Mr. Swaran Singh, Chandigarh V. ACIT, C-5(1), Chandigarh

ITA 1504/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9912 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARJINDER SINGH CIT
• Assessee Lawyers: DEEPIKA OFFICE EMPLOYEE
• Section: 133(6); 250; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ITA NO. 1504/CHD/2018 ASSESSMENT YEAR : 2009-10 SHRI SWARAN SINGH, HOUSE NO. 137, SECTOR 11A, CHANDIGARH. VS THE ACIT, CIRCLE 5(1), CHANDIGARH. PAN NO: ATDPS9020Q APPELLANT RESPONDENT !' ASSESSEE BY : MS. DEEPIKA (OFFICE EMPLOYEE) #!' REVENUE BY : SHRI HARJINDER SINGH, CIT $ %! & DATE OF HEARING : 21.05.2019 '()*! & D ATE OF PRONOUNCEMENT : 30.05.2019 $%/ ORDER BY THE PRESENT APPEAL, THE CORRECTNESS OF THE ORDE R DATED 25.09.2018 OF CIT(A)-2, CHANDIGARH PERTAINING TO 2009-10 ASSES SMENT YEAR IS ASSAILED ON THE FOLLOWING GROUNDS : 2. THAT THE LD. CIT(A)-2 CHANDIGARH WAS NOT JUSTIF IED TO DISMISS THE GROUND OF APPEAL FILED BY THE APPELLANT REGARDING ADDITION OF RS. 25 LAKHS ON ACCOUNT OF CASH DEPOSITS. THAT THE ADDITION MADE WAS HIGHLY U NJUSTIFIED AND AGAINST LAW AND FACTS. 3. THAT THE APPELLANT RESERVES THE RIGHT TO RAISE ANY ADDITIONAL GROUND OF APPEAL DURING APPELLATE PROCEEDINGS. 2. HOWEVER, AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATION WAS MOVED ON BEHALF OF THE ASSESSEE. AN OFFICE EMPLOYEE PRESENT IN SUPPORT OF THE ASSESSEE WAS UNABLE TO STATE AS TO WHY THE ASSE SSEE FAILED TO PARTICIPATE BEFORE THE CIT(A) AS AN EX-PARTE ORDER HAS BEEN PAS SED BY THE SAID AUTHORITY. A PERUSAL OF THE RECORD SHOWS THAT THE A SSESSEE IN THE FACTS OF THE PRESENT CASE IS STATED TO BE AN AGRICULTURIST AND A PROPERTY DEALER. ON THE BASIS OF AIR INFORMATION, THE AO REQUIRED THE ASSES SEE TO EXPLAIN THE DEPOSIT ITA 1504/CHD/2018 A.Y. 2009-10 PAGE 2 OF 3 FOUND IN HIS SPECIFIC BANK ACCOUNT AMOUNTING TO RS. 39 LACS. IN THE ABSENCE OF A PROPER EXPLANATION THE AO PROCEEDED TO MAKE AD DITION OF AN AMOUNT OF RS. 25 LACS. 3. BEFORE THE CIT(A), THE ASSESSEE IS SHOWN TO HAVE RAISED THE FOLLOWING ARGUMENTATIVE GROUNDS : 1. THAT THE ORDER OF THE LD. AO IS BAD IN LAW AND THE FACTS OF THE CASE, HENCE, IS HIGHLY UNJUSTIFIED, UNREASONABLE AND UNCALLED FOR. 2. THAT THE LD. AO HAS ERRED ON ADDING A SUM OF RS. 25 LACS TO THE INCOME OF THE APPELLANT AS THE COMPLETE SOURCE OF DEPOSIT OF THE CASH DEPOSITS WERE EXPLAINED. IT WAS CLEARLY MENTIONED THAT THE CASH DEPOSITS IN THE BAN K ACCOUNT WAS FROM THE EARLIER BANK WITHDRAWALS FORM THE SAME ACCOUNT. THE APPELLA NT IS IN THE TRADE OF BUSINESS OF PROPERTY DEALING ANS THE SOURCE OF MONEY WAS THE AM OUNT RECEIVED FROM A FIRM M/S HI-TECH FORCE TO THE TUNE OF RS. 39 LACS FOR THE PU RCHASE OF LAND IN VILLAGE KAIMBWALA. THIS AMOUNT WAS DULY CONFIRMED BY THE PARTNER OF TH E FIRM MR. KAMAL SHARMA, WHO AGAINST NOTICE U/S 133(6) ISSUED BY THE LD. AO REPL IED THAT. THAT THE AMOUNT WAS PAID TO HIM TO ARRANGE THE PURCHASE OF PROPERTY OF THE F IRM FOR GODOWN PURPOSES IN VILLAGE KAIMBWALA, CHANDIGARH. HOWEVER, HE COULD NOT PROCUR E THE LAND FOR THE FIRM AND THE AGREEMENT BETWEEN US FIZZLED OUT, HENCE , THE TOTAL AMOUNT OF RS. 39 LACS GIVEN TO HIM AS ADVANCE/EARNEST MONEY WAS RETURNED BACK TO US. T HE FACT IN THIS CASE IS THAT THE AMOUNT WAS RECEIVED FROM M/S HI TECH FORCE FOR PURC HASE OF LAND ON THEIR BEHALF AND THE SAME WAS WITHDRAWN FROM THE BANK ACCOUNT FOR PA YMENT TO AGRICULTURIST VILLAGERS, WHO IN TURN DID NOT AGREE TO THE TERMS OF THE M/S H I-TECH FORCE, HENCE , THE AGREEMENT COULD NOT BE FINALIZED AND THE SAME AMOUNT WAS RE-D EPOSITED IN THE SAME BANK ACCOUNT AND REPAID BACK TO M/S HITECH FORCE. IT IS PERTINENT TO MENTION HERE THAT THE ENTIRE AMOUNT WAS RECEIVED AND REPAID FROM/TO M/S H I-TECH FORCE THROUGH BANK TRANSFER ONLY. IT IS FURTHER EXPLAINED THAT THE APPELLANT HAS SUFF ICIENT CASH IN HAND AVAILABLE WITH HIM OF THE DEPOSITS IN THE BANK ACCOUNT OUT OF EARLIER WITHDRAWALS FROM THE SAME BANK ACCOUNT AND WHICH WAS NOT INVESTED ANYWHERE ELSE, H ENCE, THE SOURCE OF DEPOSIT IS CLEARLY PROVEN TO COMPLY WITH THE INFORMATION PROVI DED FORM AIR AND IT HAS NOTHING TO DO WITH THE AMOUNT RECEIVED FORM M/S HI-TECH FORCE. EVEN THEN THE CONFIRMATION FORM M/S HI-TECH FORCE WAS OBTAINED BY THE LD. AO AT HER OWN LEVEL AND CONFIRMATION TO THE SAME WAS SUBMITTED BY M/S HI-TECH FORCE. SO THE PURPOSE OF GENUINENESS OF THE SOURCE OF MONEY WAS TOTALLY EXPLAINED AS WELL AS CO NFIRMED BY M/S HI-TECH FORCE, WHO IS A SEPARATE INCOME TAX ASSESSEE. THEREFORE THE CR EDITWORTHINESS OF THE APPELLANT IS ITSELF PROVED BY THE CONFIRMATION FORM M/S HI-TECH FORCE AND PROVISIONS OF SECTION 68 DOES NOT APPLY IN THIS CASE. 4. A PERUSAL OF THE ORDER SHOWS THAT IN THE ABSENCE OF ANY REPRESENTATION, THE CIT(A) RELYING UPON THE DECISIO N OF THE APEX COURT IN THE CASE OF CIT VS B.N. BHATTACHARYA 118 ITR 461, DR. P . NALLA THAMPY VS. SHANKAR (1984 (SUPP) SCC 63 AND THE CASE OF NEW INDIA ASSURANCE VS. SRINIVASAN (2000) 3 SCC 242 DISMISSED THE APPEAL TH EREBY CONFIRMING THE ADDITIONS MADE. 5. CONSIDERING THE FACT THAT THE GRIEVANCE OF THE A SSESSEE STILL REMAINS, ACCORDINGLY, IN THE INTEREST OF SUBSTANTIAL JUSTICE , THE ISSUE IS REMANDED TO ITA 1504/CHD/2018 A.Y. 2009-10 PAGE 3 OF 3 THE CIT(A) SO AS TO ENABLE THE ASSESSEE AN OPPORTUN ITY OF BEING HEARD. THE CONCLUSION DRAWN IS FURTHER FORTIFIED ON FACTS AS T HE ORDER PASSED IS NOT IN ACCORDANCE WITH SUB-SECTION (6) OF SECTION 250 OF T HE INCOME TAX ACT AND THUS EVEN OTHERWISE CANNOT BE UPHELD. THE STATUTE REQUIRES THAT THE CIT(A) SHALL STATE THE POINTS FOR DETERMINATION, THE DECIS ION THEREON AND THE REASON FOR THE DECISION. ACCORDINGLY, IN VIEW OF THESE REASONS, THE APPLIC ATION MOVED ON BEHALF OF THE ASSESSEE WAS REJECTED WITH THE FOL LOWING COMMENTS; REJECTED AS PER ORDER SHEET. RESTORED TO CIT(A). S PEAKING ORDER TO FOLLOW. WHILE SO DIRECTING, IT IS HOPED THAT THE ASSESSEE U TILIZES THE OPPORTUNITY SO MADE AVAILABLE BY PARTICIPATING FULLY AND FAIRLY. IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOSED, THE CIT( A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF THE MATERIAL AVAILABL E ON RECORD IN TERMS OF STATUTORY REQUIREMENTS OF SUB-SECTION (6) OF SECTIO N 250 OF INCOME TAX ACT. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.05.2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT - 2. THE RESPONDENT - 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR