR RAJASTHAN. ./ ./PAN/GIR NO. ACDPS-6365-D ( /APPELLANT ) : ( / RESPONDENT ) SSESSEE BY : SHRI AMIT KOTHARI (CA)- LD. AR REVENUE BY : SHRI A.S. YADAV - LD. SR. DR / DATE OF HEARING : 03/11/2020 / DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 2 ITA NOS.114 & 115/JODH/2019 ASSESSMENT YEAR: 2010-11 1. FACTS AS WELL AS ISSUE IN BOTH THE CAPTIONED APP EALS ARE COMMON AND HENCE, THE APPEALS ARE BEING DISPOSED-OF F BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE & BRE VITY. FOR ADJUDICATION PURPOSE, THE FACTS OF ITA NO.114/JODH/ 2019 ARE DISCUSSED. 2. THIS APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2010-11 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX(APPEALS)-2, UDAIPUR, [IN SHORT REFERR ED TO AS CIT(A)], APPEAL NO.10841/2017-18 DATED 11/01/2019 ON FOLLOWING EFFECTIVE GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLANT WAS DEPRIVED FROM OPPORTUNITY OF BEING HEARD. APPELLANT PRAYS TO SUBMIT FURTHER PROOF. 2. ON THE FACT AND CIRCUMSTANCES OF THE CASE AS W ELL AS IN THE IMPUGNED ORDER OF ASSESSMENT PASSED BY CENTRAL CIRCLE-1 UDAI PUR RESULTING AN ADDITION OF RS.4,00,000/- IS WHEN CONSIDERED IN THE LIGHT OF THE FACT OF THE CASE, MATERIAL ON RECORD, WRITTEN SUBMISSION AND POSITION OF CASE IS AB-INITIO VOID, ILLEGAL AND CANNOT SUBSTANTIATE IN THE EYE OF LAW H ENCE THE ADDITION SO MADE DESERVED TO BE DELETED. 3. THE ASSESSEE DENIES HIS LIABILITY TO CHARGE AN Y INTEREST US 234B OF THE IT ACT. 4. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND I N THE LAW THE LEARNED AO ERRED IN MAKING ADDITION U/S 69 ON ACCOUNTS OF UNEXPLAINED MONEY AMOUNTING TO RS.4,00,000/- . THE APPELLANT PRAYS TH AT THE SAID ADDITION BE DELETED. 5. THAT THE APPELLANT RESERVE HIS RIGHT TO ADD, ALT ER, AMEND OR MODIFY THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 6. ON THE FACTS AND CIRCUMSTANCES AN AMOUNT OF RS. 4,00,000/- SHOULD BE RECEIVED FROM SHRI JAGDISH DHAYMA AND I SHOULD PROD UCE COPY OF BANK ACCOUNT OF SH. JAGDISH DHAYAMA. 7. IN SUCH MATTERS AO NOT GIVING ANY CHANCE OF HEAR ING AND DISMISSED THE APPEAL ITSELF. AS EVIDENT, THE ASSESSEE IS AGGRIEVED BY CONFIRMATI ON OF ADDITION U/S 69 FOR RS.4 LACS. 3. THE IMPUGNED ADDITION STEM FROM AN ASSESSMENT FR AMED U/S 143(3) R.W.S. 147 ON 26/12/2018. PURSUANT TO RECEIP T OF CERTAIN 3 ITA NOS.114 & 115/JODH/2019 ASSESSMENT YEAR: 2010-11 INFORMATION IN THE COURSE OF SEARCH ACTION IN THE C ASE OF CHETAK GROUP, NIMBAHERA (RAJASTHAN), IT TRANSPIRED THAT ON E SHRI VIKRAM ANJANA WAS CHANNELIZING GROUPS UNACCOUNTED MONEY T HROUGH HIS PROPRIETORSHIP CONCERN NAMELY M/S U. B. INVESTMENT. THE SAID ENTITY RECEIVED BOGUS LOANS FROM VARIOUS PERSONS. SINCE TH E ASSESSEE HAD ALSO ADVANCED AN AMOUNT OF RS.4 LACS TO M/S U.B .INVESTMENT, THE CASE WAS REOPENED AS PER DUE PROCESS OF LAW AND THE ASSESSEE WAS DIRECTED TO EXPLAIN THE SOURCE OF RS.4 LACS. HOWEVER, IN THE ABSENCE OF ANY SATISFACTORY REPLY F ORTHCOMING FROM THE ASSESSEE, THE SAID AMOUNT WAS ADDED TO THE INCO ME OF THE ASSESSEE. THE ASSESSEE HAD ADVANCED RS. 4 LACS THOU GH CHEQUE NO.283369 BUT THE SAME AMOUNT WAS TRANSFERRED BACK TO THE BANK ACCOUNT OF THE ASSESSEE ON THE SAME DATE. 4. BEFORE LD. CIT(A), THE ASSESSEE SOUGHT TO IMPRES S UPON THE FACT THAT THE AMOUNT SO ADVANCED WAS SOURCED FROM A N EARLIER LOAN REPAID BY ONE SHRI JAGDISH DIAMA. HOWEVER, THE SAID PLEA WAS REJECTED SINCE THE PURPORTED BANK CERTIFICATE STATE D TO BE FILED BY THE ASSESSEE WAS FOUND MISSING. ACCORDINGLY, THE ADDITI ONS WERE CONFIRMED. AGGRIEVED, THE ASSESSEE IS IN FURTHER AP PEAL BEFORE US. 5. IT IS QUITE EVIDENT THAT THE ASSESSEE HAS MISERA BLY FAILED TO PROVE THE SOURCE OF ADVANCES. NO SUPPORTING DOCUMEN TS COULD BE SUBMITTED BY ASSESSEE DURING ASSESSMENT PROCEEDINGS AS WELL AS DURING APPELLATE PROCEEDINGS. HOWEVER, KEEPING IN V IEW THE FACT THAT THE ASSESSEE IS AN INDIVIDUAL HAVING MEAGER IN COME, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF LD . CIT(A) FOR RE- ADJUDICATION AFTER PROVIDING ANOTHER OPPORTUNITY OF HEARING TO THE 4 ITA NOS.114 & 115/JODH/2019 ASSESSMENT YEAR: 2010-11 ASSESSEE. THE ASSESSEE, IN TURN, IS DIRECTED TO SUB STANTIATE THE SOURCE OF ADVANCES FAILING WHICH LD. CIT(A) SHALL B E AT LIBERTY TO PROCEED WITH ADJUDICATION ON THE BASIS OF MATERIAL ON RECORD. 6. FACTS ARE SIMILAR IN ITA NO.115/JODH/2019. THERE FORE, THIS MATTER WOULD ALSO STAND RESTORED BACK TO THE FILE O F LD. CIT(A) WITH SIMILAR DIRECTIONS. 7. BOTH THE APPEAL STANDS ALLOWED FOR STATISTICAL P URPOSES. ORDER PRONOUNCED U/R 34(4) OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. S SD/- SD/- (SANDEEP GOSAIN) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21/12/2020 SR.PS:-JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$' / THE RESPONDENT 3. % ( ) / THE CIT(A) 4. % / CIT CONCERNED 5. &'#( ) , ) , ) / DR, ITAT, JODHPUR 6. '+,-! / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, JODHPUR.