SHRI ASHIQ HUSSAIN NAJAR, SRINAGAR V. INCOME TAX OFFICER WARD- 3 (1), SRINAGAR

ITA 13/ASR/2023

AI Insights

The case involves Ashiq Hussain Najar, an employee and divisional manager at Bata India Ltd., who appealed against the order of the Commissioner of Income Tax (Appeals), which upheld the AO's assessment order. The AO had made additions to the assessee's income based on cash deposits and bank transfers, treating them as undisclosed income and business receipts, respectively. The Tribunal noted that the assessee had not benefited personally from the cash deposits, as they were part of his duties to manage sales for Bata India Ltd. The Tribunal found the initial assessments and the subsequent appeal ex parte, lacking merit in their conclusions, and thus remitted the matter back to the AO for a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 114864 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-06-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 11-01-2023
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARSHAD HUSSAIN MIR
• Section: 148; 144; 133(6); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No.13/Asr/2023 Assessment Year: 2012-13 Ashiq Hussain Najar, Room No. 17, 2 nd Floor Auqaf Building Auqaf Market Budshah Chowk. Jammu & Kashmir. [PAN:-AAOPN6696F] (Appellant) Vs. ITO-Ward 3(1), Srinagar. (Respondent) Appellant by Sh. Arshad Hussain Mir, CA. Respondent by Sh. PrashantSingh, Sr. DR Date of Hearing 20.06.2023 Date of Pronouncement 07.07.2023 ORDER Per:Anikesh Banerjee, JM: The instant appeal of the assessee was filed against the order of the ld. Commissioner of Income Tax (Appeals), NFAC, Delhi,[in brevity the ‘CIT (A)’],order passed u/s 250of the Income Tax Act 1961, [in brevity ‘the Act’] for I.T.A. No.13/Asr/2023 Assessment Year: 2012-13 2 A.Y. 2012-13. The impugned order was emanated from the order of the ld. Income Tax Officer, Ward -1, Srinagar,[in brevity ‘the AO’] order passed u/s 144 r.w.s. 147 of the Act. 2. The assessee has taken the following grounds: 1. The order passed by CIT(A) U/s 250 is bad in law, as the appeal stands dismissed without adjudging the grounds of appeal. 2. The Ld. AO erred in opening the assessment purely on AIR information rather on any tangible evidence, for the purpose ofj making a roving and fishing inquiry to verify as the weather any income has in fact escaped assessment. 3. That the order passed by the Ld. AO is bad in law. Asthe order passed by the Ld. AO without serving of notice u/s 148 of the IT Act 1961. 4. That Ld. AO erred in both facts & laws by treating the entire cash deposits of Rs 29,41,390/- as undisclosed income, when the same represents receipts of M/s BATA INDIA LIMITED sale and subsequently remitted to the company on regular basis. 5. That Ld. AO erred in both facts & Laws by treating the bank transfer Rs. 5,97,065/- as business receipts, when the same represents receipts of M/s BATA INDIA LIMITED as I.T.A. No.13/Asr/2023 Assessment Year: 2012-13 3 salary and receipts of M/s BATA INDIA LIMITED sale subsequently remitted to the company on regular basis. 6. The Assessment is based on surmises and conjectures and the Ld. AO has made unjustified additions.” 3. Brief fact of the case is that the assessee is an employee of M/s Bata India Ltd. And also. in-charge of the Bata India Ltd., Nowhatta, Bata store and working in the position of district manager. The assessee claimed during impugned assessment year the entire sale of Bata India Ltd. related to this zone was deposited in his own bank account. The ld. AO found that total deposit inJ& K Bank Ltd.bearing account no-0038040100068057 amount Rs. 35,38,455/-out of which amount Rs. 29,41,390/- was cash deposit and amount to Rs. 5,97,065/- was credit. The assessee was non filer of income tax return during impugned assessment year. The notice u/s 133(6) was issued to the assessee by the ld. AO. Later, the proceeding u/s 148 was initiated. The assessment was framed u/s 144/147 of the Act. Due to non-compliance from the end of the assessee the addition was made on entire cash deposit amount to Rs.29,41,390/- and the ld. AO had calculated net profit @8% on credit amount of Rs.597,065/- which works out to amount to Rs. 47,765/-. The addition was confirmed amount to Rs. 29,89,1555/- (Rs.29,41,390/- (+) Rs.47,765/-) which was added in. Further Rs.5,866/- was added related to un- I.T.A. No.13/Asr/2023 Assessment Year: 2012-13 4 explain of 8% on unexplained amount to Rs.73334/-. The ld AO further investigated and found that in J & K Bank Ltd, bearing A/c no-0038265300000971 total amount was credited amount to Rs. 73,334/-. The ld. AO treated the amount as business turnover and calculated net profit @8% on Rs. 73,34/- which works out amount to Rs. 5866/-. The profit element amount to Rs. 5866/- was added back with total income. Aggrieved assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) passed the order ex parte and upheld the order of the ld. AO. Being aggrieved assessee filed an appeal before us. 4. The ld. Counsel for the assessee placed the paper book which is kept in the record. The ld. AR further placed that the assessee is an employee of Bata India Ltd. and working as a Divisional Manager. The copy of the appointment letter is annexed in APB page 7. The ld. AR placed the copy of bank statement and the list of payment to Bata India Ltd. related to cash receipt by the assessee on behalf of his employer,APB page 8 to 18. The ld. AR placed that the entire cash sale was deposited in the account of the assessee and finally the cheque or demand draft was issued to Bata India Ltd. for reimbursement of the payment. So, the entire cash is not belonging to the assessee. The assessee was working as an agent of the I.T.A. No.13/Asr/2023 Assessment Year: 2012-13 5 company. The confirmation letter from Bata India Ltd related to received of payment, is annexed APB page 19 to 21. 5. The ld. DR vehemently argued and relied on the order of the revenue authorities. 6. We heard the rival submission and relied on the documents available in the record. The assessee is a divisional manager of Bata India Ltd. On perusal of the record, we found that the assessee received the cash and paid directly to the Bata India Ltd. The consumable goods of Bata India Ltd (here in after called company).were sold by cash through the supervision of assessee. The assessee was not beneficiary. The cash was deposited in the bank account. On the other hand, the amount was paid to company. The ld. AR enclosed the form-26AS, APB pages 24 to 27 which clearly indicated that assessee received the salary from the company. But both assessment and appeal are ex parte. The assessee was unable to submit the relevant documents before the authorities. The ld. CIT(A) adjudicated and passed the order without any merit. Considering the submission of the ld. AR we remit back the matter to the ld. AO for adjudication of the issue in the light of discussion indicated above. Needless to say, the assessee should get a reasonable opportunity of hearing in the setting aside proceedings. I.T.A. No.13/Asr/2023 Assessment Year: 2012-13 6 7. In the result, the appeal of the assessee bearing ITA No. 13/Asr/2023is allowed for statistical purposes. Order pronounced in the open court on 07.07.2023 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order