Jagjeet Singh, Ludhiana V. ITO, W-5(1), Ludhiana

ITA 1574/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9569 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-07-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 14-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 234B; 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NOS. 1574 TO 1577/CHD/2018 ASSESSMENT YEAR : 2008-09 TO 2011-12 SHRI JAGJEET SINGH, S/O SHRI TIRATH SINGH, HOUSE NO. 343-C, RAJGURU NAGAR, LUDHIANA. VS THE ITO, WARD 5(1), LUDHIANA. PAN /TAN NO: AFWPS4304Q APPELLANT RESPONDENT ! ASSESSEE BY : NONE ' ! REVENUE BY : SMT. CHANDER KANTA, SR.DR # $ % DATE OF HEARING : 02.07.2019 &'() % D ATE OF PRONOUNCEMENT : 03.07.2019 )-/ ORDER PER BENCH THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSE E ASSAILING THE CORRECTNESS OF THE SEPARATE ORDERS DATED 12.10.2018 OF CIT(A)-2, LUDHIANA PERTAINING TO 2008-09 TO 2011-12 ASSESSMENT YEARS. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE. THE APPEALS WERE PASSED OVER. IN THE SECOND ROUND ALSO, THE POSITION REMAINED THE SAME. 3. THE RECORD SHOWS THAT ON THE LAST DATE OF HEARIN G I.E. 20.05.2019 THE APPEAL WAS ADJOURNED ON THE WRITTEN REQUEST OF THE ASSESSEE. ACCORDINGLY, IN THE CIRCUMSTANCES TAKING NOTE OF THE FACT THAT T HERE WAS ADEQUATE NOTICE TO THE ASSESSEE, IT WAS DEEMED APPROPRIATE TO PROCE ED WITH THE PRESENT ITA 1574TO 1577/CHD/2018 A.Y. 2008-09 TO 2011-12 PAGE 2 OF 5 APPEAL EX-PARTE QUA THE ASSESSEE APPELLANT ON MERIT S AFTER HEARING THE LD. SR.DR. 4. THE RECORD SHOWS THAT THE ORIGINAL GROUNDS FILED BY THE ASSESSEE IN TERMS OF THE DEFECT POINTED OUT BY THE REGISTRY WER E REVISED AND THAT CONCISED GROUNDS HAVE BEEN RAISED BY THE ASSESSEE I N EACH OF THESE FOUR APPEALS. IT WAS STAND OF THE LD. SR.DR THAT APART FROM THE DIFFERENCE IN AMOUNTS MENTIONED IN GROUND NO. 2, THE ASSESSEE HAS RAISED IDENTICAL GROUNDS IN EACH OF THESE APPEALS. ACCORDINGLY, THE ARGUMENTS ADVANCED IN ITA 1574/CHD/2018 MAY BE APPLIED TO THE REMAINING T HREE APPEALS ALSO. IN VIEW THEREOF, WE REPRODUCE THE GROUNDS FROM ITA 1574/CHD/2018 WHICH READ AS UNDER : 1. THAT THE ASSESSMENT ORDER AS WELL AS THE ORDER OF L EARNED CIT(A), LUDHIANA, BOTH ARE AGAINST THE FACTS OF THE CASE AND ARE UNTENABLE UND ER THE LAW. 2. THAT NO REASONABLE OPPORTUNITY OF BEING HEARD WAS A LLOWED BY THE A.O. BEFORE PASSING THE ORDER. AS SUCH, THE ASSESSMENT ORDER IS BAD IN LAW AND IS LIABLE TO BE CANCELLED. AGAIN, THE WORTHY CIT(A) HAS GROSSLY ERRED IN CONFI RMING THE ADDITION OF RS.76,50,000/- (A.Y. 2008-09); [RS. 12,02,991/- (A.Y. 2009-10); RS . 40,49,223/- (A.Y. 2010-11); RS. 10,83,280/- (A.Y. 2011-12 RESPECTIVELY] MADE BY THE ASSESSING OFFICER. 3. THAT THE LD. CIT(A) FURTHER FAILED TO APPRECIATE TH AT ISSUANCE OF NOTICE 147/148 OF THE INCOME-TAX ACT, 1961, IS ILLEGAL, INVALID AND VOID AB-INITIO, AS IT DOES NOT FULFIL THE CONDITIONS AS LAID DOWN UNDER THE LAW. 4. THAT THERE WAS NO APPLICATION OF MIND WHILE ISSUING THE NOTICE UNDER SECTION 147/148 OF THE INCOME TAX ACT, 1961 AND THE INITIATION OF P ROCEEDINGS IS BAD IN THE EYES OF LAW AND AS SUCH THE ASSESSMENT COMPLETED U/S 143(3)/147 /148 MAY BE ANNULLED. 5. THAT THE AUTHORITIES BELOW DID NOT APPRECIATE THAT THE CASH DEPOSITS IN BOTH THE ACCOUNTS IN THE BANK WERE PERTAINING TO CUSTOMERS AND NOT TO THE ASSESSEE. THE DEPARTMENT HAS NOT BEEN ABLE TO PROVE THAT THESE AMOUNTS BELONG TO THE ASSESSEE. AS SUCH THE ADDITION MADE IS PURELY BASED ON CONJECTURES, SURMISES AND S UPPOSITIONS. 6. THAT THE AUTHORITIES BELOW DID NOT APPRECIATE THAT THE ASSESSEE WAS AN EMPLOYEE WITH BANK AND DID NOT HAVE ANY CONNECTION WITH THESE DEP OSITS. AS SUCH THE ADDITION MADE IS UNJUSTIFIED, UNCALLED FOR AND THE SAME MAY BE DELET ED. 7. THAT THIS CASE DOES NOT FALL WITHIN THE MISCHIEF OF SECTION 69A OF THE IT ACT, 1961. AS SUCH THE ADDITION MADE IS UNJUSTIFIED, UNCALLED FOR AND THE SAME MAY BE DELETED. 8. THAT ALTERNATIVELY THE ADDITION MADE IS VERY HIGH & EXCESSIVE. 9. THAT INTEREST CHARGED U/S 234B OF THE IT ACT, 1961, IS NOT AT ALL CALLED FOR AND THE SAME IS LIABLE TO BE CANCELLED. ALTERNATIVELY, THE INTEREST CHARGED IS VERY HIGH & EXCESSIVE. 10. THAT ANY OTHER GROUND OF APPEAL WHICH MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL. (EMPHASIS SUPPLIED) ITA 1574TO 1577/CHD/2018 A.Y. 2008-09 TO 2011-12 PAGE 3 OF 5 5. A PERUSAL OF THE RECORD SHOWS THAT ON THE BASIS OF AIR INFORMATION WHEREIN DEPOSITS IN SPECIFIC BANK ACCOUNTS MAINTAIN ED WITH AXIS BANK LTD., CORPORATE OFFICE, BOMBAY DYEING MILLS COMPOUN D, PANDURANG BUDHKAR MARG, WORLI, MUMBAI-400001 IN THE NAME OF S HRI ANIL KUMAR WITH THE ADDA DAKHA (MANDI MULLANPUR BRANCH OF THE BANK) WERE NOTICED. ON SOME INVESTIGATION CARRIED OUT BY THE REVENUE IT WAS FOUND THAT THESE WERE MAINTAINED BY THE THEN BRANCH MANAGER OF THE B ANK SHRI JAGJEET SINGH I.E. THE ASSESSEE. STATEMENT U/S 131 OF THE ACT ETC. WAS TAKEN AND WERE ACCEPTED BY SHRI JAGJEET SINGH AS PER NARRATIO NS MADE IN THE ASSESSMENT ORDER. THE AO AFTER RECORDING REASONS E TC. PASSED THE ASSESSMENT ORDER DATED 18.03.2016 U/S 143(3) READ W ITH SECTION 147/148. THE ADDITIONS MADE THEREIN WERE CHALLENGED BEFORE T HE CIT(A) ON MERITS. THESE WERE SUSTAINED IN APPEAL. AGGRIEVED, THE ASSE SSEE IS IN APPEAL BEFORE THE ITAT. 6. THE LD. SR.DR IN THE SAID BACKGROUND RELIED UPON PARA 5.2 AND 5.3 OF THE IMPUGNED ORDER. THE RELEVANT PARAS ARE EXTRACTE D HEREUNDER FOR READY REFERENCE : 5.2 I HAVE CONSIDERED THE OBSERVATIONS OF THE ASSESSING OFFICER AS MADE BY HIM IN THE ASSESSMENT ORDER WHILE MAKING THE IMPUGNED ADDI TION. I HAVE ALSO CONSIDERED THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE VIDE LETTER DATED 08.10.2018 ON THE ISSUE UNDER REFERENCE. I HAVE FURTHER CONSIDERED OTHER MA TERIAL PLACED BY THE ASSESSEE ON RECORD. ON CAREFUL CONSIDERATION OF THE ASSESSMENT ORDER, IT HAS BEEN NOTICED THAT THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITION AS THE ASSESSEE, IN THE OPINION OF THE ASSESSING OFFICER, NEITHER COULD PRODUCE ANY DOCUME NTARY EVIDENCE TO SUPPORT HIS CLAIM THAT THE AMOUNT DEPOSITED IN THESE BANK ACCOU NT RELATE TO FARMERS OF THE AREA SURROUNDING THE BANK NOR COULD EXPLAIN THE NATURE A ND SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNTS OPENED BY HIM IN THE FICTITIOUS NAME OF SH. ANIL KUMAR INSPITE OF VARIOUS OPPORTUNITIES PROVIDED TO HIM IN THIS REGARD. ON TH E OTHER HAND, THE ASSESSEE HAS MADE IDENTICAL SUBMISSIONS TO THE SUBMISSIONS WHICH WERE MADE DURING ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS MAINLY SUBMITTED THAT AS THE MAJORITY OF THE TRANSACTIONS HAVE BEEN PROVED TO BE CORRECT THE BALANCE TRANSACT IONS SHOULD ALSO BE TREATED AS PROVED AS THE NATURE OF TRANSACTIONS IN BOTH THE BA NK ACCOUNTS ARE SAME. 5.3 ON CAREFUL CONSIDERATION OF THE RIVAL CONTENTIONS, I AM OF THE OPINION THAT THE ASSESSEE HAS FAILED TO PROVE HIS CONTENTION EVEN DU RING APPELLATE PROCEEDINGS WITH DOCUMENTARY EVIDENCE THAT THE CASH DEPOSITED IN BOT H THE BANK ACCOUNTS WAS PERTAINING TO THE CUSTOMERS OF THE BANK AND NOT TO HIM. SO, TH E VERSION OF THE ASSESSEE CANNOT BE ACCEPTED IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE . UNDER SUCH CIRCUMSTANCES, THE ACTION OF THE ASSESSING OFFICER IN MAKING AN ADDITI ON OF RS .76,50,000/- IN THIS CASE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK AC COUNTS ADMITTEDLY OPENED BY THE ASSESSEE IN THE FICTITIOUS NAME OF SH. ANIL KUMAR C ANNOT BE SAID TO BE UNJUSTIFIED. HAVING ITA 1574TO 1577/CHD/2018 A.Y. 2008-09 TO 2011-12 PAGE 4 OF 5 SAID SO, THE ADDITION OF RS . 76,50,000/-MADE BY THE ASSESSING OFFICER IN THIS CA SE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK AC COUNTS ADMITTEDLY OPENED BY THE ASSESSEE IN THE FICTITIOUS NAME OF SH. ANIL KUMAR I S, THEREFORE, UPHELD. IN THE RESULT, THE GROUND NO. 1 OF APPEAL TAKEN BY THE ASSESSEE IS DISMISSED. 6.1 HOWEVER, ADDRESSING THE JURISDICTIONAL CHALLENG E POSED IN GROUND NOS. 3 AND 4, IT WAS HER SUBMISSION THAT SINCE THE SAID ISSUE WAS NOT RAISED BEFORE THE CIT(A), THE ISSUE MAY BE REMANDED BACK FOR LOOKING INTO THE FACTS. 7. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE JURISDICTIONAL CHALL ENGE POSED IN THE GROUND NUMBERS 3 AND 4 IN THE PRESENT PROCEEDINGS WAS NOT RAISED BEFORE THE CIT(A). ACCORDINGLY, THERE IS NO DISCUSSION ON THE ISSUE. IN THE ABSENCE OF RELEVANT DISCUSSION ON FACTS, IT IS DEEMED APPROPRI ATE TO SET ASIDE THE ISSUE BACK TO THE FILE OF THE CIT(A). AS A RESULT THEREO F, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A) WITH THE DIRE CTION TO FIRST ADDRESS THE JURISDICTIONAL CHALLENGE AND THEREAFTER PROCEED TO DECIDE THE APPEAL ON MERITS INCLUDING THE ALTERNATE PRAYER OF THE ASSESS EE COUCHED IN GROUND NO. 8. WHILE SO DIRECTING IT IS HOPED THAT THE ASS ESSEE PARTICIPATES IN THE PROCEEDINGS FULLY AND FAIRLY AND DOES NOT ABUSE THE TRUST REPOSED. 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 O F MATERIAL AVAILABLE ON RECORD. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 9. SINCE THE FACTS, CIRCUMSTANCES AND POSITION OF L AW ON EACH OF THE REMAINING APPEALS REMAINS THE SAME WHEREIN THE JURI SDICTIONAL ISSUE HAS BEEN RAISED IN EACH OF THE APPEALS FOR THE FIRST TI ME BEFORE THE ITAT AND HAD NOT BEEN RAISED BEFORE THE CIT(A) CONSEQUENTLY, HAS NOT BEEN ADJUDICATED UPON BY THE CIT(A). ACCORDINGLY IN THE INTEREST OF SUBSTANTIAL JUSTICE FOR THE REASONING SET OUT HEREIN ABOVE, THE IMPUGNED ORDERS IN THE REMAINING THREE APPEALS ARE ALSO SET ASIDE WITH IDENTICAL DIRECTIONS BACK TO THE FILE OF THE CIT(A). ITA 1574TO 1577/CHD/2018 A.Y. 2008-09 TO 2011-12 PAGE 5 OF 5 SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 10. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JULY,2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER % $ '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR