ITO, Varanasi V. Smt.Geeta Yadava, Varanasi

ITA 128/ALLD/2011

• Counselvise Citation: 12820714 RSA 2011
• Duration Of Justice: 1 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 23-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Assessee Lawyers: RAVIND SHUKLA
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Additional evidence; Corroborative evidences
• Section: 80C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 128/ALLD/2011 ASSTT. YEAR : 2008-09 INCOME-TAX OFFICER, VS. SMT. GEETA YADAV, RANGE-1(2) VARANASI. CK 48/142, HARHA, VARANASI . (PAN : AAYPA 9449 H) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI Y.P. SRIVASTAVA, DR RESPONDENT BY : SHRI RAVIND SHUKLA, ADVOCATE DATE OF HEARING : 31.10.2012 DATE OF PRONOUNCEMENT OF ORDER : 02.11.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A), VARANASI DATED 14.04.2011 FOR THE ASSESSMENT YEAR 2 008-09 ON THE FOLLOWING GROUNDS : 1. THAT THE ORDER OF LEARNED CIT(A) IS ERRONEOUS I N LAW AND ON FACTS. 2. THAT THE LEARNED CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITS FOR RS.41,40,000/-, AS THE ORDER OF THE CIT(A) IS BASED ON FRESH EVIDENCES WHICH IS CONTRAVENTION TO RULE 46A. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW & ON FACTS IN DELETING THE DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80C OF R S.34,224/-, AS THE ITA NO. 128/ALLD./2011 2 ORDER OF CIT(A) IS BASED ON FRESH EVIDENCES WHICH I S CONTRAVENTION TO RULE 46A. 2. THE ASSESSING OFFICER NOTED IN THE ASSESSMENT OR DER THAT THE ASSESSEE DID NOT MAKE COMPLIANCE TO THE STATUTORY NOTICES. THEREFORE , EXPARTE ASSESSMENT ORDER U/S. 144 OF THE IT ACT WAS PASSED. THE ASSESSEE FAILED T O SUBSTANTIATE THE UNEXPLAINED CASH CREDIT AS WELL AS NO SUPPORTING EVIDENCE WAS F ILED FOR CLAIMING DEDUCTION U/S. 80C OF THE IT ACT. THE ASSESSING OFFICER ACCORDINGL Y MADE ADDITION OF RS.41,40,000/- AND ALSO DISALLOWED CLAIM U/S. 80C O F THE IT ACT. THE ASSESSEE FILED WRITTEN SUBMISSIONS AND SUPPORTING EVIDENCES BEFORE THE LD. CIT(A) AND IN THE WRITTEN SUBMISSIONS, IT WAS CLAIMED THAT NO SUFFICI ENT TIME WAS GIVEN TO THE ASSESSEE TO MAKE COMPLIANCE, AS NO PROPER NOTICE HA S BEEN SERVED UPON THE ASSESSEE AND THE DETAILS CONTAINED IN THE PAPER BOO K CLEARLY SUPPORT AND EXPLAIN THE UNEXPLAINED CREDITS. CERTIFICATE OF LIC WAS ALSO FI LED TO CLAIM DEDUCTION U/S. 80C. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF THE A SSESSEE PASSED THE FOLLOWING ORDER : I AM OF THE OPINION THAT THE ASSESSEE HAS PROVED TH E ONUS FOR ALL LOAN CREDITORS. HENCE, THE AMOUNT OF RS.41,40,000/- IS H EREBY DELETED. 2.1 THE LD. CIT(A) WITH REGARD TO THE DEDUCTION U/S . 80C FOUND THAT THE CERTIFICATE OF PAYMENT OF PREMIUM IS ENCLOSED WITH THE SUBMISSIONS AND, ACCORDINGLY, THE DEDUCTION WAS ALLOWED IN FAVOUR OF THE ASSESSEE. ITA NO. 128/ALLD./2011 3 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T (A). IT IS NOT IN DISPUTE THAT THE ASSESSEE DID NOT COMPLY WITH ANY STATUTORY NOTICE B EFORE THE ASSESSING OFFICER AND NO DETAILS OR EVIDENCES WERE FILED TO EXPLAIN UNEXP LAINED CASH CREDIT AND NO CERTIFICATE WAS FILED TO CLAIM DEDUCTION U/S. 80C O F THE IT ACT. THUS, WHATEVER, EVIDENCES WERE FILED BEFORE THE LD. CIT (A), WERE T HE ADDITIONAL EVIDENCES IN NATURE. THEREFORE, THE LD. CIT (A) BEFORE CONSIDERI NG THE ADDITIONAL EVIDENCES SHOULD HAVE FOLLOWED THE PROCEDURE PROVIDED U/R. 46 A OF THE INCOME-TAX RULES, WHICH PROVIDES CERTAIN CONDITIONS, WHICH IF SATISFI ED BY THE ASSESSEE, THE LD. CIT(A) COULD ADMIT ADDITIONAL EVIDENCES AT THE APPE LLATE STAGE. HOWEVER, THE LD. CIT (A) DID NOT DISCUSS ANYTHING IN THE APPELLATE O RDER AS TO WHY HE HAS VIOLATED RULE 46A OF THE IT RULES. THE LD. CIT(A) INSTEAD OF FOLLOWING RULE 46A IN THE MATTER HAS FURTHER VIOLATED THE PROVISIONS OF SECTI ON 250(6) OF THE IT ACT BECAUSE THE LD. CIT(A) SHALL HAVE TO GIVE REASONS FOR DECIS ION IN THE APPELLATE ORDER. THE LD. CIT(A) WITHOUT GIVING ANY REASONS FOR DECISION IN T HE APPELLATE ORDER, ACCEPTED THE CLAIM OF THE ASSESSEE AND DELETED THE ADDITION ON A CCOUNT CASH CREDIT. THE OPERATIVE ORDER OF THE LD. CIT(A) IS NOTED ABOVE. THEREFORE, SUCH AN ORDER WHICH DID NOT GIVE ANY REASONS FOR DECISION CANNOT BE SUSTAINED IN LAW . IF THE ASSESSEE FILED ANY WRITTEN SUBMISSIONS AND ADDITIONAL EVIDENCE AT APPE LLATE STAGE, AT LEAST THE SAME ITA NO. 128/ALLD./2011 4 SHOULD HAVE BEEN CONFRONTED TO THE ASSESSING OFFICE R FOR HIS COMMENTS. THEREFORE, DELETING THE ADDITIONS IN EXPARTE CASE WITHOUT GIVI NG OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER IS ALSO VIOLATIVE OF PRINCIPL E OF NATURAL JUSTICE. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT THE O RDER OF THE LD. CIT(A) CANNOT BE SUSTAINED IN LAW. WE ACCORDINGLY, SET ASIDE THE ORD ER OF THE LD. CIT(A) AND RESTORE BOTH THE ISSUES TO THE FILE OF LD. CIT(A), VARANASI WITH THE DIRECTION TO RE-DECIDE BOTH THE GROUNDS AS PER LAW BY GIVING REASONABLE AN D SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS THE ASSESSIN G OFFICER. 4. IN THE RESULT, THE DEPARTMENTAL APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, ALLAHABAD 6. GUARD FILE ASSTT. REGISTRAR TRUE COPY