SHRI RAMESH CHAND SAINI, JAIPUR V. ITO, WARD-5(4), JAIPUR

ITA 16/JPR/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2727 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 30-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K SHARMA; PALLAVI JOSHI
• Keywords: Opportunity of being heard; Principle of natural justice; Corroborative evidences
• Section: 142(1); 148; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 16/JP/2021 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 RAMESH CHAND SAINI 502 LUHADIA TOWER V ASHOK MARGE, C-SCHEME, JAIPUR-302034. CUKE VS. THE ITO, WARD -5(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: CKAPS 9331 J VIHYKFKHZ@ APPELLA NT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI PALLAVI JOSHI (ADV.) & SHRI S.K. SHARMA (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/10/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 27/10/2021 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 09.01.2020 OF LD. CIT(A)-2, JAIPUR FOR THE ASSESSME NT YEAR 2011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) ERRED IN NOT PROVIDING AN APPROP RIATE OPPORTUNITY OF BEING HEARD WHICH IS AGAINST LAW OF NATURAL JUSTICE. ITA NO.16/JP/2021 RAMESH CHAND SAINI VS. ITO 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. AO WAS ERRED IN ISSUING THE NOTICE U/S 148 OF THE INCO ME TAX ACT, 1961 AND THE SAME WAS CONFIRMED BY THE LD. CIT(A). 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. AO WAS ERRED IN MAKING ADDITION OF CASH DEPOSIT OF RS. 14,36,393/- IN AXIS BAND AND RS. 1,09,000/- IN ICICI BANK AS UN DISCLOSED INCOME 4. THE ASSESSEE RESERVES THE RIGHT TO ADD, ALTER, A MEND AND DELETE ANY OF THE GROUNDS OF APPEAL ON OR BEFORE HE ARING. 2. DUE TO PREVAILING COVID-19 PANDEMIC CONDITION TH E HEARING OF THE APPEAL IS CONCLUDED THROUGH VIDEO CONFERENCE. 3. AT THE OUTSET, WE NOTE THAT THE PRESENT HAS BEEN FILED BY THE ASSESSEE AFTER A GAP OF MORE THAN ONE YEAR FROM THE DATE OF IMPUGNED ORDER HOWEVER, THE ASSESSEE HAS STATED IN FORM NO. 36 THAT THE IMPUGNED ORDER HAS BEEN SERVED ON THE ASSESSEE ONLY 25.03.2021. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF DELAY I F ANY IN FILING THE PRESENT APPEAL. SINCE THERE WAS AN ORDER OF THE DEP ARTMENT RELAXING THE LIMITATION DURING PERIOD OF COVID-19 PANDEMIC A S WELL AS DECISION OF THE HONBLE SUPREME COURT EXTENDING THE LIMITATION PROVIDED UNDER GENERAL STATUTE I.E. LIMITATION ACT UNDER AS WELL AS UNDER SPECIAL STATUTE DURING THIS PERIOD ENDING UP TO MID OCTOBER, 2021. ACCORDINGLY IN THE ITA NO.16/JP/2021 RAMESH CHAND SAINI VS. ITO 3 FACTS AND CIRCUMSTANCES OF THE CASE THE PRESENT APP EAL FILED BY THE ASSESSEE IS TREATED AS WITHIN A PERIOD OF LIMITATIO N. 4. THE ASSESSEE IS AN INDIVIDUAL AND DID NOT FILE A NY RETURN OF INCOME U/S 139 OF THE INCOME TAX ACT. THE AO ISSUED A NOTICE U/S 148 OF THE ACT ON 30.03.2018 BUT THERE WAS NO RETURN OF INCOME FILED BY THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED U/S 148 O F THE ACT. THE ASSESSING OFFICER HAS ALSO ISSUED SHOW CAUSE NOTICE U/S 142(1) OF THE IT ACT ASKING THE ASSESSEE TO FURNISH EXPLANATION R EGARDING THE INCOME FROM THE ACTIVITY OF TRADING IN COMMODITY AS WELL A S SOURCE OF DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESEE. THE ASSESS ING OFFICER MADE ADDITION FOR VARIOUS DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE WITH AXIS BANK AND ICICI BANK INCLUDING INTEREST AS WELL AS COMMISSION/BROKERAGE INCOME OF RS. 2,612/- TOTAL AM OUNTING TO RS. 15,69,474/-. THUS, THE ASSESSING OFFICER HAS DETERM INED THE TOTAL INCOME OF THE ASSESSEE AT RS. 15,69,470/- WHILE PAS SING THE ORDER U/S 147/144 OF THE ACT. THE ASSESSEE CHALLENGED THE EX- PARTE ORDER PASSED BY THE AO BEFORE THE LD. CIT(A) BUT THE ASSESSEE CO ULD NOT ATTEND THE PROCEEDINGS BEFORE THE LD. CIT(A) AND CONSEQUENTLY THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A) SUMMARILY. ITA NO.16/JP/2021 RAMESH CHAND SAINI VS. ITO 4 5. NOW BEFORE THE TRIBUNAL, THE LD. AR OF THE ASSES SEE HAS SUBMITTED THAT THE ASSESSING OFFICER HAS PASSED AN EX-PARTE ORDER WITHOUT SERVING A NOTICE ON THE ASSESSEE AND FURTHE R, THE LD. CIT(A) HAS ALSO DISMISSED THE APPEAL OF THE ASSESSEE WHILE PA SSING AN EX-PARTE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY OF HEAR ING TO THE ASSESSEE. THUS THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE MAY BE GRANTED ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE THE LD. CIT(A) AND TO FILE SUPPORTING EVIDENCE TO EXPLAIN T HE SOURCE OF DEPOSITS IN THE BANK ACCOUNT. 6. ON THE OTHER HAND THE LD. DR HAS VEHEMENTLY OBJ ECTED TO GRANT OF ONE MORE OPPORTUNITY TO THE ASSESSEE AND SUBMITT ED THAT DESPITE SUFFICIENT OPPORTUNITIES GRANTED BY THE AO AS WELL AS LD. CIT(A) THE ASSESSEE DID NOT APPEAR BEFORE THE AUTHORITY BELOW AND THEREFORE, THE CONDUCT OF THE ASSESSEE SHOWS THAT THE ASSESSEE IS NOT SERIOUS ABOUT THE PROCEEDINGS BUT HAS ADOPTED DELAYING TACTICS. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE LD. CIT(A) DISMIS SED THE APPEAL OF THE ASSESSEE IN PARA 2.2 TO 3 WHICH READS AS UNDER:- 2.2 I HAVE PERUSED THE FACTS OF THE CASE AND THE A SSESSMENT ORDER. IN THIS CASE, THE AMPLE NUMBER OF OPPORTUNIT IES GIVEN TO THE APPELLANT ARE TABULATED BELOW:- ITA NO.16/JP/2021 RAMESH CHAND SAINI VS. ITO 5 DATE OF HEARING FIXED REMARKS 25.09.2019 FILED ADJOURNMENT LETTER. ADJOURN TO 22.10.2019 22.10.2019 FILED ADJOURNMENT LETTER. ADJOURN TO 20.11.2019 20.11.2019 FILED ADJOURNMENT LETTER. ADJOURN TO 12.12.2019 11.12..2019 FILED ADJOURNMENT LETTER. ADJOURN TO 07.01.2019 07.01.2019 NONE ATTENDED 2.2.1 IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE AP PELLANT AND THE AUTHORIZED REPRESENTATIVE ARE NOT INTERESTED IN CON TESTING THE APPEAL AND IN-SPITE OF SUFFICIENT OPPORTUNITY AND T IME HAVE NOT SUBMITTED ANY DETAIL WHAT SO EVER. ON MERITS IT SEE MS THAT ASSESSEE HAS NOTHING TO SAY IN SUPPORT OF GROUNDS O F APPEAL TAKEN. AFTER CAREFUL CONSIDERATION OF THE ORDER, I FIND THAT ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION, HE NCE GROUND OF APPEAL IS DISMISSED. 3. IN THE RESULT, THE APPEAL IS DISMISSED THUS IT IS CLEAR THAT THE LD. CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE AO ON THE GROUND THAT THE ASSESSEE IS NOT INTER ESTED IN CONTESTING THE APPEAL IN SPITE OF SUFFICIENT TIME GRANTED TO H IM. IT IS PERTINENT TO NOTE THAT THE ASSESSING OFFICER HAS MADE ADDITIONS ON ACCOUNT OF ITA NO.16/JP/2021 RAMESH CHAND SAINI VS. ITO 6 UNEXPLAINED DEPOSITS IN THE BANK ACCOUNTS OF THE AS SESSEE FOR WANT OF ANY EXPLANATION ON BEHALF OF THE ASSESSEE. THE LD. CIT(A) HAS NOT DECIDED THE ISSUE BY CONSIDERING ANY EXPLANATION OR RECORD TO BE FURNISHED BY THE ASSESSEE BUT THE APPEAL OF THE ASS ESSEE IS SUMMARILY DISMISSED DUE TO NON APPEARANCE. EXCEPT ON THE LAST DATE OF HEARING I.E. 07.01.2020 WHICH IS WRONGLY MENTION IN THE IMP UGNED ORDER AS 07.01.2019 ON ALL OTHER OCCASIONS THE LD. CIT(A) AC CEPTED THE REQUEST FOR ADJOURNMENT OF HEARING THEREFORE, THE DEFAULT O F APPEARING BEFORE THE LD. CIT(A) ON THE LAST DATE OF HEARING HAS RESU LTED EX-PARTE ORDER. THE ISSUE INVOLVED IN THIS CASE IS REGARDING SOURCE OF DEPOSITS MADE IN BANK ACCOUNT AND THE AO ACCEPTED THE ACTIVITY OF TH E ASSESSEE IN COMMODITY TRADING THEREFORE, IN THE FACTS AND CIRCU MSTANCES OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE MAY BE GRANTED ONE MORE OPPORTUNITY TO EXPLAIN THE SOURCE OF DEPOSITS BY PRODUCING THE RELEVANT DOCUMENT/EVIDENCE. ACCORDINGLY WE SET ASID E TO THE IMPUGNED ORDER OF THE LD. CIT(A) AND THE MATTER IS REMANDED TO THE RECORD OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH AFTER GRANT ING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE TO EXPLAIN T HE SOURCE OF DEPOSITS WITH SUPPORTING EVIDENCE. ITA NO.16/JP/2021 RAMESH CHAND SAINI VS. ITO 7 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27/10/2021. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/10/2021. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- RAMESH CHAND SAINI, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-5(4), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 16/JP/2021} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR