Pallabi Prasad, Cuttack V. ITO, Ward-2(3), Cuttack

ITA 167/CTK/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7229 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 27-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: SLIDHANT DWIVEDI
• Keywords: Principle of natural justice; Reasonable cause; Corroborative evidences
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 167 /CTK/2016 ASSESSMENT YEAR : 2011 - 12 PALLABI PRASAD, BEPARI SAHI, BALLI BHAGAT ROAD, BUXI BAZAR, CUTTACK VS. ITO, WARD 2(3), CUTTACK PAN/GIR NO. AMOPP 7721 M (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI SLIDHANT DWIVEDI, AR REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 23 /01/ 2017 DATE OF PRONOUNCEMENT : 23 /01/ 2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 23.12.2015 , FOR THE ASSESSMENT YEAR 2011 - 12 . 2. THE ASSESSE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT, THE ORDERS OF THE FORUMS BELOW ARE ILLEGAL, ARBITRARY AND EXCESSIVE EXERCISE OF JURISDICTION A S WELL 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 PROVIDING SUFFICIENT OPPORTUNITIES TO ADDUCE THE EVIDENCES AND WITHOUT ISSUING ANY SHOW CAUSE NOTICE/DRAFT ASSESSMENT ORDER HAS COMPLETED THE ASSESSMENT U/S .144 BY MAKING THE ADDITION OF THE ENTIRE CASH DEPOSITS IN THE BANK ACCOUNT BY NEITHER DOING ANY ENQUIRY AT HIS END NOR 2 ITA NO. 167/CTK/2016 ASSESSMENT YEAR :2011 - 12 PUTTING ANY ADVERSE MATERIAL IN THE RECORD, WHICH IS MANDATORY PROCEDURE FOR COMPLETION OF THE ASSESSMENT AND AS SUCH THE ORDER IS LIABL E TO BE QUASHED BEING VIOLATION OF STATUTORY PROCEDURE AND PRINCIPLE OF NATURAL JUSTICE. 3. FOR THAT, THE LEARNED CIT(APPEAL) WAS ERRED IN CONFIRMING THE ADDITION EVEN THOUGH ALL THE EVIDENCES ALONG WITH EXHAUSTIVE WRITTEN NOTES OF SUBMISSION FILED AND REQ UEST WAS MADE TO SEEK A REMAND REPORT FROM THE LEARNED AO BUT THE LEARNED CIT(APPEAL) IN A PRE - MIND - SET HAS DISPOSED OF THE APPEAL FOR SAKE OF DISPOSAL BY CONFIRMING THE ADDITION IN A MECHANICAL MANNER WITHOUT MAKING ANY ENQUIRY AT HER END OR SEEKING ANY R EMAND REPORT FROM THE LEARNED AO AND AS SUCH BOTH THE ORDERS OF THE FORUMS BELOW ARE AGAINST THE PROVISIONS OF THE STATUTE AND ARE LIABLE TO BE QUASHED. 4. FOR THAT, THE LEARNED CIT(APPEAL) WAS GROSSLY MISCONCEIVED IN NOT ACCEPTING THE REASONS OF NON - PROD UCTION OF THE BOOKS OF ACCOUNTS ALONG WITH SUPPORTING EVIDENCES OF CASH DEPOSIT IN THE BANK ACCOUNT BEFORE THE ASSESSING OFFICER, WHEREAS THE SAID APPELLATE AUTHORITY HAS ACCEPTED THE SAME REASON OF NONCOMPLIANCE WHILE ADJUDICATING THE APPEAL AGAINST THE O RDER OF PENALTY U/S.271 (1) (B) OF THE ACT, WHICH WAS CONTRARY TO LAW AND AS SUCH THE ORDERS OF THE FORUM BELOW ARE LIABLE TO BE QUASHED/SET - A - SIDE. 5. FOR THAT, THE ADDITION OF RS.43,92,500/ - BY THE LEARNED AO U/S.69A OF THE ACT I.E. THE ENTIRE CASH DEPO SITS IN 3 NOS OF BANK ACCOUNT MAINTAINED BY THE APPELLANT SINCE THE LEARNED ASSESSING OFFICER HAS MADE THE ADDITION U/S 144 WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE EVIDENCES, WITHOUT BRINGING ANY COGENT MATERIAL EVIDENCES IN TO F OLD OF ASSESSMENT THROUGH ENQUIRY REGARDING THE SOURCE OF SUCH CASH DEPOSIT. THE LEARNED CIT(APPEAL) IN THE SIMILAR MANNER ALSO HAS CONFIRMED THE SAID ADDITION MECHANICALLY WITHOUT VERIFYING THE EVIDENCES PRODUCED REGARDING DETAILED SOURCE OF CASH DEPOSIT IN COURSE OF APPELLATE PROCEEDING AND WITHOUT SEEKING REMAND REPORT FROM THE LEARNED AO AND HENCE, THE ADDITION MAY KINDLY BE DELETED FOR THE INTEREST OF JUSTICE. 6. FOR THAT, THE ADDITION OF RS.1,13,535/ - ON ACCOUNT OF INTEREST IN FD IS ARBITRARY AND NON - APPLICATION OF MIND, SINCE THE LEARNED ASSESSING OFFICER WHILE MAKING ADDITION ON ACCOUNT OF INTEREST RECEIVED DURING THE YEAR HAS NOT ALLOWED SETUP OF THE INTEREST PAID TO THE BANK ON THE LOAN DURING THE YEAR, WHICH IS LIABLE TO BE SETUP AS PER THE SETTL E LAW OF THE LAND AND AS SUCH LIABLE TO BE ALLOWED IN THE INTEREST OF JUSTICE. 3. AT THE OUTSET, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSMENT HAS BEEN MADE BY THE ASSESSING OFFICER U/S.144 OF THE ACT ON 31.3.2014 AS THE ASSESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER AND FILED EVIDENCE IN SUPPORT OF THE RETURN OF INCOME FILED FOR ASSESSMENT YEAR 2011 - 12. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT SHE WAS PREGNANT AND WAS ADVISED 3 ITA NO. 167/CTK/2016 ASSESSMENT YEAR :2011 - 12 BED REST BY THE DR. THE ASSESSEE HAS A LSO FILED A CERTIFICATE OF BIRTH DATED 3.7.2014 ISSUED BY GOVERNMENT OF ODISHA SHOWING THAT A FEMALE CHILD WAS BORN TO HER ON 15.12.2013. HE SUBMITTED THAT IT WILL BE OBSERVED FROM THE ASSESSMENT ORDER THAT THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSIN G OFFICER ON 31.3.2014 AND THE LAST DATE OF HEARING WAS ON 6.12.2013. THE CIT(A) DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE FOR NOT FILING DETAILS AND EVIDENCE S IN SUPPORT OF THE RETURN OF INCOME BEFORE THE ASSESSING OFFICER ON THE GROUND THAT SUCH AN EXPLANATION WAS NEVER MADE BEFORE THE ASSESSING OFFICER. HE PRAYED THAT MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE CIT(A) AFTER SYMPATHETICALLY CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE OF THE ASSESSEE AS SHE WAS PREVENT ED BY A REASONABLE CAUSE FOR NOT COMPLYING WITH THE NOTICE OF HEARING ISSUED BY THE ASSESSING OFFICER. IT WAS SUBMITTED THAT THE ASSESSEE IS HAVING ALL EVIDENCES AND EXPLANATIONS AND THE ASSESSEE HAS A VERY GOOD CASE IN HER FAVOUR WHICH THE ASSESSEE WILL BE ABLE TO PROVE BEFORE THE CIT(A) BY FILING NECESSARY EVIDENCES AND DETAILS AND HENCE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE APPEAL OF THE ASSESSEE AFRESH. 4. ON THE OTHER HAND, LD D.R. VEHEMENTLY OPPOSED THE S UBMISSION OF LD A.R. OF THE ASSESSEE. 4 ITA NO. 167/CTK/2016 ASSESSMENT YEAR :2011 - 12 5. I FIND FORCE IN THE SUBMISSION MADE BEFORE ME BY LD A.R.OF THE ASSESSEE. THE EVIDENCE S PRODUCED BEFORE ME SHOW THAT THE ASSESSEE WAS INCAPACITATED DUE TO HER PREGNANCY WHICH FACT IS PROVED BY FILING THE DOCTOR CER TIFICATE AS WELL AS THE CERTIFICATE OF BIRTH OF A CHILD TO HER BEFORE ME. I DO NOT AGREE WITH THE OBSERVATION OF THE CIT(A) THAT SUCH A PLEA WAS NOT RAISED BEFORE THE ASSESSING OFFICER FOR THE REASON THAT THE A SSESSEE COULD NOT APPEAR DUE TO HER ILLNESS B EFORE THE ASSESSING OFFICER AND HENCE, HAD NO OPPORTUNITY TO GIVE AN EXPLANATION BEFORE THE ASSESSING OFFICER. STILL FURTHER, I FIND THAT THE CIT(A) VIDE HIS ORDER DELETED 23.12.2015 HAS DELETED THE PENALTY OF RS.10,000/ - LEVIED U/S.271(1)(B) OF THE ACT BY OBSERVING THAT THE ASSESSEE WAS PREGNANT DURING THE ASSESSMENT PROCEEDINGS, WAS HAVING A LOT OF COMPLICATIONS AND DELIVERED A CHILD THROUGH THE PROCESS OF CAESARIAN ON5.12.2013. AFTER THAT THE DOCTOR S ADVISED HER TO TAKE BED REST FOR A LONG TIME AND THEREFORE, SHE COULD NOT ATTEND THE CASE TO THE SATISFACTION OF THE ASSESSING OFFICER. I AM OF THE CONSIDERED VIEW THAT IN THE INTEREST OF RENDERING SUBSTANTIAL JUSTICE TO THE ASSESSEE, THE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND MATTER SHOULD B E RESTORED BACK TO HIS FILE FOR ADJUDICATING THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO PRODUCE ALL DETAILS AND EVIDENCES BEFORE THE CIT(A) AS AND WHEN CALLED UPON TO DO SO. HENCE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 ITA NO. 167/CTK/2016 ASSESSMENT YEAR :2011 - 12 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCE D IN THE OPEN COURT ON 23 / 01/2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 23 /01 /2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : PALLABI PRASAD, BEPARI SAHI, BALLI BHAGAT ROAD, BUXI BAZAR, CUTTACK 2. THE RESPONDENT: ITO, WARD 2(3), CUTTACK 3. THE CIT(A) , CUTTACK 4. PR. CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//