SHRI ISHAQ KHAN, JAIPUR V. INCOME TAX OFFICER, WARD-4-5, JAIPUR

ITA 1470/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7889 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 21-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT LD DR DHK
• Assessee Lawyers: MAHENDRA GARGIEYA LD
• Keywords: Unexplained expenditure; Earning of tax free income; Reasonable cause
• Section: 54

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S SMC, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM VK;DJ VIHY LA-@ ITA NO. 1470/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2011-12 ISAQ KHAN C/O MAHENDRA GARGIEYA & ASSOCIATES, ADVOCATES & TAX CONSULTANTS, 537-539,5 TH FLOOR, MAHIMAS TRINITY, NEAR JYOTI RAO PHULE COLLEGE, NEW SANGANER ROAD, JAIPUR V S. I.T.O. WARD - 4(5), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANOPK8648F VIHYKFKHZ@ A PP ELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA, ADVOCATE, LD.AR JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA, JCIT, LD.DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/04/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 23/04/2019 VKNS'K@ ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E EX PARTE ORDER OF LD.CIT(A)-2, UDAIPUR DATED 19/09/2018 FOR THE A. Y. 2011-12 IN THE MATTER OF AN ORDER PASSED U/S 144/147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD P ERUSED. IN THIS CASE BY PASSING ORDER U/S. 144/147 OF THE ACT THE AO HAD MA DE ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE OF RS. 13,81,000/- IN T HE NEW RESIDENTIAL HOUSE AND DECLINED DEDUCTION OF RS.24,90,150/- U/S. 54F. THE AO ALSO MADE ADDITION OF RS.3,00,000/- IN RESPECT OF AMOUNT DEP OSITED IN THE BANK. THE ITA NO. 1470/JP/18 SHRI ISHAQ KHAN 2 AO DID NOT ACCEPT THE ASSESSEES AGRICULTURAL INCOM E OF RS. 12,85,628/-. BY THE IMPUGNED EX PARTE ORDER THE LD. CIT(A) HAS CONF IRMED THIS ACTION OF THE AO. 3. IN SUPPORT OF THE CONTENTION OF REASONABLE CAUSE FOR NON APPEARANCE BEFORE THE LD. CIT(A), THE LD. AR ALSO F ILED AN AFFIDAVIT, WHICH READS AS UNDER: I, MOHAMMED ISHAQ KHAN S/O SHRI MUNEER KHAN AGED 6 7 YEARS, R/O 551, NEW JALUPURA, SHASTRI NAGAR, JAIPUR (RAJASTHAN ) DO HEREBY SOLEMNLY AFFIRM ON OATH, AS UNDER: 1. THAT I AM I.T ASSESSEE HAVING PAN AONPK8648F AND I S FULLY AWARE WITH THE FACTS OF THE PRESENT CASE. 2. THAT LD. CIT(A)-II, UDAIPUR, HAD DECIDED AN APPEAL EX-PARTE VIDE ITS ORDER DATED 19.09.2018 IN APPEAL NO. 10149/2017-18. 3. THAT WITH A VIEW TO PREPARE AND ARGUE THE APPEAL BE FORE THE LD. CIT(APPEALS), I HAD ENGAGED ONE SHRI G.M. KHAN ADV . AND SHRI PRASHANT SHARMA, CA OF JAIPUR, WHO PREPARED THE APP EAL AND ALSO FILED THE SAME. 4. THAT ALTHOUGH ON A FEW OCCASIONS, THEY APPEARED BEF ORE THE LD. CIT(A), JAIPUR HOWEVER NO COMPLIANCE WAS MADE ON 2 3.07.2018 AND 12.09.2018 AS APPEARS FROM THE ORDER OF THE LD. CIT (A)-II, UDAIPUR. 5. THAT THE UNDERSIGNED DEPONENT HAVING ENGAGED THE CO UNSELS, REMAINED UNDER BONAFIDE IMPRESSION THAT THE COUNSEL S MUST BE TAKING CARE OF THIS APPEAL AND WAS NOT AWARE OF THE FACT O F NON-COMPLIANCE BEFORE THE LD. CIT(A)-II, UDAIPUR. 6. THAT BEING COMPLETELY UNAWARE OF THE DEVELOPMENT, T HE DEPONENT CAME TO KNOW OF THE FACT OF PASSING OF THE IMPUGNED ORDER ON DATED 19.09.2018 ONLY LATER ON AND OF THE FACT THAT THE LD. COUNSELS DID NOT MAKE APPEARANCE ON THE LAST TWO OCCASIONS, RESULTIN G INTO EX-PARTE APPELLATE ORDER. 7. THAT THE UNDERSIGNED WAS INTERESTED IN PROSECUTING THE MATTER, HAS MADE THE PAYMENT OF THE PROFESSION FEES, PAID THE F ILING FEES AND THE NON-APPEARANCE WAS BEYOND THE CONTROL OF THE DEPONE NT WHO HAD EXERCISED DUE DILIGENCE BY APPOINTING THE COUNSELS. NOW IT WAS ON THE PART OF THE COUNSELS TO MAKE COMPLIANCE. ITA NO. 1470/JP/18 SHRI ISHAQ KHAN 3 8. THAT AFTER THE NON-APPEARANCE BY THE COUNSELS ON TW O OCCASIONS, THE OFFICE OF THE LD. CIT(A) DID NOT SEND ANY NOTIC E GIVING FINAL OPPORTUNITY NOR ANY OTHER COMMUNICATION WAS MADE TO THE DEPONENT AND OF THE FACT OF NON-APPEARANCE. 4. I HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW AS WELL AS THE SAID AFFIDAVIT AS FILED BY THE ASSESSEE BEFORE ME. IN THE SAID AFFIDAVIT, THE ASSESSEE HAS EXPLAINED THE REASONS FOR NON APPE ARANCE BEFORE THE LD. CIT(A). HOWEVER, RESTORING THE MATTER BACK TO LD. C IT(A) WILL NOT SERVE THE END OF JUSTICE IN SO FAR AS THE DISALLOWANCES H AVE BEEN MADE BY THE AO BY PASSING AN ORDER U/S.144 AFTER RE-OPENING OF ASSESSMENT U/S. 147. IN THE SUBSTANTIAL INTEREST OF JUSTICE, I RESTORE T HE MATTER BACK TO THE FILE OF THE AO FOR DECIDING THE MATTER AFRESH. THE ASSES SEE IS ALSO DIRECTED TO APPEAR BEFORE THE AO AND TO PRODUCE ALL THE DOCUMEN TS IN SUPPORT OF CLAIM U/S. 54 OF THE ACT. THE ASSESSEE IS FURTHER D IRECTED TO PRODUCE THE EVIDENCES OF INVESTMENT OF RS.13,81,000/- MADE IN THE NEW RESIDENTIAL PROPERTY AND SOURCE OF AMOUNT OF DEPOSITED IN THE B ANK ACCOUNT. NATURE OF AGRICULTURAL INCOME SHOWN BY THE ASSESSEE ALSO R EQUIRE DOCUMENTARY EVIDENCE(S) SO AS TO REACH AT THE CONCLUSION THAT I NCOME SO OFFERED IS ACTUALLY AGRICULTURAL INCOME NOT LIABLE TO TAX. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE AO WITHIN 60 DAYS FROM RECEIPT OF THIS TRIBUNAL ORDER. IN CASE OF FAILURE OF ASSESSEE, THE AO IS AT LIBERTY T O PASS ORDER AFRESH AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD/ON MER ITS. ITA NO. 1470/JP/18 SHRI ISHAQ KHAN 4 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON .23 RD .APRIL, 2019. SD/- JES'K LH 'KEKZ (RAMESH C SHARMA) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23 APRIL, 2019 *PP, SPS VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- ISAQ KHAN, C/O MAHENDRA GARGIEYA & ASSOCIATES, ADVOCATES & TAX CONSULTANTS, 537-539,5 TH FLOOR, MAHIMAS TRINITY, NEAR JYOTI RAO PHULE COLLEGE, NEW SANGANER ROAD, JAIPUR 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O. WARD 4(5), JAIPUR 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1470/JP/18) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR