Mayuresh Mukund Joshi, Pune V. DCIT, Pune

ITA 1455/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72346 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 03-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Keywords: Unexplained cash credit; Business income; Principle of natural justice
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1455 /PN/201 2 ASSESSMENT YEAR : 2008 - 09 MAYURESH MUKUND JOSHI, PLOT NO. 1 6, SJAS, 2 ND FLOOR, SAHWAS SOCIETY, KARVE NAGAR, PUNE VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE - 3, PUNE (APPELLANT) (RESPONDENT) PAN NO. AAPPJ8993C APPELLANT BY: SHRI SHARAD SHAH RESPONDENT BY: SHRI P.L. PATHADE DATE OF HEARING : 28 - 10 - 2013 DATE OF PRONOUNCEMENT : 30 - 10 - 2013 ORDER P ER R.S. PADVEKAR , JM : - IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER OF THE LD. CIT(A) - II, PUNE DATED 30 - 03 - 2012 FOR THE A.Y. 2008 - 09. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUN DS: 1. THE ASSESSMENT ORDER IS PASSED WITHOUT GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE AND THUS IT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, THE ASSESSMENT ORDER BE DECLARED NULL AND VOID. 2. LEARNED CIT(A) FAILED TO GIVE ANY FINDING ON GROUND NO. 3 OF APPEAL BEFORE HIM AND THEREFORE, THE APPEAL ORDER MAY PLEASE BE DECLARED NULL AND VOID. THE SAID GROUND READS AS UNDER: 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED DCIT HAS NOT CONSIDERED THE DETAILS SUBMITTED BY TH E APPELLANT, AND WITHOUT GIVING FURTHER OPPORTUNITY HAS ERRED IN MAKING ADDITION TREATING THE RECEIPTS AS UNEXPLAINED CASH CREDITS UNDER SECTION 68. HE OUGHT NOT TO HAVE DONE SO. ' 2 ITA NO. 1455/PN/2012, MAYURESH MUKUND JOSHI, PUNE 3. THE LEARNED A.O. HAS ERRED (AND THE LEARNED CIT (A) ERRED IN UPHOLDING) IN MAKING ADDITION OF THE AMOUNT OF RS. 34,45,267/ - UNDER SECTION 68 OF THE ACT. . 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED DCIT HAS NOT CONSIDERED THE DETAILS SUBMITTED BY THE APPELLANT, AND WITHOUT GIVING FURTHER OPPORTUNIT Y HAS ERRED IN MAKING ADDITION TREATING THE RECEIPTS AS UNEXPLAINED CASH CREDITS UNDER SECTION 68, HE OUGHT NOT TO HAVE DONE SO. ' 4. THE CONCLUSIONS OF LEARNED CIT(A) ARE NOT DRAWN FROM ANY FURTHER INQUIRY AND ARE MERE SURMISES AND ARE WITHOUT ANY BASIS AND THEREFORE, THE ORDER OF CIT(A) BE DECLARED NULL AND VOID' 2. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THE ASSESSEE IS AN INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS ACTIVITY OF PROMOTERS, BUILDERS AND DEVELOPERS. THE ASSESSEE HAS FILED TH E RETURN OF INCOME FOR THE A.Y. 2008 - 09 ON 30 - 09 - 2008 DECLARING TOTAL INCOME OF RS.36.07,690/ - . THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT HAS BEEN COMPLETED U/S. 143(3) OF THE INCOME - TAX ACT VIDE ASSESSMENT ORDER DATED 31 - 12 - 2010 . IN T HIS CASE, THE NOTICE U/S. 143(2) DATED 24 - 08 - 2009 WAS ISSUED AND ALSO SERVED ON THE ASSESSEE. AS NOTED BY THE ASSESSING OFFICER FURTHER NOTICE U/S. 143(2) WAS ALSO ISSUED ON 28 - 09 - 2010 AS PER THE PROVISIONS OF SEC. 129 OF THE I.T. ACT. 3. SO FAR AS GRO UND NO. 1 OF THE ASSESSEE IS CONCERNED, PARA NO. 3 OF THE ASSESSMENT ORDER IS RELEVANT WHICH IS AS UNDER: DURING THE COURSE OF SCRUTINY PROCEEDINGS THE A.R. OF THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS CALLED FOR AS PER ORDER SHEET NOTING DATED 30 - 12 - 2 010. IN RESPONSE, THE A.R. SUBMITTED THE DETAILS CALLED FOR VIDE HIS SUBMISSIONS MADE ON 31 - 12 - 2010. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS DECLARED NET PROFIT/GROSS PROFIT AT RS.13,00,599/ - (6.15%)/20,74,735/ - (9.81%) ON TURNOVER AT RS.2. 11 CRORES. APART FROM BUSINESS INCOME, THE ASSESSEE HAS OFFERED AN AMOUNT OF RS.10,00,000/ - AS INCOME UNDER THE HEAD SALARIES . 3 ITA NO. 1455/PN/2012, MAYURESH MUKUND JOSHI, PUNE 4. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY MAKING THE ADDITION OF RS.34,45,267/ - U/S. 68 OF THE ACT. THE ASSESSEE CA RRIED THE ISSUE BEFORE THE LD. CIT(A) BY RAISING THE GRIEVANCE THAT THE ASSESSEE HAS NO OPPORTUNITY TO REPRESENT THE CASE TO MEET THE QUERIES OF THE ASSESSING OFFICER AS ON 30 - 12 - 2010 T HE ASSESSING OFFICER ASKED THE ASSESSEE TO FILE THE REQUI RE DETAILS AND INFORMATION AND ON 31 - 12 - 2010 THE ASSESSMENT HAS BEEN FINALIZED. THE LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE THAT THERE WAS NO REASONABLE OPPORTUNITY TO THE ASSESSEE. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE LEARNED COUNSEL TOOK US THROUGH THE ASSESSMENT ORDER MORE PARTICULARLY PARA NO. 3 AND SUBMITS THAT HOW THE ASSESSEE C OULD FURNISH THE INFORMATION IN RESPECT OF THE PARTIES BY GIVING ONE DAY TIME BEFOR E COMPLETION OF THE ASSESSMENT ORDER. HE SUBMITS THAT THERE IS A GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AT THE END OF THE ASSESSING OFFICER WHICH HAS NOT BEEN APPRECIATED AND LOOKS INTO BY THE FIRST APPELLATE AUTHORITY. HE PLEADED FOR RESTO RING THE ENTIRE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR GIVING AN OPPORTUNITY TO THE ASSESSEE AS PER THE PRINCIPLES OF NATURAL JUSTICE. WE HAVE ALSO HEARD THE LD. DR. 6 . WE FIND AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FROM PARA NO. 3 OF TH E ASSESSMENT ORDER , IT IS CLEAR THAT ON 30 - 12 - 2010 THE ASSESSING OFFICER ASKED THE ASSESSEE TO FILE THE DETAILS WHICH ARE NOT SPECIFIED IN THE ASSESSMENT ORDER I.E. THE NATURE OF DETA ILS. IN RESPONSE TO THE ASSESSING OFFICERS REQUIREMENT , THE ASSESSEE MA DE HIS SUBMISSION ON 31 - 12 - 2010 AND ASSESSMENT ORDER HAS BEEN PASSED ON THE SAME DATE . THE ASSESSEE HAS BEEN ISSUED A NOTICE U/S. 143( 2 ) MUCH EARLIER BUT ASSESSMENT ORDER DOES NOT SUGGEST THAT THE INFORMATION CALLED BY THE ASSESSING OFFICER ON 30 - 12 - 2010 WAS ALSO CALLED PRIOR TO THE SAID DATE FROM THE ASSESSEE. IN OUR OPINION, THE ASSESSING OFFICER H AS 4 ITA NO. 1455/PN/2012, MAYURESH MUKUND JOSHI, PUNE COMPLETED THE ASSESSMENT WITH UNDUE HASTE AND IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE WITHOUT GIVING SUFFICIENT TIME TO MEET WITH QUERIES. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ENTIRE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO GIVE THE OPPORTUNITY TO THE ASSESSEE TO ESTABLISH HIS CASE AND TO DECIDE THE ISSUE OF THE ADDITION U/S. 68 DE NOVO. WE A RE NOT EXPRESS ANYTHING ON MERIT BUT OUR CONCERN IS ON THE POINT THE WAY THE ASSESSMENT HAS BEEN COMPLETED. 7 . IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 30 - 10 - 2013 SD/ - SD/ - ( G .S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 30 TH OCTOBER, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - II, PUNE 4 THE CIT - II, PUNE 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE