Bhupendra K.Pathak, Pune V. Income-tax Officer, Ward - 13 (3), Pune

ITA 1333/PUN/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4884 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-02-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 05-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED
• Keywords: Reason to believe; TDS
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE VIRTUAL COURT BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.1333/PUN/2019 / ASSESSMENT YEAR : 2009-10 BHUPENDRA K. PATHAK, B-103, SUPREME GREEN WOOD, HINDUSTAN PROPERTIES, NIBM ROAD, KONDHWA, PUNE 411 018 MAHARASHTRA PAN : AJUPP1585E VS. ITO, WARD-13(3), PUNE (APPELLANT) (RESPONDENT) / ORDER PER R.S. SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASS ED BY THE CIT(A)-5, PUNE ON 28-06-2019 IN RELATION TO THE ASSESSMENT YEAR 2009-10. 2. THE FIRST LEGAL ISSUE RAISED BY THE ASSESSEE IN THIS APPEA L IS AGAINST THE ADDITION OF RS.2,18,000/- MADE BY THE ASSESSIN G OFFICER (AO) IN THE ORDER U/S 143(3) READ WITH SECTIN 147 O F THE ACT, WHICH GOT CONFIRMED IN THE FIRST APPEAL. THE ASSESSEE HAS APPELLANT BY SHRI K. SRINIVASAN RESPONDENT BY SHRI SUDHENDU DAS DATE OF HEARING 11-02-2021 DATE OF PRONOUNCEMENT 11-02-2021 ITA NO. 1333/PUN/2019 BHUPENDRA K. PATHAK 2 MADE OUT A CASE THAT THIS ADDITION OUGHT NOT TO HAVE BEEN MAD E AS THE SAME DID NOT EMANATE FROM THE REASONS RECORDED B Y THE AO AND THERE WAS NO ADDITION ON THE BASIS OF WHICH THE REASSESSMENT WAS INITIATED. 3. I HAVE HEARD THE RIVAL SUBMISSIONS THROUGH VIRTUAL COURT AND PERUSED THE RELEVANT MATERIAL ON RECORD. A COPY OF R EASONS RECORDED BY THE AO FOR THE YEAR UNDER CONSIDERATION HAS BEEN PLACED AT PAGE 11 OF THE PAPER BOOK, READING AS UNDER : ON VERIFICATION OF THE RETURN OF INCOME DECLARING TOTAL OF RS.837500 ON 31-03-2009 VIDE ACK NO.0713003917. 2. ON VERIFICATION OF THE RETURN IT IS OBSERVED THAT ASSESSEE HAS NOT REFLECTED THE INCOME EARNED FROM M/S. HYDERABAD RACE CLUB TO RACE HOARSE OWNERS AMOUNTING TO RS.1172875/- FOR THE F.Y. 2008-09 AS PER INFORMATION AVAILABLE WITH THIS OFFICE AND LETTER RECEIVED FROM CHIEF COMMISSIONER OF INCOME TAX-I(CCA), HYDERABAD (A.P.) CONTAINING THE FOLLOWING : DURING A TDS SURVEY CONDUCTED AT M/S. HYDERABAD RACE CLUB, IT WAS NOTICED BY SURVEY TEAM THAT CERTAIN PAYMENTS PERTAINING TO THE F.Y. 2008-09 TO 2012-13 WERE MADE BY HYDERABAD RACE CLUB TO THE RACE HORSE OWNER WHO ARE BEING ASSESSED OUTSIDE A.P. REGION. THE PAYMENTS ARE SUBSTANTIAL AND HAVE COME TO NOTICE ON ACCOUNT OF NON-DEDUCTION TDS. 3. IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY RS.11,72,875/- FOR F.Y. 2009-10. I HAVE REOPENED THE SAID ASSESSMENT U/S.147 OF THE IT ACT, 1961. ITA NO. 1333/PUN/2019 BHUPENDRA K. PATHAK 3 4. ISSUE NOTICE U/S.148 OF IT ACT, 1961 FOR A.Y. 2009- 10 ACCORDINGLY. 4. IT IS SEEN FROM THE ORDER PASSED BY THE AO THAT THE ONLY ADDITION MADE BY HIM IS OF RS.2,18,000/- REPRESENTING UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT. ON A CONJOIN T READING OF THE `REASONS ALONG WITH THE ORDER U/S 147 OF THE ACT, IT IS PALPABLE NO ADDITION ARISING FROM THE REASONS FOR THE REASSESSMENT WAS MADE. AN ALTOGETHER SEPARATE ADDITION OF RS.2,18,000/- WAS MADE, WHICH ADMITTEDLY DID NOT HAVE ANY CONNECTION WITH THE INITIATION OF RE-ASSESSMENT. 5. IT IS FURTHER WORTHWHILE TO NOTE THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. JET AIRWAYS (I) LTD. (2011) 331 ITR 236 (BOM) HAS HELD THAT THE AO CANNOT PROCEED WITH RE-ASSESSMENT IF THE GROUNDS MENTIONED IN RE-ASSESSMENT AR E NON-EXISTENT I.E., IF NO ADDITION IS MADE ON THAT SCORE. WH EN I EXAMINE THE FACTUAL SCENARIO OBTAINING IN THE INSTANT CASE ON THE TOUCHSTONE OF THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE ABOVE DECISION, THE INESCAPABLE CONCLUSION WHICH CAN BE DRAWN IS THAT THE ONLY ADDITION MADE IN THE RE- ASSESSMENT ON A GROUND DIFFERENT FROM THE ONE FOR WHIC H NOTICE ITA NO. 1333/PUN/2019 BHUPENDRA K. PATHAK 4 U/S 148 OF THE ACT WAS ISSUED, LACKS LEGALITY. THE SAME IS, THEREFORE, DELETED. 6. IN THE RESULT, THE APPEAL IS ALLOWED IN THE ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH FEBRUARY, 2021. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 11 TH FEBRUARY, 2021 SATISH / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-5, PUNE 4. THE PR. CIT-5, PUNE 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO. 1333/PUN/2019 BHUPENDRA K. PATHAK 5 DATE 1. DRAFT DICTATED ON 11-02-2021 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 11-02-2021 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. *