Ishrat Beg, Sitapur V. Income Tax Officer, Sitapur, Sitapur

ITA 132/LKW/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9770 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARISH GIDWANI
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “SMC”, LUCKNOW BEFORE SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA No. 132/Lkw/2021 Assessment Year 2012-13 Income Tax Officer, Eye Hospital Road, Sitapur-261001 Vs. Ishrat Beg, Katra Astal, Laharpur, Sitapur PAN – AOYPB5773P (Respondent) (Appellant) Shri Shubham Rastogi, CA Appellant by Shri Harish Gidwani, DR Respondent by 25/05/2022 Date of hearing 07/06/2022 Date of pronouncement O R D E R This appeal has been filed by the assessee against the order of the ld. CIT(A), dated 24.11.2021 for Assessment Year 2012-13. The grounds of appeal taken by the assessee are reproduced below: “That the Learned Courts Below are not justified in taking legal cognizance of proceedings U/s. 148. That the Learned Courts Below are not justified in treating the Deposits in Bank as Income from Other Sources. That the Learned Courts Below have also erred in not considering the legal and factual aspects of the case. That the Learned Courts Below are not justified in taking one view of the picture i.e. Credit side has been considered and no comment on the Debit side. That the CIT (Appeals) has also erred in not considering the finding of the Hon'able ITAT in similar case nor has categorically discussed on the Grounds of Appeal. That the findings of the Learned Courts Below are not valid, legal and proper. That relief as prayed may please be allowed and the Income Returned be accepted.” 2 2. The ld. AR at the outset submitted that the reopening u/s 148 of the Act is bad in law as the Assessing Officer has reopened the case u/s. 147/148 of the Act by taking cognizance of the deposits in the bank account. The ld. AR submitted that mere deposits in the bank account are not sufficient to hold that some income has escaped assessment. My attention was invited to judgment of the Delhi Tribunal in the case of Bir Bahadur Singh vs. ITO, 53 taxmann.com 366 wherein the Tribunal held that deposits in bank account may not be on account of some income and had quashed the assessment order by holding the reasons recorded were not sufficient to hold belief that income had escaped assessment. Therefore it was prayed that the assessment order passed u/s. 148 be quashed. 3. The ld. DR, on the other hand, submitted that on receipt of information that assessee had made certain deposits in the bank account the assessee was show caused to explain the deposits to which no reply was filed and nor anybody appeared on behalf of assessee and therefore there was no option left to the Assessing Officer other than to reopen the case and during reopening proceedings also nobody appeared and the Assessing Officer has passed order u/s. 144 r.w.s. 147 of the Act. Therefore, it was prayed that the legal issue taken by assessee is not sustainable as in this case, the assessee has not cooperated at all. The ld. AR in his rejoinder submitted that since the assessee was not served with the statutory notice, therefore, he was not obliged to file reply to such notice issued by Assessing Officer. 4. Hearing the arguments, I found that on receipt of information regarding deposits in bank, the assessee was show caused as to why his case be not reopened u/s. 147 of the Act to which nobody appeared nor filed any reply. The arguments of ld. AR that the assessee was not obliged to file any reply to a non statutory notice is of no force and therefore the first legal ground taken by the assessee is dismissed and it was conveyed in the open court itself. The ld. AR submitted that on merits also the assessee has a strong case. It was submitted 3 that assessee has been working as a sub agent to a LIC agent who has been collecting LIC premiums from remote places and has been depositing the same in his bank account and from where payments were made to LIC agent for onward payments to LIC. In this respect ld. AR invited my attention to various documents filed under Rule 29 as additional evidences. It was submitted that assessee could not explain its case to authorities below because of lack of knowledge and because of wrong advice given to him therefore it was prayed that the case of the assessee may be set aside to Assessing Officer who should readjudicate the issue after affording reasonable opportunity of being heard to the assessee. 5. The ld. DR had no objection if the case of assessee is reexamined in the light of additional evidences. 6. Hearing argument of ld. AR and ld. DR and after examination of the documents filed as additional evidences I hold that the case requires a fresh examination by Assessing Officer. Therefore, I set aside the order of ld. CIT(A) and direct the Assessing Officer to readjudicate the issue after giving adequate opportunity to the assessee of being heard. 7. In the result, appeal filed by the assessee is allowed for statistical purposes. (Order pronounced in the open court on 07/06/2022) Sd/- (T.S. Kapoor) Accountant Member Aks – Dtd. 07/06/2022 Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File Assistant Registrar