Shri Sanjeev Kumar, Faridkot V. DCIT, CC-2, Ludhiana

ITA 1536/CHANDI/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1674 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-06-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 03-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDEEP DAHIYA CIT
• Keywords: Search and seizure; Opportunity of being heard; Set aside
• Section: 133A; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH (VIRTUAL COURT) .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO. 1536/CHD/2019 ASSESSMENT YEARS : 2011-12 SHRI SANJEEV KUMAR S/O SH. BRIJ LAL, DOGAR BASTI STREET NO. 11, FARIDKOT THE DY. CIT CENTRAL CIRCL-2, LUDHIANA PAN NO: AJOPS9346N APPELLANT RESPONDENT !' ASSESSEE BY : SHRI SUDHIR SEHGAL, ADVOCATE #!' REVENUE BY : SHRI SANDEEP DAHIYA, CIT $ %! & DATE OF HEARING : 28/06/2021 '()*! & DATE OF PRONOUNCEMENT : 29/06/2021 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT . 27/09/2019 OF LD. CIT(A), BATHINDA. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL : 1. THAT THE LD. CIT(A) HAS ERRED IN GIVING PART REL IEF OUT OF THE ADDITION OF RS. 17 LACS AS MADE BY THE ASSESSING OFFICER. 2. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT ALL THE DOCUMENTARY EVIDENCES REGARDING THE SOURCE OF RS. 17 LACS WERE GIVEN AND PART EXPLANATION WHICH HAS NOT BEEN ACCEPTED IS ON SURMISES AND CONJ ECTURES. 3. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THA T THE SOURCE OF SOURCE CANNOT BE QUESTIONED AS PER BINDING JUDGMENT OF HON'BLE SU PREME COURT IN THE CASE OF SHRI CHUNI LAL AS REPORTED IN 211 ITR 11 (STATUTE) 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE SUSTENANCE OF ADDITION OF RS. 17,00,000/-. 2 3. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS ACT) WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE ASSESS EE ON 21/10/2010, SIMULTANEOUSLY SEARCH OPERATION UNDER SECTION 132 OF THE ACT & SURVE Y OPERATION UNDER SECTION 133A OF THE ACT WERE ALSO CONDUCTED AT SEVERAL RESIDENTIAL, B USINESS AND OFFICE PREMISES OF THE ASSESSEE, HIS CLOSE RELATIVES AND BUSINESS ASSOCIATES. BEFORE THE A.O, THE ASSESSEE FILED A COPY OF THE RETURN OF INCOME FURNISHED ON 31/03/201 2 DECLARING AN INCOME OF RS. 2,57,620/-. 3.1 THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDING S OBSERVED THAT DURING THE COURSE OF SEARCH OPERATION AT THE RESIDENTIAL PREMISES OF UNCLE OF THE ASSESSEE, PHOTOCOPIES OF THE FOLLOWING BANK DRAFTS BELONGING TO THE ASSESSEE FAMILY WERE FOUND: S.NO. NAME(SH./MS) A/C NO./BANK AMOUNT(RS.) DATE OF PURCHASE 1. SANJEEV KUMAR S/O BRIJ LAL 14142560000598/HDFC FARIDKOT 5,00,000/- 22.07.2010 2. -DO- -DO- 5,00,000/- 23.07.2010 3. ARPANA W/O SANJEEV KUMAR 14142560000623/- HDFC FARIDKOT 5,00,000/- 24.07.2010 4 -DO -DO- 2,00,000/- 28.07.2010 TOTAL 17,00,000/- 3.2 THE A.O. ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF RS. 17,00,000/-AS INVESTED TOWARDS PURCHASE OF ABOVE DRAFTS. THE A.O. MADE THE AD DITION OF THE AFORESAID AMOUNT BY OBSERVING THAT THE ASSESSEE FAILED TO OFFER A NY PLAUSIBLE EXPLANATION AS TO THE SOURCE OF INVESTMENT TOWARDS THE PURCHASE OF DRAFT . 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE AFORESAID DRAFTS WERE PURCHASED FROM HIS ACCOU NT WITH HDFC BANK LIMITED AS WELL AS FROM THE ACCOUNT OF SMT. ARPANA GARG W/O THE AS SESSEE. 4.1 IT WAS FURTHER STATED THAT THESE DRAFTS WERE DEPOS ITED WITH THE CONCERNED DEPARTMENT OF GOVERNMENT OF PUNJAB FOR PARTICIPATING IN THE AUCTION OF SAND MINES 3 AND AS THE ASSESSEE COULD NOT SUCCEED IN THE AUCTION BID S THE DRAFTS WERE CANCELLED AND THE AMOUNT WAS CREDITED IN THE BANK ACCOUNT. THEREFORE THE INVESTMENT IN PURCHASE OF DRAFTS STOOD EXPLAINED. THE ASSESSEE FURNI SHED THE COPY OF BANK STATEMENT FROM WHERE THE DRAFTS WERE PURCHASED AND THE CASH ACCOUNT FOR THE F.Y. 2010-11. THE ASSESSEE ALSO FURNISHED CASH ACCOUNT FOR RELEVANT TRANS ACTIONS AND COPY OF ACCOUNTS WITH M/S RAJINDER KUMAR & CO. IN WHICH SMT. ARPANA WAS THE PARTNER AND HAD WITHDRAWN THE MONEY. THE ASSESSE ALSO FURNISHED THE BALANC E SHEET AS ON 31/03/2010 FOR CONFIRMATION OF THE OPENING BALANCE OF RS. 6,88,226/ - AS ON 01/04/2010. 4.2 THE LD. CIT(A) FORWARDED THE DOCUMENTS TO THE A.O. FOR HIS COMMENTS. IN RESPONSE THE A.O. REPORTED THAT THE ASSESSEE HAD NOT SUBM ITTED COPY OF CASH BOOK FOR THE F.Y. 2010-11 WHICH COULD SHOW THAT ALL THE AMOUNT WAS USED FOR MAKING THE DRAFT OF RS. 10,00,000/- AND THAT THE ASSESSEE HAD ALSO NOT GIVE N THE COPY OF THE BANK ACCOUNT THROUGH WHICH DRAFTS WERE MADE. THE A.O. ALSO OBSERVED T HAT THE ASSESSEE ONLY FURNISHED THE COPY OF TRIAL BALANCE AS ON 31/03/2010 OF M/S RAJINDER KUMAR & CO. THROUGH WHICH WITHDRAWAL WERE MADE BY SMT. ARPANA. THE R EMAND REPORT OBTAINED FROM THE A.O. WAS FORWARDED TO THE ASSESSEE THROUGH EMA IL. ACCORDING TO THE LD. CIT(A), TILL DATE, NO REJOINDER HAS BEEN RECEIVED THERE FROM. THE LD. CIT(A) SUSTAINED THE ADDITION MADE BY THE A.O. 5. NOW THE ASSESSEE IS IN APPEAL. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NEITHER T HE A.O. NOR THE LD. CIT(A) APPRECIATED THE DOCUMENTARY EVIDENCE FURNISHED BY THE A SSESSEE REGARDING THE SOURCE OF RS. 17,00,000/- IN RIGHT PERSPECTIVE AND EVE N PROPER TIME WAS NOT GIVEN TO REBUT THE CONTENTS OF THE REMAND REPORT OF THE A.O. IT W AS REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE A.O. TO GIVE PROPER OPPORTUNI TY TO EXPLAIN THE CASE RELATING TO THE MAKING OF DRAFTS AMOUNTING TO RS. 17,00,000/-. 7. IN HIS RIVAL SUBMISSIONS THE LD. CIT DR STRONGLY SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSE E FAILED TO EXPLAIN HIS CASE EVEN WHEN THE AMPLE OPPORTUNITIES WERE GIVEN BY THE A.O. AND THA T NO REJOINDER HAD BEEN FURNISHED BY THE ASSESSEE ON THE REMAND REPORT OF THE A.O. THEREFORE THE LD.CIT(A) RIGHTLY SUSTAINED THE ADDITION MADE BY THE A.O. 4 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PR ESENT CASE THE LD. CIT(A) HIMSELF ADMITTED AT PAGE NO. 6 OF THE IMPUGNED ORDER THAT THE R EMAND REPORT WAS FORWARDED TO THE ASSESSEE THROUGH EMAIL ACCOUNT OF THE ASSESSEE BUT NO REJOINDER WAS RECEIVED. HOWEVER IT IS NOT CLEAR AS TO WHEN THE REMAND REPORT WA S FORWARDED TO THE ASSESSEE OR AS TO WHETHER THE SAME WAS RECEIVED BY THE ASSESSEE. I T IS ALSO NOT CLEAR WHEN THE SAID REMAND REPORT WAS FORWARDED AND AS TO WHETHER THE SUFF ICIENT TIME WAS GIVEN TO FURNISH THE EXPLANATION. WE THEREFORE DEEM IT APPROPRIATE TO S ET ASIDE THIS CASE BACK TO THE FILE OF THE A.O. TO BE ADJUDICATED AFRESH IN ACCORDANC E WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 29/06/2021) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 29/06/2021 (+! ,-.- 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