Saleem Akhtar, Malerkotla V. ITO, Malerkotla

ITA 1193/CHANDI/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8334 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 17-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Business income; Assessment record
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH:SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO.1193/CHD/2016 (ASSESSMENT YEAR-2009-10) SALEEM AKHTAR, MOHALLA KASAIN WALA, W.NO.3, QILA REHMATGARH, MALERKOTLA. PAN-ANVPA2453M ( APPELLANT) VS ITO, WARD-2, MALERKOTLA. (RESPONDENT) ASSESSEE BY SHRI ATUL GOYAL, CA REVENUE BY SHRI MANJIT SINGH, SR.DR DATE OF HEARING 01.02.2017 DATE OF PRONOUNCEMENT 03.02.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 14.7.2016 OF CIT(A)-2, LUDHIANA PERTAIN ING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NO.2 WHEREIN THE A SSESSEE PLEADS LACK OF REASONABLE OPPORTUNITY. 2. AT THE TIME OF HEARING AN ADJOURNMENT PETITION H AD BEEN MOVED SEEKING TIME IN ORDER TO INSPECT THE ASSESSMENT RECORDS. THE LD. A .R. ON QUERY THOUGH STATED THAT DUE TO CHANGE OF COUNSEL THE FULL FACTS ARE NOT AVAILABLE WITH HIM, REFERRING TO THE FACTS AVAILABLE ON RECORD PLEADED THAT AN OPPORTUNITY OF BEING HEAR D BEFORE THE CIT (APPEALS) MAY BE GRANTED. ACCORDINGLY, THE PARTIES WERE HEARD. THE RECORD SHOWS THAT THE ASSESSEE RETURNED AN INCOME OF RS.1,53,000/-. AS PER AIR IN FORMATION THE ASSESSEE WAS FOUND TO HAVE A DEPOSIT OF RS.27,86,225/- IN HIS SAVING BANK ACCOUNT WITH OBC, MALERKOTLA. THE CASE WAS ACCORDINGLY REOPENED U/S 147 OF THE INCOME TAX ACT, 1961 AFTER RECORDING OF REASONS AND ISSUING A NOTICE U/S 148. HOWEVER, DES PITE ISSUANCE OF NOTICE THE ASSESSEE REMAINED ABSENT. IN VIEW THEREOF ADDITION OF THE S AID AMOUNT WAS MADE IN THE HANDS OF THE ASSESSEE. 2 3. THE ADDITION WAS UNSUCCESSFULLY CHALLENGED IN AP PEAL BEFORE THE CIT (APPEALS). AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE I.T .A.T. 4. THE LD. A.R. INVITING ATTENTION TO THE GROUNDS R AISED AND THE SUBMISSIONS RECORDED IN THE IMPUGNED ORDER SUBMITTED THAT THE ASSESSEE A T THE RELEVANT POINT OF TIME WAS SUFFERING FROM SPINE PROBLEMS AND ALSO DEPRESSION. HE HAD BEEN ADVISED COMPLETE REST DUE TO HIS MEDICAL PROBLEMS BY THE DOCTOR. THUS, A FTER HAVING APPOINTED A COUNSEL TO REPRESENT HIM IT WAS SUBMITTED THE ASSESSEE REMAINE D UNREPRESENTED FOR NO FAULT OF HIM. ON MERITS BEFORE THE CIT (APPEALS) IT WAS SUBMITTED THAT IT HAD BEEN PLEADED THAT THE ENTIRE DEPOSIT IN THE SAVING BANK ACCOUNT CANNOT BE THE ASSESSEES INCOME. THE SAVING BANK ACCOUNT ALSO SHOWED WITHDRAWALS TO MEET THE CO STS INCURRED FOR BUSINESS PURPOSES. HOWEVER, ON QUERY, THE LD. A.R. WAS UNABLE TO STATE WHAT WAS THE BUSINESS OF THE ASSESSEE. IT WAS HIS SUBMISSION THAT THE ASSESSEE WAS REPRESENTED BY SHRI GAURAV SHIBE ADVOCATE BEFORE THE CIT (APPEALS) AND RELEVAN T PAPERS HAVE NOT BEEN RECEIVED FROM THE COUNSELS OFFICE. THE REQUEST FOR TIME TO INSPECT THE RECORDS WAS THUS MADE. 5. THE LD. SR.DR RELYING UPON THE ORDERS SUBMITTED THAT THE ONUS WAS UPON THE ASSESSEE TO GIVE EVIDENCE TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNTS AND THUS THE FINDINGS OF THE CIT (APPEALS) THAT IT IS HIGHLY IMPROBABLE THAT THE APPELLANT IS NOT KNOWING THE NAMES AND ADDRESSES OF THE PERSONS WITH WHOM HE IS CLAIMING REGULAR BUSINESS TRANSACTIONS , IT WAS SUBMITTED, SUPPORTED THE CONCLUSION OF SUS TAINING THE ADDITION. HOWEVER, ON QUERY, HE WAS ALSO UNABLE TO STATE WHAT WAS THE BUSINESS OF THE ASSESSEE. 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT NEITHER THE ASSESSING OFFICER NOR THE CIT (APPEALS) HAVE CARED TO ADDRESS WHAT IS THE BUSINESS OF THE ASSESSEE AND WHEREFROM THE INCOME OF RS.1,53,100 HAS BEEN RETURNED. THE ARGUMENTS ON BEHALF OF THE ASSESSEE THAT THE ENTIRE DEPOSIT CANNOT BE THE BUSINESS INCOME, ON FACTS, CAN BE A CORRECT ARGUMEN T AS THE EXPENDITURE FOR MEETING THE 3 COSTS OF THE BUSINESS NECESSARILY HAS TO BE CONSIDE RED ON FACTS. HOWEVER, THE SAID ARGUMENT WOULD APPLY ONLY IF THE ASSESSEE CAN DEMON STRATE THAT THERE WAS A BUSINESS IN EXISTENCE. IN THE ABSENCE OF ANY RELEVANT DISCUSS ION IN THE ORDERS OF THE TAX AUTHORITIES, THE IMPUGNED ORDER CANNOT BE UPHELD. ACCORDINGLY, CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSIONS OF THE PA RTIES BEFORE THE BENCH, I AM OF THE VIEW THAT THE IMPUGNED ORDER DESERVES TO BE SET ASI DE. THE REPRODUCTION OF THE WRITTEN SUBMISSIONS DATED 13.7.2016 IN THE IMPUGNED ORDER S HOWS THAT ON FACTS, SOME SUBMISSIONS WERE ADVANCED. HOWEVER, IN THE ABSENCE OF ANY DISCUSSION ON WHAT WAS THE BUSINESS OF THE ASSESSEE THE GENERAL ARGUMENTS IN T HE ABSENCE OF EVIDENCE AND FACTS ARE OF NO HELP. IT IS HOPED THAT THE OPPORTUNITY SO PR OVIDED IN GOOD FAITH IS UTILIZED BY THE ASSESSEE BY PARTICIPATING FULLY AND FAIRLY IN THE PROCEEDINGS BEFORE THE CIT (APPEALS). THE ASSESSEE IS ADVISED NOT TO ABUSE THE OPPORTUNIT Y SO PROVIDED AS FAILING WHICH THE LD. CIT (APPEALS) IT IS MADE CLEAR WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED : 03 FEBRUARY, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH