Rakesh Kumar, Jind V. ITO, Jind

ITA 13/CHANDI/2017

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8214 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: GAURAV MITTAL
• Section: 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 13/CHD/2017 ASSESSMENT YEAR: 2009-10 SH. RAKESH KUMAR, VS. THE ITO, WARD-3, JIND, HARYANA JIND PAN NO. AMPPK5494B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. GAURAV MITTAL RESPONDENT BY : SH. S.K. MITTAL DATE OF HEARING : 23.02.2017 DATE OF PRONOUNCEMENT : 03.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 17.10.2016 OF CIT(A) , HISAR PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. BECAUSE THE ACTION IS UNDER CHALLENGE UNDER THE FAC TS AND LAW BY UPHOLDING THE ADDITION OF RS. 3,59,700/- WHI CH IS BEING CONTESTED AND PRAYED FOR DELETION OF THE SAME ON THE MERITS OF MATERIAL ON RECORD. 2. BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS AND LAW SINCE NOT HAVING APPRECIATED THE FACTS, DOCUMENTS, EVIDENCES, DECISIONS RELIED AND PROVISION OF ACT IN ITS TRUE SENSE AND SPIRIT. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASS ESSEE WHO IS STATED TO BE ENGAGED IN POULTRY FARMING RETURNED THE INCOME OF R S.1,49,370/-. THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.1,70,00 0/-. THE CIT(A) HISAR EXERCISING THE REVISIONARY POWERS SET ASIDE THE AFO RESAID ASSESSMENT ORDER HOLDING THAT THE ASSESSMENT MADE WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. PURSUANT TO THIS DIRECTION, T HE ASSESSING OFFICER IN THE ORDER U/S 143(3)/263 PROCEEDINGS NOTED THAT THE ASS ESSEE HAD DEPOSITED RS. 18,99,700/- IN CASH IN THE BANK ACCOUNT MAINTAINED WITH ICICI BANK. ACCORDINGLY HE REQUIRED THE ASSESSEE TO EXPLAIN THE SAME. THE EXPLANATION OFFERED BY THE ASSESSEE WAS HELD TO BE NOT SATISFAC TORY LEADING TO THE ADDITION OF THE SAID AMOUNT IN THE HANDS OF THE ASS ESSEE. IN APPEAL BEFORE 2 FIRST APPELLATE AUTHORITY, THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE REPRODUCED IN PARA 3.3 WERE NOT CONSIDERED AS RELIEF WAS GRANTED ONLY ON THE ALTERNATE WITHOUT PREJUDICE PRAYER. THU S STILL AGGRIVED THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 3. MR. GAURAV MITTAL APPEARING ON BEHALF OF THE ASS ESSEE SUBMITTED THAT IT HAD BEEN ARGUED BEFORE THE CIT(A) THAT IN THE PR OCEEDINGS U/S 263 (1) OF THE ACT, THE STATEMENT OF THE ASSESSEE HAD BEEN REC ORDED ON 1.5.2013 IN WHICH IT HAD BEEN STATED THAT TWO SHEDS HAD BEEN CO NSTRUCTED BY HIS FATHER IN 2001 AND PRIOR TO 2007-08 THE ASSESSEE WAS ENGAG ED IN JOB WORK FOR SKYLARK HATCHERIES PVT. LTD VILLAGAE URLANA, PANIPA T ON CONTRACT BASIS AND HE HAD STARTED HIS OWN BUSINESS OF PURCHASING CHICK S AND GROWING THEM TO BROILERS. RELEVANT BANK ACCOUNT AND BOOKS OF ACCOU NT, IN SUPPORT OF THE CLAIM HAD BEEN PRODUCED INCLUDING, BALANCE SHEET, CAPITAL ACCOUNT, PROFIT AND LOSS ACCOUNT AND COMPUTATION OF INCOME FROM 200 8-08 TO 2009-10 ASSESSMENT YEARS HAD ALL BEEN SHOWN. ALONGWITH THE THESE DETAILS THE RELEVANT DETAILS OF HIS FATHER SHRI SURAJ MAL HAD A LSO BEEN SHOWN. IT WAS SUBMITTED THAT SINCE OPENING CASH IN HAND AND SALES EFFECTED COULD NOT BE VERIFIED IN THE ABSENCE OF VOUCHERS ETC. IN THE 263 PROCEEDINGS, THE SOURCE OF DEPOSITS HAS BEEN CONCLUDED TO BE UNVERIFIED. I N THESE CIRCUMSTANCES, IT WAS SUBMITTED THAT THE FINDINGS RECORDED IN PARA 4. 3 BY THE CIT(A) IS NOT CORRECT. IT WAS ALSO HIS SUBMISSION THAT THE BANK A CCOUNTS ARE OLD AND THE BANK HAS DECLINED TO PROVIDE COPY OF BANK ACCOUNT S TATEMENT STATING THAT IT IS NOT POSSIBLE TO PROVIDE THEM. THUS, IT WAS HIS S UBMISSION THAT SINCE THE ALTERNATIVE PRAYER OF THE ASSESSEE HAS BEEN ACCEPTE D IN PART, THE PEAK CALCULATION MAY BE RETAINED AND MAY BE DIRECTED TO ALSO GIVE THE BENEFIT OF OPENING CASH IN HAND WHICH HAD NOT BEEN GIVEN EFFEC T TO. IN THE AFORESAID PECULIAR FACTS AND CIRCUMSTANCES, IT WAS HIS LIMITE D PRAYER THAT THE RELIEF MAY BE GRANTED BY WAY OF AN ESTIMATE AS TO HOW MUCH OPENING CASH COULD BE SAID TO BE WITH ON ASSESSEE WHO WAS FILING HIS R ETURN OF INCOME FROM 2003-04 ASSESSMENT YEAR. IT WAS ALSO HIS SUBMISSION THAT IN CASE THE ISSUE IS RESTORED HE WOULD ENDEAVOR TO OBTAIN RELEVANT DE TAILS FROM THE BANK. THE SAID REQUEST WAS NOT OBJECTED TO BY THE LD. SR. DR. 4. I HAVE HEARD THE RIVAL SUBMISSION AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. IN THE LIGHT OF THE SUBMISSIONS OF THE P ARTIES BEFORE THE BENCH, I 3 AM OF THE VIEW THAT IT WOULD BE APPROPRIATE TO REST ORE THE ISSUE BACK TO THE CIT(A) WITH A DIRECTION TO CONSIDER THE MATERIAL AV AILABLE ON RECORD AND ALLOW APPROPRIATE RELIEF BY WAY OF AN ESTIMATE. IN CASE THE LD. CIT(A) DEEMS IT APPROPRIATE THE ASSESSEE MAY BE DIRECTED T O OBTAIN THE SPECIFIC BANK STATEMENT FOR THE PERIOD UNDER CONSIDERATION. TO M Y UNDERSTANDING THE BANKS UNDER THE LAWS OF THE LAND ARE REQUIRED TO PR OVIDE COPIES OF THE STATEMENT OF ACCOUNT MAINTAINED BY THE CUSTOMERS. I N ORDER TO COVER ITS COST OF LABOUR INVOLVED PAYMENT FOR IT IS REQUIRED BY THE BANK TO BE DEPOSITED IN THE BANK FOR WHICH A RECEIPT IS ISSUED . IT IS NOT FEASIBLE TO ACCEPT THAT THE DETAILS ARE NOT CAPABLE OF BEEN O BTAINED. THE BANK CANNOT DENY THE INFORMATION. IT IS HOPED THAT THE OPPORTUN ITY SO PROVIDED TO THE ASSESSEE IN GOOD FAITH IS UTILISED FAIRLY AND COMPL ETELY. IN CASE THE ASSESSEE SEEKS TO ABUSE THE PROCESS OF LAW, IT IS M ADE CLEAR THAT THE COMMISSIONER (APPEALS) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE MATERIAL AVAILABLE ON RE CORD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. . ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER RKK/RATI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR