ITO, Chandigarh V. Sh. Pardaman Singh, Chandigarh

ITA 139/CHANDI/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60900 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-06-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 03-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment
• Section: 143(3); 234B; 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.139/CHD/2012 (ASSESSMENT YEAR : 2008-09) THE INCOME TAX OFFICER, VS. SH.PARDAMAN SINGH, WARD 3 (1), H.NO.160, SECTOR 19-A, CHANDIGARH. CHANDIGARH. PAN: AKBPS7380Q AND ITA NO.180/CHD/2012 (ASSESSMENT YEAR: 2008-09)) SH.PARDAMAN SINGH, VS. THE ADDL.C.I.T., # 115, SECTOR 36-A, RANGE-III, CHANDIGARH. CHANDIGARH. PAN: AKBPS7380Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI TEJ MOHAN SINGH DEPARTMENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 19.06.2012 DATE OF PRONOUNCEMENT : 26.06.2012 O R D E R PER SUSHMA CHOWLA, J.M, : THE CROSS APPEALS FILED BY THE REVENUE AND THE ASSE SSEE ARE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS ), CHANDIGARH DATED 02.11.2011 RELATING TO ASSESSMENT YEAR 2008-09 AGAI NST THE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (I N SHORT THE ACT). 2. THE CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE INVOLVING SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DIS POSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 3. THE REVENUE IN ITA NO.139/CHD/2012 HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES, THE CIT(A) HAS VIOLATE THE PROVISIONS OF RULE 46 A WHILE ADMITTING THE ADDITIO NAL EVIDENCES WITHOUT ALLOWING AN OPPORTUNITY TO THE A.O. TO EXAMINE THE SAME, WHICH WAS NEVER FURNISHED BY THE ASSESSEE DURING THE COURSE O F ASSESSMENT PROCEEDINGS. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES, THE CIT(A), IS RIGHT IN DELETING THE ADDITION OF RS.54,54,294/- MADE BY THE AO U/S 69 ON ACCOUNT OF UNEXPLAINED INVESTMENT ON THE BASIS OF A DDITIONAL EVIDENCES BY VIOLATING THE RULE 46A ,WHICH WAS NEVE R PRODUCED BEFORE THE AO. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES THE CIT(A), IS RIGHT IN DELETING THE ADDITION OF RS.76,16,051/- MADE BY THE AO U/S 68 ON ACCOUNT OF UNEXPLAINED CASH CREDITS ON THE BASIS OF ADDITIO NAL EVIDENCES BY VIOLATING THE RULE 46A WHICH WAS NEVER PRODUCED BE FORE THE AO. 4. THE ASSESSEE IN ITA NO.180/CHD/2012 HAS RAISED T HE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE IMPUGNED ORDER IS AGAINST FACTS AND LAW. 2. THAT THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX HAS ERRED IN ASSESSING TOTAL INCOME AT RS.1,51,79,140/- AS AG AINST THE RETURNED INCOME AT RS.7,02,980/- WITHOUT REJECTING THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 3. THAT THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX HAS ERRED IN TREATING THE GENUINELY CLAIMED EXPENSES AS BOGUS AT RS.14,05,811/-. 4. THAT THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX HAS ERRED IN MAKING ADDITION ON THE ALLEGATION OF UNEXPLAINED INVESTMENT AT RS. 54,54,294/- U/S 69 OF THE INCOME-TAX ACT, 19 61. 5. THAT THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX HAS ERRED IN MAKING ADDITION ON THE ALLEGATION OF UNEXPLAINED CASH CREDIT 3 AT RS. 76,16,051/- U/S 68 OF THE INCOME-TAX ACT, 19 61. 6. THAT THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX HAS ERRED IN MAKING DOUBLE ADDITION AT SEVERAL IN STANCES WITHOUT APPRECIATING THE FACTS OF THE CASE IN CORRECT PERSP ECTIVE. 7. THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX HAS E RRED IN LEVY INTEREST U/S 234B AT RS. 14,54,416/-. 8. THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX HAS E RRED IN INITIATING PENALTY PROCEEDING U/S 271(L)(C) OF THE INCOME TAX ACT. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER HAD RECEIVED INFORMATION THROUGH AIR IN RESPECT OF THE INVESTMENT IN MUTUAL FUNDS MADE BY THE ASSESSEE DURING THE FINANCIAL YEA R 2007-08. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF INVESTM ENT IN THE AFORESAID MUTUAL FUNDS, DURING THE COURSE OF ASSESSMENT PROCE EDINGS. THE ASSESSEE IN HIS BALANCE SHEET HAD SHOWN INVESTMENT IN MUTUAL FUNDS AT RS.4,50,000/- ONLY AND WHEN CONFRONTED WITH THE INF ORMATION RECEIVED FROM AIR OF INVESTMENT IN MUTUAL FUNDS TO THE TUNE OF RS.54,54,294/-, THE ASSESSEE FILED REVISED BALANCE SHEET BEFORE THE ASSESSING OFFICER REFLECTING THE ABOVE SAID INVESTMENT. THE ASSESSEE CLAIMS TO HAVE FILED THE EXPLANATION BEFORE THE ASSESSING OFFICER. HOWE VER, THE SAID EXPLANATION WAS NOT ACCEPTED BY THE ASSESSING OFFIC ER AS ACCORDING TO HIM, ENTRIES IN THE BANK ACCOUNT DO NOT MATCH WITH THE AMOUNTS OF INVESTMENT IN THE MUTUAL FUNDS. CONSEQUENTLY, THE ASSESSING OFFICER MADE ADDITION UNDER SECTION 69 OF THE ACT ON ACCOUN T OF UNEXPLAINED INVESTMENT IN MUTUAL FUNDS TOTALING RS.54,54,294/-. FURTHER ADDITION WAS MADE UNDER SECTION 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS IN THE BANK ACCOUNT TOTALING RS.7,61,605/-. FURTHER THE ASSESSING OFFICER HAD ESTIMATED INCOME IN THE HANDS OF THE AS SESSEE WITHOUT REJECTING THE BOOKS OF ACCOUNT OF THE ASSESSEE. 4 6. THE CIT (APPEALS) DELETED THE ADDITION MADE UNDE R SECTIONS 69 AND 68 OF THE ACT, HOWEVER CONFIRMED OTHER ADDITIONS MA DE BY THE ASSESSING OFFICER. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF T HE CIT (APPEALS) IN CONFIRMING THE ADDITION. THE REVENUE IS AGGRIEVED BY THE ORDER OF THE CIT (APPEALS) PRIMARILY BECAUSE OF VIOLATION OF PRO VISIONS OF RULE 46A OF THE INCOME TAX RULES. 8. SHRI TEJ MOHAN SINGH APPEARED ON BEHALF OF THE A SSESSEE AND SHRI AKHILESH GUPTA PUT IN APPEARANCE ON BEHALF OF THE R EVENUE AND PUT- FORWARD THEIR CONTENTIONS. WHEN CONFRONTED THE LEA RNED A.R. FOR THE ASSESSEE FAIRLY ADMITTED THAT THE REPLIES WERE GIVE N BEFORE THE ASSESSING OFFICER AND FURTHER ALSO BEFORE THE CIT (APPEALS) B UT THERE WAS SOME MISTAKE/ERROR ON THE PART OF THE EARLIER COUNSEL FO R THE ASSESSEE. THE LEARNED A.R. FOR THE ASSESSEE FAIRLY CONCEDED THAT THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER FOR PROPER ADJUDICATI ON OF THE ISSUES RAISED IN THE PRESENT APPEAL AS THE EXPLANATION FILED BY T HE ASSESSEE HAS NOT BEEN CONSIDERED IN PROPER PERSPECTIVE BY THE AUTHOR ITIES BELOW. 9. FROM THE PERUSAL OF THE RECORD AND THE ORDERS OF THE AUTHORITIES BELOW WE FIND THAT THOUGH THE ASSESSEE HAD FURNISHE D VARIOUS EXPLANATIONS BEFORE THE ASSESSING OFFICER AND THE C IT (APPEALS), THE SAME HAVE NOT BEEN CONSIDERED IN THE PROPER PERSPEC TIVE. THE GRIEVANCE OF THE REVENUE IS THAT EVEN THE CIT (APPEALS) HAS A CCEPTED THE CONTENTION OF THE ASSESSEE IN VIOLATION OF THE PROV ISIONS OF RULE 46A OF THE INCOME TAX RULES. THE PLEA OF THE ASSESSEE IN THIS REGARD IS THAT THE APPELLATE PROCEEDINGS WERE CONDUCTED IN THE PRESENC E OF BOTH THE ACIT AND ADDL.CIT AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND NO FRESH EVIDENCE WAS FURNISHED BEFORE THE CIT (APP EALS). HOWEVER, THE 5 LEARNED A.R. FOR THE ASSESSEE FAIRLY CONCEDED THAT THERE WAS SOME MIS- REPRESENTATION BY THE EARLIER COUNSEL BEFORE THE AS SESSING OFFICER. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSIN G OFFICER TO DECIDE ALL THE ISSUES DE-NOVO AFTER AFFORDING REASONABLE OPPOR TUNITY OF HEARING TO THE ASSESSEE. 10. BOTH THE APPEALS FILED BY THE REVENUE AND THE A SSESSEE ARE DECIDED ON THIS PRELIMINARY ISSUE AND WE ARE NOT ADJUDICATI NG UPON THE MERITS OF THE ADDITIONS/DELETIONS MADE BY THE CIT (APPEALS). THUS GROUNDS OF APPEALS RAISED BY BOTH THE REVENUE AND THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE VENUE AND THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DAY OF JUNE, 2012. SD/ - SD/- (T.R. SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26 TH JUNE, 2012 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH