SHRI BISHAN LAL, AJMER V. INCOME TAX OFFICER, WARD-2-3, AJMER

ITA 1287/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7946 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-03-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 15-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT LD DR DHK
• Assessee Lawyers: SATISH SIBNANI CA LD
• Keywords: Reopening of assessment; Principle of natural justice
• Section: 142(1); 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S SMC, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM VK;DJ VIHY LA-@ ITA NO. 1287/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2010-11 SHRI BISHAN LAL S/O SHRI LADU LAL JI, FARKIYA ROAD, KHEDA SRINAGAR, AJMER V S. I.T.O., WARD 2(3), AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADSPL7823R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SATISH SIBNANI, CA, LD.AR JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA, JCIT, LD.DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15/04/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 23/04/2019 VKNS'K@ ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E EX PARTE ORDER OF LD.CIT(A), AJMER DATED 25/07/2018 FOR THE A.Y. 2010 -11 IN THE MATTER OF AN ASSESSMENT ORDER PASSED U/S. 144 R.W.S 147 OF TH E INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. I HAVE HEARD THE RIVAL CONTENTIONS AND CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT AFTE R RE-OPENING OF ASSESSMENT THE AO MADE ADDITION ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT OF RS. 13,24,650/-. THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A), WHICH WAS DELAYED BY 30 DAYS. BEFORE THE LD. CIT(A) THE ASSESSEE EXPLAINED THE REASONS FOR DELAY, HOWEVER, THE LD. CIT(A) DID NOT ITA NO. 1287/JP/18 BISHAN LAL 2 AGREE WITH THE SAME AND DISMISSED THE APPEAL OF ASS ESSEE BY OBSERVING THAT THE ASSESSEE DID NOT HAVE SUFFICIENT CAUSE FOR NOT FURNISHING THE APPEAL WITHIN THE PERIOD SPECIFIED U/S. 249(2) OF T HE ACT. IT WAS CONTENDED BY THE LD. AR THAT THE ASSESSEE IS A VILL AGER. BEFROE THE INCOME TAX AUTHORITIES THE ASSESSEE COULD NOT FURNISH SUBM ISSION DUE TO NOT ALLOWING PROPER TIME FOR SUBMISSION, IT IS SEEN IN THE BODY OF THE ASSESSMENT ORDER WHICH IS PASSED BY THE LEARNED ITO IN WHICH THE CASE WAS TRANSFERRED FROM ITO, W-1(1), AJMER ON 31/08/20 17. DUE TO CHANGE OF INCUMBENT, NOTICE U/S. 142(1) WAS ISSUED ON 04/0 9/2017 TO THE ASSESSEE FOR FIXING THE CASE FOR HEARING ON 13/09/2 017 WHICH WAS SERVED UPON THE ASSESSEE THROUGH SPEED POST. IN COMPLIANCE THERETO NONE ATTENDED NOR ANY REPLY FILED BY THE ASSESSEE. FURTH ER A LETTER DATED 25/09/2017 WAS ISSUED THROUGH SPEED POST NO. ER 617 946939IN FOR FIXING THE CASE FOR HEARING ON 09/10/2017 WHICH WAS SERVED ON 28/09/2017, BUT NO RESPONSE WAS RECEIVED. ONE ANOTHER LETTER DATED 25/09/2017 WAS ALSO ISSUED THROUGH SPEED POST ON ASSESSEES ANOTHER ADD RESS I.E 283, KUMAWAT MOHALLA, SRINAGAR, TEHSIL-NASIRABAD, AJMER WHICH WAS ALSO SERVED UPON THE ASSESSEE ON 28/09/2017. THE AO HAS PASSED ORDER U/S. 144 AND HE HAS NOT APPLIED LAW OF NATURAL JUSTICE, HE HAS NOT ALLOWED BASIC EXEMPTION, ETC. 3. IT WAS FURTHER SUBMITTED BY HIM THAT THE ASSESSE E HAS NO TAXABLE INCOME THEREFORE HE WAS NOT LIABLE TO FILE INCOME-T AX RETURN U/S. 139(9) OF THE I.T. ACT, 1961. THE AO HAS ISSUED NOTICE U/S. 1 48 THE INFORMATION IS ITA NO. 1287/JP/18 BISHAN LAL 3 PASSED TO HIM THROUGH OTHER AGENCY. AS PER DECISION OF NIRMALA AGARWAL VS. ACIT [2018] 64 ITR (TRIB.)658 .. IN WHICH TH E TRIBUNAL DECLARED THE VALIDITY OF RE-ASSESSMENT PROCEEDINGS HAS TO BE JUD GED WITH THE MATERIAL AVAILABLE WITH THE AO AND OPINION ARE STRICTLY BASE D ON DOCUMENTS AND INFORMATION IN POSSESSION OF THE AO AND NO REOPENIN G CAN BE MADE IN MECHANICAL MANNER. REOPENING CANNOT BE BASED ON BOR ROWED SATISFACTION OF THE AO IS THE BASIC NECESSITY AND OTHER DECISION S ARE ALSO IN FAVOUR OF ASSESSEE. THE LD. CIT(A) HAS NOT CONSIDERED THE FAC TS OF THE CASE AND DECLARED APPEAL HAS NOT BEEN ADMITTED. THE LD.AR FU RTHER SUBMITTED THAT THE ASSESSEE IS A VILLAGER HE IS NOT AWARE OF THE I NCOME TAX LAWS, ETC; THEREFORE, HE HAS PRAYED BEFORE THE LD.CIT(A) TO AL LOW DELAY CONDONE. THERE IS A DECISION IN FAVOUR OF ASSESSEE THE HON BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. M.S.I K ATIJI & ORS [ 167 ITR 471(1987]. PLEASE CONSIDER THE MATTERS SYMPATHETICA LLY FOR DELAY CONDONATION. 4. THE LD.DR, ON THE OTHER HAND, RELIED ON THE ORDE RS OF THE AUTHORITIES BELOW. 5. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT THE ASSESSEE IS OWNER OF TWO TRUCKS ( NO. RJ 01-GA 3315 AND RJ 06-GA 2282]. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD DERIVED RECEIP T FROM THESE TRUCKS AND DEPOSITED THE AMOUNT IN THE SAVING BANK ACCOUNT . AS PER SECTION 44AE OF THE I.T ACT, 1961 RS.3500/- PER MONTH FOR O NE TRUCK FOR HEAVY ITA NO. 1287/JP/18 BISHAN LAL 4 GOODS THE ASSESSEE HAD TWO TRUCKS THEREFORE HIS INC OME IS PRESUMED TO (RS.3500X2X12= RS.84,000/- P.A). RS. EIGHTY FOUR TH OUSAND ONLY. THE ASSESSEE IS ALSO OWNER OF AGRICULTURAL LAND AND HE HAS BEEN GROWING CROPS AND ITS INCOME IS NEAR ABOUT RS.15,000/- P.A. ON TH E ANALYSIS OF SAVING ACCOUNT, IT APPEARS THAT THE CLOSING BALANCE ON DAT ED 30/03/2010 IS RS.30,514/-, THE ASSESSEE IS DEPOSITING CASH AND WI THDRAWING CASH FROM BANK FOR THE TRANSPORTATION OF TRUCK, ETC. HOWEVER, BY PASSING EX-PARTE ORDER, THE AO HAS CONFIRMED THE ADDITION. IN THE SU BSTANTIAL INTEREST OF JUSTICE, I RESTORE BACK THE MATTER TO THE FILE OF A O FOR DECIDING THE MATTER AFRESH AFTER CONSIDERING THE ABOVE FACTS. I ALSO DI RECT THE ASSESSEE TO APPEAR BEFORE THE AO WITHIN 60 DAYS FROM RECEIPT OF THIS ORDER. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD APRIL, 2019. JES'K LH 'KEKZ (RAMESH C SHARMA) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23 APRIL, 2019 ITA NO. 1287/JP/18 BISHAN LAL 5 *PP/SPS VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI BISHAN LAL S/O SHRI LADU LAL JI, FARKIYA ROAD, KHEDA SRINAGAR, AJMER 2. IZR;FKHZ @ THE RESPONDENT-THE ITO, WARD 2(3), AJMER. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1287/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR