Sailendra Kumar Parija, Jagatsinghpur V. ITO, Ward-1, Paradeep

ITA 165/CTK/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3872 (ITAT-CUTTACK)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 04-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 27-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Keywords: Unexplained investment; Capital asset; Principle of natural justice; Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 165 /CTK/2016 ASSESSMENT YEAR : 2009 - 2010 SAILENDRA KUMAR PARIJA, BIJAY CHANDRAPUR, ATHARBANKI, PARADEEP, VS. ITO, WARD - 1, PARADEEP PAN/GIR NO. AGQPP 6380 E (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 04 /04 / 2017 DATE OF PRONOUNCEMENT : 04 /04 / 2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 20.7.2015 FOR THE ASSESSMENT YEAR 2009 - 2010 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT, THE ORDERS OF THE FORUMS BELOW ARE ILLEGAL, ARBITRARY AND EXCESSIVE EXERCISE OF JURISDICTION AS WEL L AS PASSED WITHOUT AFFORDING REASONABLE OPPORTUNITY TO ADDUCE THE SUPPORTING EVIDENCES AND AS SUCH ARE NOT SUSTAINABLE IN THE EYE OF LAW AND LIABLE TO BE QUASHED. 2. FOR THAT, THE ORDER OF ASSESSMENT IS ARBITRARY IN AS MUCH AS THE LEARNED ASSESSING OFFICER WITHOUT ISSUING ANY SHOW CAUSE NOTICE/DRAFT ASSESSMENT ORDER HAS COMPLETED THE ASSESSMENT U/S.144/147 BY MAKING THE ADDITION OF THE ENTIRE INVESTMENT IN 2 ITA NO. 165/CTK/2016 ASSESSMENT YEAR :2009 - 2010 PURCHASE OF LAND, WHICH IS MANDATORY PROCEDURE FOR COMPLETION OF THE ASSESSMENT AND AS SUCH TH E ORDER IS LIABLE TO BE QUASHED BEING VIOLATION OF STATUTORY PROCEDURE AND PRINCIPLE OF NATURAL JUSTICE. 3. FOR THAT, ADDITION OF RS.24,64,027/ - BY THE LEARNED AO, WHICH HAS BEEN CONFIRMED BY THE LEARNED CIT(APPEAL) AT RS. 15,00,000/ - AS UNEXPLAINED INVESTMENT IS OUT AND OUT ILLEGAL SINCE BOTH THE FORUMS HAVE NOT CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE ASSESSEE AS WELL AS HIS WIFE ARE FILING THEIR INCOME TAX RETURN SINCE LONG PRETTY TIME BY DISCLOSING THE INCOME FROM TRUCK PLYING AND FISHING BUSINESS AND THE CASH FLOW STATEMENT DISCLOSED SUFFICIENT CASH BALANCE WITH THE ASSESSEE AND THE INVESTMENT WAS MADE OUT OF THE SAID CASH BALANCE AND AS SUCH THE ORDERS OF THE FORUM BELOW ARE LIABLE TO BE QUASHED IN THE INTEREST OF JUSTICE. 3. AT THE TIME OF HEARING, LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED A PETITION FOR ADJOURNMENT OF HEARING ON THE GROUND THAT HE IS SICK BUT THE PETITION IS NOT ACCOMPANIED BY ANY MEDICAL CERTIFICATE. FURTHER, THE ASSESSEE S REQUEST FOR ADJOURNM ENT WAS GRANTED WHEN THE CASE WAS FIXED ON FOLLOWING DATES: 8.11.2016, 9.1.2017, 23.1.2017, 15.3.2017 AND 28.3.2017 THEREFORE, THE ADJOURNMENT PETITION FILED BY THE ASSESSEE WAS REJECTED AND THE APPEAL WAS DISPOSED OF EXPARTE AFTER CONSIDERING THE SUBMI SSION OF LD DEPARTMENTAL REPRESENTATIVE AND MATERIALS AVAILABLE ON RECORD. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 31.3.2011 SHOWING TOTAL INCOME OF RS.3,46,610/ - . THE RETURN WAS PROCESSED U/S.143(1) OF THE ACT. THEREAF TER, INFORMATION WAS OBTAINED FROM SUB - REGISTRAR, KUJANGA THAT THE ASSESSEE PURCHASED A LAND ON 3 ITA NO. 165/CTK/2016 ASSESSMENT YEAR :2009 - 2010 27.3.2009 FOR A CONSIDERATION OF RS.22,40,000/ - AT BALARAMPUR, JAGATSINGHPUR DURING THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER OBSERVED THAT THE ASSES SEE INVESTED A HUGE AMOUNT IN ACQUIRING CAPITAL ASSET AND THE SOURCE OF INCOME DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME WAS NOT SUFFICIENT. THEREFORE, PROCEEDINGS U/S.147 WAS INITIATED AND NOTICE U/S.148 WAS ISSUED ON 14.8.2012. THE ASSESSEE DID NOT COMPLY TO THE NOTICE U/S.148 OF THE ACT. SUBSEQUENTLY, NOTICE U/S.142(1) WAS ISSUED. 5. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE PURCHASED A LAND OF A 1.28 DECIMAL AT BARAMPUR, JAGATSINGHPUR FROM KAILASH CHANDRA DAS & OTHERS FOR A CONSIDERATI ON OF RS.22,40,000/ - VIDE PURCHASE DEED EXECUTED ON 27.3.2009. WHEN THE ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF INVESTMENT IN ACQUIRING THE SAID LAND, THE ASSESSEE COULD NOT EXPLAIN THE SOURCE FOR ACQUISITION OF LAND. THE ASSESSING OFFICER OBSERVED T HAT THE COST OF LAND WAS RS.22,40,000/ - AND THE COST OF STAMP PAPER WAS RS.1,60,000/ - AND REGISTRATION EXPENSES WAS RS.64,027/ - AGGREGATING TO RS.24,64,027/ - . SINCE THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF INVESTMENT IN THE LAND, HE ADDED RS.24,64,027 / - TO THE INCOME OF THE ASSESSEE. 6. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO RESTRICTED THE ADDITION TO RS.15,00,000/ - BY OBSERVING AS UNDER: THE APPELLANT DURING APPEAL HEARING SUBMITTED THAT HE DERIVES INCOME FROM TRUCK PLYING AND FISHING BUSINESS. HE HAS NOT MAINTAINED BOOKS OF ACCOUNTS. THE INCOME FROM TRUCK PLYING IS GENERALLY SHOWN BY HIM AS PER SEC. 44 AE AND INCOME FROM FISHING BUSINESS IS SHOWN ON ESTIMATION BASIS. THE APPELLANT 4 ITA NO. 165/CTK/2016 ASSESSMENT YEAR :2009 - 2010 FURTHER SUBMITTED THAT IT HAS BEEN PAYING TAX AND FILING RETURN OF INCOME FOR PAST FEW YEARS AND HIS WIFE ALSO HAS BEEN SHOWING INCOME AND PAYING TAXES FOR QUITE SOME YEARS. HOWEVER, THE APPELLANT COULD NOT PRODU CE ANY EVIDENCE REGARDING THE SOURCE OF INVESTMENT MADE BY HIM AS ABOVE. THE AO STATED IN THE ASSESSMENT ORDER THAT THE INCOME DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME IS NOT SUFFICIENT. FROM THE PERUSAL OF THE RETURNS OF INCOME MADE BY THE ASSESS EE AND HIS WIFE, IT IS SEEN THAT FOR PAST FEW YEARS THEY HAVE BEEN SHOWING INCOME BETWEEN RS.L LAKH TO RS. 2 LAKH OUT OF BUSINESS. HOWEVER, CONSIDERING THAT THERE WOULD BE SOME SAVING BY BOTH THE ASSESSEE AND HIS WIFE OVER THE YEARS WHICH THEY HAVE INVESTE D JN PURCHASE OF LAND, THE AO IS DIRECTED TO RESTRICT THE DISALLOWANCE TO RS.15,00,000/ - . 7. AFTER CONSIDERING THE ARGUMENTS OF LD DEPARTMENTAL REPRESENTATIVE, AND PERUSING THE ORDER OF THE CIT(A) AN D MATERIALS AVAILABLE ON RECORD, I FIND THAT I N THE ORDER, THE CIT(A) HAS GIVEN A CATEGORICAL FINDING THAT EXCEPT SHOWING INCOME BETWEEN RS.1 LAKH T 2 LAKH OUT OF BUSINESS IN THE RETURN OF INCOME BY THE ASSESSEE AND HIS WIFE, NO OTHER INCOME WAS SHOWN BY THE ASSESSEE. HOWEVER, CONSIDERING THE SAVIN GS, SHE RESTRICTED THE ADDITION TO RS.15,00,000/ - . BEFORE ME, NO SPECIFIC ERROR IN THE FINDINGS OF THE CIT(A) COULD BE POINTED OUT. FURTHER, THE SOURCE OF BALANCE AMOUNT OF INVESTMENT OF RS.15,00,000/ - COULD NOT BE EXPLAINED BY FILING ANY POSITIVE MATER IAL ON RECORD. THEREFORE, I DO NOT FIND ANY GOOD AND JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER OF THE CIT(A), WHICH IS HEREBY CONFIRMED AND GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISSED. 5 ITA NO. 165/CTK/2016 ASSESSMENT YEAR :2009 - 2010 8. IN THE RESULT, THE APPEAL F ILED BY THE ASSESSEE IS DIS MISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 04 /04 /2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 04 /04 /2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : SAILENDRA KUMAR PARIJA, BIJAY CHANDRAPUR, ATHARBANKI, PARADEEP, 2. THE RESPONDENT. ITO, WARD - 1, PARADEEP 3. THE CIT(A) CUTTACK 4. PR.CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//