SHRI AJAY KUMAR NIVRUTTI, PUNE V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-3, AMRITSAR

ITA 12/ASR/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9138 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 25-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANPREET SINGH DUGGAL
• Keywords: Opportunity of being heard
• Section: 147; 144; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (VIRTUAL COURT) BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 12/Asr/2021 Assessment Year: 2011-12 Sh. Ajay Kumar Nivrutti Flat No. 8, Right Bhusari Colony, Paud Road, Kothirud, Pune [PAN: AGXPK 6833C] Vs. Deputy Commissioner of Income Tax, Circle-3, Amritsar (Appellant) (Respondent) Appellant by : Sh. Rohit Kapoor, CA & Sh. Vir Sain Aggarwal Respondent by: Sh. Manpreet Singh Duggal, Sr. DR Date of Hearing: 20.06.2022 Date of Pronouncement: 08.08.2022 ORDER Per Dr. M. L. Meena, AM: The appeal has been filed by the assessee against the impugned order dated 29.11.2019 passed by the Ld. Commissioner of Income Tax (Appeals)-1, Amritsar in respect of the Assessment Year 2011-12. 2. The assessee has raised the following grounds of appeal: ITA No. 12/Asr/2021 Ajay Kumar Nivrutti v. DCIT 2 “1. That the Ld AO has erred in making addition on account of Purchase of mutual fund of Rs. 5,00,000/- and Credit card bill payments of Rs. 1,49,855/- 2. That the additions are made mechanical in nature and are merely based on upon the AIR Information without application of mind. 3. That the Ld. AO has ignored the documents placed in record justifying the investment made and payment of credit card through proper banking channel. 4. The Ld. AO has erred in making addition against the principle of natural justice without giving opportunity of being heard 5. The Ld. AO has erred in not issuing the notice u/s 143(2) which was the statutory requirement in case the return has already been filed. The fact of non-issuing of 143(2) can also be visualized from the order on records.” 3. At the outset, the ld. counsel for the assessee Sh. Rohit Kapoor requested for condonation of delay in filing the appeal in ITA No. 12/Asr/2021 in respect of assessment year 2011-12 with the support of an affidavit (copy enclosed). The relevant para of the affidavits are extracted as under: “3. That I have filed an appeal before Income Tax Appellate Tribunal Amritsar; vide ITA No. 12 of Asr 2021 for A.Y. 2011-12. That the appeal was filed on 26.03.2021 and there delay in filing the appeal for 362 days. The said delay was on account of ill health of me and my family members. 4. That me and my family members were suffering from Covid-19 and I had to go through spine surgery due to which he was advised complete bed rest for few months. ITA No. 12/Asr/2021 Ajay Kumar Nivrutti v. DCIT 3 5. That due to poor health of me and my family members, it was not possible for me to pay attention towards the legal affairs and other matters and could not contact any professional for filing of appeal before Hon’ble ITAT against the order of the CIT(A) and as such, there was a delay in filing of appeal. 4. The ld. AR argued that the delay in filing of the appeal was thus on account of exceptional circumstances. In support he placed reliance upon the judgment of Hon’ble Apex Court in Miscellaneous Application Nos. 21 of 2022 and 665 of 2021 in suo motu writ petition (c) No. 3 of 2020 wherein it has been directed vide para 5(i) that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial/quasi- judicial proceedings, in view of the matter we accept the request of the assessee for condonation of delay in filing. Accordingly, the appeal is admitted to be heard on merits. 5. The Assessing Officer has completed assessment u/s 144 r.w.s. 147 whereby confirming the three additions aggregating to Rs. 14,49,855/- on account of purchase of mutual fund on HDFC, payment of credit card and sale of immovable property to the extent of Rs. 5,00,000/-, Rs. 14,98,855/- and Rs. 8,00,000/- respectively. ITA No. 12/Asr/2021 Ajay Kumar Nivrutti v. DCIT 4 6. In appeal the ld. CIT(A) has granted part relief of Rs.8,00,000/- in respect of sale of civil immovable property vide para 6 of the CIT order, however, he has confirmed the addition of Rs. 5,00,000/- and 1,49,855/- made in respect of purchase of mutual fund and payment of credit card respectively. After considering the remand report of the AO as being not satisfied with the submission of the appellant assessee that the payment of credit card was made out of the salary account and other saving account with Axis Bank, he has confirmed the additions. 7. The ld. AR submitted that the addition of Rs. 5,00,000/- in respect of mutual fund investment was made only due to the fact that the AO has verified the date as 30.04.2010 as appearing in AIR information. However, he argued that the cheque in respect of investment of HDFC mutual fund was cleared on 03.05.2010 from the Axis Bank A/c No. 685010100015251; that the AO has failed to appreciate the fact that 1 st May, 2010 was holiday (APB pg. 2) in Bank due to Labour Day and 2 nd May, 2010 was Sunday and therefore, the clearance of cheque was effected in the Bank on 3 rd May, 2010. Thus, he explained that the amount deposited to the tune of Rs.5,00,000/- was invested out of redemption of mutual fund in Axis Bank on 27.04.2010 for Rs. 5,03,301/- (APB pg. 15), and payment in respect of credit card of Rs. 1,49,855/- was made out of bank account maintained with ITA No. 12/Asr/2021 Ajay Kumar Nivrutti v. DCIT 5 the Axis Bank. The ld. Assessing Officer has failed to appreciate that the different payments were made on Axis Bank (APB pg. nos. 11 to 18). The ld. counsel argued that the credit card payment has been made out of the disclosed bank account in which salary was received. The details of the total payment of credit card made by the appellant is enclosed (APB pg. 47). 8. The ld. DR stands by the impugned order. 9. We have heard both the sides and perused the material on record and written submissions filed. Admittedly, the additions of Rs.5,00,000/- (on account of investment of mutual fund) was made by the AO due to the different date stated in the AIR information, i.e., 13 th April, 2010. It is not disputed that the following dates of 1 st May and 2 nd May, 2010 were closed holidays on account of Labour Day and Sunday which has not been appreciated by either of the lower authorities while rejecting the explanation of the assessee that clearance of the cheque could have been effected on the working day in the bank, on 3 rd May, 2010 only and that amount of Rs. 5,00,000/- was invested out of redemption of mutual fund in the Axis Bank itself on 27.05.2010 for Rs.5,03,301/-. In our view, the ld. CIT(A) ought to have called for a remand report of the AO and enquiry report from the Axis Bank wherein the assessee has maintained the saving bank account ITA No. 12/Asr/2021 Ajay Kumar Nivrutti v. DCIT 6 through which the amount of investment of redemption and mutual funds made on 27.04.2010 for Rs.5,03,301/-. In our view, the ld. CIT(A) was not justified in confirming the finding of the AO, in mechanical and arbitrary manner. Accordingly the addition of Rs.5,00,000/- is deleted. 10. Next issue is regarding credit card payment of Rs.14,49,855/-. The payments alleged by the department are made by the appellant assessee by the credit card out of the bank account maintained with the same Axis Bank. Admittedly, the different payments are made from the Axis Bank (APB pg. nos. 11 to 18) and the payment was made out of the disclosed bank account in which salary was received by the appellant assessee. The authorities have been appreciated the facts of the payment of Rs. 1,49,855/- made through credit card out of the same bank account maintain with the Axis Bank wherein the salary of the assessee has been deposited. In our view, the CIT(A) was not justified in confirming the addition without bringing on record, any corroborative documentary evidence in support of the addition of Rs.1,49,855/-. Therefore, this is hereby deleted. 11. The counsel has also submitted a written note challenging reopening u/s 147 wherein he argued that no reopening u/s 147 can be made merely on the basis of AIR information. Since, the issue of 147 is not arising out of the appeal, hence, it is dismissed as not maintainable. ITA No. 12/Asr/2021 Ajay Kumar Nivrutti v. DCIT 7 12. In the result, the appeal filed by the assessee is allowed in the terms indicated as above. Order pronounced in the open court on 08.08.2022. Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy By Order