Shri Mahadeo Bapurao Dhawale, V. Income-tax Officer, (CIB),

ITA 1669/PUN/2011

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2275 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 26-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT HALDER
• Keywords: Opportunity of being heard; Source of fund; Non compliance

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . , , ! ' BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1669/PN/2011 !$ $ / ASSESSMENT YEAR : 2005-06 SHRI MAHADEO BAPURAO DHAWALE, 30, SHANIWAR PETH, KARAD PAN NO.ANAPD4199E . / APPELLANT V/S ITO, CIB, KOLHAPUR . / RESPONDENT / ASSESSEE BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI ABHIJIT HALDER / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26-09-2011 OF THE CIT(A) CENTRAL, PUNE RELATING TO ASSESSMENT YEAR 2005-06. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN TAKEN BY TH E ASSESSEE THEY ALL RELATE TO THE ORDER OF THE CIT(A) IN CON FIRMING THE ADDITION OF RS.24,13,149/- MADE BY THE AO. / DATE OF HEARING :16.11.2015 / DATE OF PRONOUNCEMENT:16 .11.2015 2 ITA NO.1669/PN/2011 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND RESIDES IN KARAD. IN THIS CASE, THE AO OBTA INED INFORMATION FROM THE RETURN FURNISHED U/S.285BA OF THE ACT THAT THE ASSESSEE HAS MADE CASH DEPOSIT OF RS.24,13,149/- IN H IS SAVINGS BANK ACCOUNT. THE AO, THEREFORE, ISSUED A NOTICE U/S.142(1) TO THE ASSESSEE ASKING HIM TO FILE HIS RETURN FOR A.Y. 2005-06. ALTHOUGH THE NOTICE WAS DULY SERVED ON THE ASSESSEE ON 29-10-2007, HOWEVER, THERE WAS NO COMPLIANCE FOR WHICH T HE AO ISSUED ANOTHER NOTICE CALLING FOR THE FOLLOWING DETAILS : 1. SOURCES OF INCOME FOR CASH DEPOSITS MADE IN THE SAVIN GS BANK ACCOUNT OF THE ASSESSEE DURING F.Y. 2004-05 ALONG WITH NECESSARY DOCUMENTARY EVIDENCE IN SUPPORT OF THE SOURCES OF INCO ME. 2. DETAILS OF BANK ACCOUNTS MAINTAINED BY THE ASSESSEE D URING THE F.Y. 2004-05 WITH BANK PASS BOOKS/BANK ACCOUNT STATEMEN TS. 3. STATEMENT OF ASSETS/LIABILITIES AS ON 31-03-2005. 4. ALTHOUGH THE SAID NOTICE WAS SERVED ON THE ASSESSE E ON 14-12-2007, HOWEVER, THERE WAS NO RESPONSE FROM THE AS SESSEE. THEREFORE, THE AO COMPLETED THE ASSESSMENT U/S.144 BY T REATING THE DEPOSIT OF RS.24,13,149/- IN THE SAVINGS BANK ACCOUNT AS UNEXPLAINED DEPOSIT. 5. BEFORE CIT(A) THE ASSESSEE ARGUED THAT HE COMES FROM A RURAL AREA LIKE KARAD AND HE IS 80 YEARS OLD DURING THAT PERIOD . FURTHER, THE ASSESSEE FILED RETURN OF INCOME ON 31-12-2007 ALONG W ITH DETAILS OF BANK ACCOUNTS, SOURCE OF DEPOSITS IN THE BANK A CCOUNT ETC. ALTHOUGH THE AO WAS AWARE OF THE SAID RETURN FILED, H OWEVER, THE AO NEVER CONSIDERED THE SAME. IT WAS FURTHER SUBM ITTED THAT ONLY THE REAL INCOME CAN BE TAXED IN THE HANDS OF THE A SSESSEE. THE AO WHILE MAKING THE ASSESSMENT DID NOT CONSIDER THE CONT RA ENTRIES OF WITHDRAWAL FROM THE SAID BANK ACCOUNT. RELYING ON 3 ITA NO.1669/PN/2011 VARIOUS DECISIONS IT WAS ARGUED THAT ONLY DEPOSITS IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE WITHOUT CONSIDERING CORRES PONDING WITHDRAWALS CANNOT BE REAL INCOME TAXABLE UNDER THE ACT. 6. BASED ON THE VARIOUS ARGUMENTS ADVANCED BY THE AS SESSEE THE LD.CIT(A) CALLED FOR A REMAND REPORT FROM THE AO WHO S TATED THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE. THE LD.C IT(A) CONFRONTED THE CONTENTS OF THE REMAND REPORT BUT SINCE THERE WAS NON- COMPLIANCE BY THE ASSESSEE THE LD.CIT(A) CONFIRMED T HE ADDITION MADE BY THE AO BY OBSERVING AS UNDER : 7. COPY OF AO'S REPORT WAS GIVEN TO THE APPELLANT O N 18/5/2011 WITH A REQUEST TO SUBMIT HIS COMMENTS ON THE REPORT OF THE AO ON OR BEFORE 30/5/2011. NO COMPLIANCE WAS MADE BY THE APPE LLANT. AGAIN VIDE LETTER DATED 17/8/2011 ONE MORE OPPORTUNITY WA S GIVEN TO SUBMIT HIS COMMENTS ON OR BEFORE 31/8/2011. IT WAS INF ORMED THAT IF NO COMPLIANCE IS MADE ON OR BEFORE 31/8/2011, IT WI LL BE ASSUMED THAT APPELLANT HAS NOTHING TO SAY IN THE MATTER AND A PPEAL WILL BE PROCEEDED ACCORDINGLY WITHOUT GIVING ANY FURTHER OP PORTUNITY. NO COMPLIANCE WAS MADE BY THE APPELLANT TILL DATE. UNDE R THE CIRCUMSTANCES, I HAVE NO ALTERNATIVE BUT TO PROCEED O N THE BASIS OF MATERIAL AVAILABLE ON RECORD. 8. ACCORDING TO THE APPELLANT, TRANSACTIONS IN THE SAVING BANK ACCOUNT ARE ONLY THE SUM TOTAL OF DEPOSITS ON VARIOUS O CCASIONS WITHOUT CONSIDERING THE CONTRA ENTRIES OF WITHDRAWALS. APPELLANT HAS ALSO SUBMITTED LETTERS FROM VARIOUS 11 PERSONS FROM WHOM HE HAS TAKEN HAND LOAN FOR THE PURPOSE OF CONDUCTING BUSINESS ACTIVITY. THESE ARE THE PRIVATE LOAN CERTIFICATES AND GENUINENESS OF T HE SAME WAS TO BE PROVED BY THE APPELLANT. APPELLANT WAS GIVEN OPPORTU NITIES TO PROVE GENUINENESS OF THESE LOANS U/S 250(4) OF THE IT ACT ON VARIOUS OCCASIONS BY THE ACIT, SATARA BUT APPELLANT DID NOT A TTEND. UNDER THE CIRCUMSTANCES, I HOLD THAT APPELLANT FAILED TO PROVE THE GENUINENESS OF THE DEPOSITS IN HIS SAVING BANK ACCOUNT IN SPITE OF GIV ING SUFFICIENT TIME TO SUBMIT HIS COMMENTS. THEREFORE, THE AO'S ACTION IN T REATING RS.24,13,149/- AS INCOME FROM OTHER SOURCES IS UPHELD. 7. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IN APPEAL BEFORE US. 8. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED WI TH FOLDED HANDS THAT THE ASSESSEE IS A SENIOR CITIZEN AND WA S NOT UNDER PROPER ADVICE FOR WHICH ALL THESE UNFORTUNATE THINGS 4 ITA NO.1669/PN/2011 HAPPENED. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE T HE ASSESSEE SHOULD BE GIVEN ONE FINAL OPPORTUNITY TO SUBSTANTIATE HIS CASE SINCE THE ENTIRE DEPOSITS IN THE SAVINGS BANK ACCOUNT HAVE BEEN ADDED TO THE TOTAL INCOME OF THE ASSESSEE WITHOUT CONSIDERING THE CORRESPONDING WITHDRAWALS FROM THE SAID BANK ACCOUNT. 9. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND SUBMITTED THAT THE ASSESSEE IS A RECALCITRANT ONE WHO H AS SCANT REGARDS FOR THE STATUTORY NOTICES ISSUED BY THE DEPART MENT. THEREFORE, NO LENIENCY SHOULD BE SHOWN TO THE ASSESSEE A ND THE ORDER PASSED BY THE CIT(A) BE UPHELD. IN HIS ALTERNATE C ONTENTION THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT IN CA SE THE MATTER IS RESTORED BACK TO THE FILE OF THE REVENUE AUTH ORITIES, THEN SOME EXEMPLARY COSTS SHOULD BE LEVIED ON THE ASSESSEE. 10. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDER SUB MITTED THAT HE HAS NO OBJECTION IF A TOKEN COST IS LEVIED ON THE ASSESSEE. HOWEVER, CONSIDERING THE AGE OF THE ASSESSEE WHO IS ABOU T 85 YEARS NOW, A LENIENT VIEW SHOULD BE TAKEN. 11. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND T HE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. IT IS AN ADMITTED FACT THAT THE ASSESSEE, DESPITE BEING GIVEN REPEATED OPPORTUNITIES, DID N OT BOTHER TO FILE THE REQUISITE DETAILS EITHER BEFORE THE AO OR BEFORE THE CIT(A). ALTHOUGH AN OPPORTUNITY WAS GRANTED BY THE CIT(A) DURING REMAND PROCEEDINGS, HOWEVER, THE ASSESSEE DID NOT AVAIL OF THAT O PPORTUNITY ALSO BEFORE THE AO. SIMILARLY DESPITE BEING GIVEN OPPORTUNIT IES BY THE CIT(A) THE ASSESSEE DID NOT FILE HIS COUNTER COMMENTS TO THE REMAND REPORT. HOWEVER, AT THE SAME TIME, WHILE THE AO H AS MADE 5 ITA NO.1669/PN/2011 ADDITION OF THE DEPOSITS IN THE SAVINGS BANK ACCOUNT HE H AS NOT CONSIDERED THE VARIOUS CASH WITHDRAWALS FROM THE SAID SA VINGS BANK ACCOUNT IN ABSENCE OF ANY REPLY FROM THE ASSESSE E. WHAT IS THE NATURE OF BUSINESS OF THE ASSESSEE IS ALSO NOT COMING OUT FROM THE ORDERS OF THE AUTHORITIES BELOW. FURTHER, THE LOAN CO NFIRMATION CERTIFICATES FROM 11 PERSONS ARE ALSO NOT CONSIDERED AS G ENUINE DUE TO NON COMPLIANCE BY THE ASSESSEE. THUS, IT IS A CASE OF GROSS NEGLIGENCE ON THE PART OF THE ASSESSEE. HOWEVER, CONSID ERING THE TOTALITY OF THE FACTS OF THE CASE AND KEEPING IN MIND THE A GE OF THE ASSESSEE, WE, IN THE INTEREST OF JUSTICE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE IS SUE AFRESH AFTER GIVING ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUB STANTIATE HIS CASE. THE AO SHALL DECIDE THE ISSUE AS PER FACT AND LAW A ND AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. A T THE SAME TIME, BECAUSE OF THE INDIFFERENT NATURE OF THE ASSESSEE SHO WING SCANT REGARD TO THE STATUTORY NOTICES, WE LEVY COST OF RS.2,000/- (RUPEES TWO THOUSAND ONLY) ON THE ASSESSEE WHICH SHOULD BE DEPOSITED ON OR BEFORE 31-12-2015. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLO WED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSE LF, I.E. ON 16-11-2015. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; # DATED : 16 TH NOVEMBER, 2015. LRH'K 6 ITA NO.1669/PN/2011 ' (!* + / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. CIT ( A ) CENTRAL, PUNE 4. 5. 6. CIT CENTRAL, PUNE ' *, *, IQ.KS / DR, ITAT, A PUNE; / GUARD FILE. / BY ORDER , ' //TRUE COPY// / * / SR. PRIVATE SECRETARY *, IQ.KS / ITAT, PUNE