Kailash Ravindrappa Sakhare, Aurangabad V. Pr. Commissioner of Income-tax : 1, Aurangabad

ITA 1290/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2865 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.1290/PUN/2017 / ASSESSMENT YEAR : 2012-13 KAILASH RAVINDRAPPA SAKHARE, PLOT NO.461, SHIVAJI ROAD, MARWADI GALLI INGALE, VAIJAPUR, AURANGABAD 423 701 PAN : ADNPS2792M VS. PR. CIT-1, AURANGABAD APPELLANT RESPONDENT / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DA TED 22-03-2017 PASSED BY THE PR. CIT-1, AURANGABAD U/S. 26 3 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE ASSESSMENT YEAR 2012-13. 2. BRIEFLY STATED, THE FACTUAL MATRIX OF THE CASE IS THAT THE ASSESSEE FILED RETURN DECLARING TOTAL INCOME AT RS.3,60,520/ -. THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT AT THE RETU RNED ASSESSEE BY NONE REVENUE BY SHRI DEEPAK GARG DATE OF HEARING 16-03-2020 DATE OF PRONOUNCEMENT 16-03-2020 ITA NO.1290/PUN/2017 KAILASH R. SAKHARE 2 INCOME. THEREAFTER, THE LD. PR. CIT, ON VERIFICATION OF REC ORD, OBSERVED THAT THE ASSESSEE CREDITED A SUM OF RS.2.00 LA KH IN THE ACCOUNT OF M/S. NITIN SALES CORPORATION AND DEBITED A SUM OF RS.7.00 LAKH IN THE SAME ACCOUNT, WHICH THE AO FAILED TO E XAMINE. ON BEING CALLED UPON TO EXPLAIN THE ENTRIES, THE ASSESSEE SU BMITTED THAT SHRI NITIN BHUSARE, PROPRIETOR OF M/S. NITIN SALES CORPORATION , IS A CLOSE RELATIVE OF THE ASSESSEE WHO WAS ALSO HAVING BUS INESS RELATIONS. THE ASSESSEE FURNISHED DETAIL OF RS.2.00 LAKH TAKEN FROM HIM BY CHEQUE AND RS.7.00 LAKH GIVEN BACK TO HIM AGAIN BY CHEQUE. NOT ONLY THAT, THE ASSESSEE FURTHER EXPLAINED THE S OURCE OF RS.7.00 LAKH AS HAVING BEEN RECEIVED FROM M/S N.K. DEVE LOPERS, IN WHICH BOTH THE ASSESSEE AS WELL AS SH. NITIN BHUSARE WERE PARTNERS. THE ASSESSEE FURNISHED A COPY OF INCOME-TAX RETURN OF M/S N.K. DEVELOPERS FOR THE YEAR UNDER CONSIDERATION HIGHLIG HTING THE FIGURE OF CAPITAL ACCOUNT BALANCE ALONG WITH THE BALANCE S HEET OF THE FIRM. THE ASSESSEE ALSO FURNISHED THE PERMANENT AC COUNT NUMBER OF M/S. NITIN SALES CORPORATION AND SUBMITTED THAT HE W AS REGULARLY ASSESSED TO TAX AT AHMEDNAGAR DISTRICT. THE LD. PR. CIT HELD THE ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE ON THE GROUND THAT AO DID NOT CARRY OU T ITA NO.1290/PUN/2017 KAILASH R. SAKHARE 3 INQUIRY OF THE ISSUE. AGGRIEVED THEREBY, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE LD. DR AND GONE THROUGH THE RELEVA NT MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE DESPITE NOTICE. AS SUCH, WE ARE PROCEEDING TO D ISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE. 4. IT IS SEEN FROM THE IMPUGNED ORDER THAT THE LD. PR. C IT INITIATED PROCEEDINGS U/S.263 PRIMARILY ON THE GROUND THAT THE ASSE SSEE RECEIVED RS.2.00 LAKH FROM AND PAID RS.7.00 LAKH TO M/S. NITIN SALES CORPORATION, WHICH ASPECT WAS NOT GONE INTO BY THE AO . THE ASSESSEE FURNISHED ALL THE RELEVANT DETAILS TO THE LD. PR. CIT B Y GIVING ELABORATE RESPONSE WHICH HAS BEEN REFERRED TO HERE INABOVE AND ALSO REPRODUCED IN THE IMPUGNED ORDER. NOT ONLY DID TH E ASSESSEE EXPLAIN THE SOURCE OF PAYMENT OF RS.7.00 LAKH GIVEN TO SHRI NITIN BHUSARE BUT ALSO GAVE THE PERMANENT ACCOUNT NUMBE R AND OTHER RELEVANT INCOME-TAX DETAILS OF M/S N.K. DEVELOPERS AND ALSO SHRI NITIN BHUSARE. NO INFIRMITY WHATSOEVER WAS FOUND B Y THE LD. PR.CIT IN SUCH DETAILS. DESPITE THAT, HE PROCEEDED WITH SETTING ASIDE THE ASSESSMENT ORDER. IN OUR CONSIDERED OPIN ION, IF THERE IS AN ASPECT OF THE ASSESSMENT WHICH DOES NOT FIND ME NTION IN ITA NO.1290/PUN/2017 KAILASH R. SAKHARE 4 THE ASSESSMENT ORDER, THE PR. CIT CAN RIGHTLY INVOKE HIS POW ER U/S.263. HAVING INVOKED SUCH A POWER, IF THE ASSESSEE FURNISHES DETAILS PROVING THE VERACITY OF THAT ASPECT OF THE ASSESSMENT , WHICH PRIMA FACIE APPEAR TO BE CORRECT AND ARE FURTHER NOT FAULTED WITH, THEN THE PR. CIT CANNOT TREAT THE ASSESSMENT ORDER ERRONEO US AND PREJUDICIAL TO THE INTEREST OF REVENUE ON THAT SCORE AND DIRE CT THE AO TO EXAMINE IT DE NOVO . EXTANTLY, WE ARE CONFRONTED WITH A SITUATION IN WHICH THE ASSESSEE DID FURNISH ALL THE RELEVANT DETAILS OF THE RECEIPT FROM AND PAYMENT TO M/S. NITIN SALES CORPORATION. T HE LD. PR. CIT DID NOT FIND ANYTHING AMISS IN SUCH DETAILS. IN TH AT CASE, HE COULD NOT HAVE SET ASIDE THE ASSESSMENT ORDER AND DIREC TED THE AO TO RE-EXAMINE THE SAME. THE IMPUGNED ORDER, BEING CO NTRARY TO LAW, CANNOT BE SUSTAINED. WE, THEREFORE, QUASH IT. 5. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MARCH, 2020. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VIC E PRESIDENT PUNE; DATED : 16 TH MARCH, 2020 ITA NO.1290/PUN/2017 KAILASH R. SAKHARE 5 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE PR.CIT-1, AURANGABAD 4. , , / DR B, ITAT, PUNE 5. / GUARD FILE / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 16-03-2020 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 16-03-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *