M/s. Zonal Mining & Loading Contractor, Keonjhar V. ACIT, Circle-1(1), Sambalpur

ITA 166/CTK/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5293 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: B R PANDA
• Keywords: Unexplained investment; Business income; Principle of natural justice
• Section: 69C; 142(1); 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 166 / CTK /20 1 6 ( / ASSESSMENT YEAR : 20 1 0 - 20 1 1 ) M/S ZONAL MINING & LO ADING CONTRACTOR, AT - JURUDI, PO - JAJANGA, VIA - JODA, DIST - KEONJHAR - 758052 VS. ACIT, CIRCLE - 1(1), SAMBALPUR ./ ./ PAN/GIR NO. : A AAFZ 1495 M ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHR I B.R.PANDA , AR /REVENUE BY : SHRI D.K.PRADHAN , DR / DATE OF HEARING : 2 8 / 1 2 /201 7 / DATE OF PRONOUNCEMENT 28 / 1 2 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : THE ASSESSEE HAS FILED AN AP PEAL AGAINST THE ORDER OF CIT(A), CUTTACK, DATED 23.02.2016 FO R THE ASSESSMENT YEAR 2011 - 2012, WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - A. FOR THAT THE ORDERS OF THE FORUMS BELOW ARE UNJUST, ILLEGAL, IMPROPER, CAPRICIOUS IN THE FA CTS OF THE CASE, HENCE, THE ENTIRE ADDITION U/S.69 AND 69C OF THE IT ACT SHOULD BE QUASHED AND DELETED. B. FOR THAT THE ADDITION OF RS.14,52,230/ - BY THE ID. AO AND CONFIRMED THE SAME IN THE FIRST APPEAL IS BAD IN LAW SINCE THE CLOSING BALANCE IN THE CUR RENT ACCOUNT OF BANK IS NOT AN INVESTMENT TO ATTRACT THE PROVISIONS OF SECTION 69 OF THE IT ACT. THEREFORE THE ADDITION AS SUCH IS NOT ACCEPTED. C. FOR THAT, THE ID. AO HAD ACCEPTED THE TRANSACTIONS INVOLVED IN THE CURRENT ACCOUNT NO. 0218 - U62700 - 060 RE LATING TO BUSINESS INCOME OF THE APPELLANT SHOWN IN THE RETURN OF INCOME, THUS ADDITIONS OF CLOSING BALANCE OF SAME AS UNEXPLAINED INVESTMENT IS ILLEGAL AND BAD IN LAW NEEDS TO BE DELETED IN TOTO. D. FOR THAT, ADDITION OF RS.37,86,283/ - AS UNEXPLAINED E XPENDITURE U/S.69C OF THE IT ACT IN MECHANICAL MANNER WITHOUT PROPER ITA NO. 166 /CTK/201 6 2 CONFRONTATION OF THE MATTER AND FAILURE TO GRANT OPPORTUNITY AND REASONS CAUSED ILLEGALITY, HENCE THE ORDERS PASSED LACK PRINCIPLES OF NATURAL JUSTICE. E. FOR THAT THE INFLATION OF THE TOTAL INCOME WITHOUT CONFRONTATION AND WITHOUT CONSIDERING THE RECORDS, BANK DOCUMENTS, ETC. PLACED FOR APPRECIATION, CAUSED ARBITRARINESS IN THE MATTER. HENCE THE ORDERS PASSED SHOULD BE QUASHED IN TOTO. F. FOR THAT THE LD. AO HAD GROSSLY ERRED IN LAW FOR NOT GIVING FULL CREDIT OF TDS MADE FROM T HE INCOME TO INFLATING THE TAX LIABILITY. G. FOR THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS FLOUTED AND ERRED IN LAW CONFIRMING THE ORDER OF ASSESSMENT WITHOUT APPLICATION OF INDEPENDENT MIND. THEREFORE, THE ORDER OF THE FORUMS BELOW HAVE TO BE QUASHED IN TOTO DELETING THE ILLEGAL ADDITIONS MADE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE A PARTNERSHIP FIRM WITH THREE PARTNERS VIZ. MATO PRASAD JAISWAI, CHDITAN PENTHEI AND MAHENDRA KUMAR MOHANTY HAVING PROFIT SHARING OF 33.33% EACH, DERIVES INCOME AS A TRANSPORTING CONTRACT. THE RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR HAS BEEN FILED THROUGH ELECTRONIC MEDIA VIDE E - FILING ACK. NO. 1168280081101010 ON 10.10.2010 SHOWING TOTAL INCOME OF RS.32,34,420/ - . THE CASE WAS SELECTED THROUGH CASS FOR DETAIL SCRUTINY AND THE NOTICE U/S 143(2) AND 142(1) OF THE IT ACT, 1961 WERE ISSUED AND SERVED ON ASSESSEE ACCORDINGLY. IN RESPONSE TO DEPARTM ENTAL NOTICES AND QUESTIONNAIRE , LD. AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND T HE CASE WAS HEARD. THE AO ON PERUSAL OF ALL THE DOCUMENTS AND SUBMISSIONS OF THE ASSESSEE, MADE THE ADDITIO N OF RS. 14,52,230/ - AS UNDISCLOSED INVESTMENT OF THE ASSESSEE U/S.69 OF THE ACT AND RS.37,86,283/ - ON ACCOUNT OF PAYMENTS OF UNEXPLAINED NATURE TO PARTIES U/S.69C OF THE ACT AND ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT ITA NO. 166 /CTK/201 6 3 RS.84,72,933/ - AND PASSED THE ORDER U/S.143(3) OF THE ACT, DATED 19.03.2013. 3. BEING AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) AND THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 4. NOW, THE ASSESS EE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 5. AT THE OUTSET, LD. AR, SUBMITTED AND FILED THE SE EVIDENCES WHICH ARE VITAL FOR DECIDING THE APPEAL AND PRAYED FOR ALL OWING THE APPEAL . 6 . LD. DR, ON THE OTH ER HAND, OPPOSED TO THE EVIDENCES FILED BY THE ASSESSEE AS THE SAME ARE FILED FOR THE FIRST TIME BEFORE THE TRIBUNAL. 7 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA FACIE, WE FOUND FROM THE ORDERS OF THE LOWER AUTHORITIES THAT THE ASSESSEE WAS UNABLE TO SUBSTANTIATE ITS CLAIM . HOWEVER, THE ASSESSEE TO PROVE THE GENUINENESS HAS FILED EVIDENCES BEFORE THE TRIBUNAL AND AT THE TIME OF HEARING LD. DR TOOK OBJECTION TO THE SUBMISSIONS OF LD. AR AS THE ASSESSE E HAS NOT FILED TH E SE DOCUMENTS BEFORE THE CIT(A) IN THE APPELLATE PROCEEDINGS . CONSIDER ING THE FACTS AND CIRCUMSTANCES OF THE CASE AND PRINCIPLE S OF NATURAL JUSTICE, WE REMIT THE ENTIRE DISPUTED ISSUE TO THE FILE OF CIT(A) , WHO SHALL CONSIDER THE EVIDENCES AND SUBMISSIONS OF THE LD. AR OF THE ASSESSEE AND DECIDE THE CASE AFTER PROVIDING ADEQUATE OPPORTUN ITY OF HEARING TO THE ASSESSEE. IT IS MADE CLE AR THAT IF THE ASSESSEE DOES NOT COOPERATE WITH THE CIT(A) IN THE PROCEEDINGS BEFORE HIM, THE CIT(A) SHALL BE AT LIBERTY TO PASS ANY ORDER AS HE MAY DEEM FIT IN THE MATTER. A CCORDINGLY, WE ALLOW THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. ITA NO. 166 /CTK/201 6 4 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 /12/2017. SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTAN T MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 28 / 1 2 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - 2. / THE RESPONDE NT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//