Bikash Kumar Agarwal, Angul V. CIT, Bhubaneswar

ITA 172/CTK/2014

• Counselvise Citation: 17222114 RSA 2014
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K AJAY KUMAR
• Assessee Lawyers: P K MISHRA
• Keywords: Difference of opinion; Change of opinion
• Section: 263

Judgement Text

I.T.A. NO. 172 / CTK ./20 1 4 A SSESSMENT YEAR: 20 0 9 - 20 1 0 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI S .V. MEHROTRA (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 1 7 2 / CTK / 20 1 4 ASSESSMENT YEAR : 20 0 9 - 20 1 0 BIKASH KUMAR AGARWAL,....... .... ............ .... .. .APP ELL ANT PROP. M/S. GANAPATI AHARWAL , HATATOTA, TALCHER , DIST. ANGUL, ODISHA - 759 0 13 [PAN : A EQPA 7533 J ] - VS. - COMMISSIONER OF INCOME TAX, ............................ RESPONDENT BHUBANESWAR, RAJASWAR VIHAR, 3 RD FLOOR, BHUBANESWAR, ODISHA APPEARANCES BY: SHRI P.K. MISHRA, A.R., FOR THE ASSESSEE SHRI K. AJAY KUMAR, CIT, D.R, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : OCTOBER 20 , 2 01 4 DATE OF PRONOUNCING THE ORDER : OCTOBER 22 , 201 4 O R D E R PER GEORGE MATHAN : TH IS IS AN APPEAL FILED BY THE ASSESSEE SHRI B IKASH KUMAR AGARWAL AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX , B HUBANESWAR PASSED UNDER SECTION 263 IN APPEAL MEMO NO. CIT/BBSR/ JUDL./ 263/ 1 6/2013 - 14/ 9994 - 96 DATED 06/25. 0 2 .20 1 4 FOR THE ASSESSMENT YEAR 20 0 9 - 1 0 . 2 . SHRI P.K. MISHRA, A.R., REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI K. AJAY KUMAR, CIT, D.R, REPRESENTED ON BEHALF OF THE REVENUE . I.T.A. NO. 172 / CTK ./20 1 4 A SSESSMENT YEAR: 20 0 9 - 20 1 0 PAGE 2 OF 3 3. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. AR THAT THE ORIGINAL ASSESSMENT ORDER HAD BEEN PASSED O N 20.12.201 1 AND THIS ASSESSMENT ORDER WAS THE SUBJECT MATTER OF THE REVISION UNDER SECTION 263. IT WAS THE SUBMISSION THAT THE LD. CIT MENTIONS THAT THE BANK ACCOUNT IN ICICI BANK WHICH WAS CREDITED WITH AN AMOUNT OF RS.37.94 LAKHS HAD NOT BEEN EXAMINED I N RESPECT OF THE EXACT NATURE OF THE RECEIPT. IT WAS THE SUBMISSION THAT THE LD. CIT HAD CONSEQUENTLY HELD THAT THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IT WAS THE SUBMISSION THAT THIS BANK ACCOUNT WAS THE SUBJECT MATT ER OF SCRUTINY ASSESSMENT AND THE ASSESSING OFFICER HAD VERIFIED THE DETAILS AND THEN HAD HELD THAT 10% OF THE GROSS RECEIPTS WERE LIABLE TO BE TREATED AS INCOME OF THE ASSESSEE. IT WAS THE SUBMISSION THAT ALL THE DETAILS HAVING BEEN EXAMINED BY THE ASSESS ING OFFICER , T HE REVISION BY THE LD. CIT FOR RE - EXAMINATION WAS ONLY AS A CHANGE OF OPINION, WHICH WAS NOT PERMISSIBLE IN 263 PROCEEDINGS. 4 . IN REPLY, LD. CIT(D.R.) VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT. 5 . WE HAVE CONSIDERED THE RIVAL SUBMISSION S. A PERUSAL OF THE ORDER OF THE LD. CIT SHOWS THAT THE LD. CIT IS OF THE VIEW THAT 10% ESTIMATION AS THE ASSESSEES INCOME OF THE DEPOSITS IN THE ICICI BANK ACCOUNT WAS ALSO NOT ADEQUATE AND THAT THE ASSESSING OFFICER WAS TO EXAMINE THE EXACT NATURE OF TH E RECEIPT. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THE SAID BANK ACCOUNT WAS THE SUBJECT MATTER OF THE SCRUTINY ASSESSMENT AND LD. AR HAD IN COMPLIANCE SUBMITTED THAT THE AMOUNTS/ DEPOSITS RELATE TO THE TRANSACTIONS OF BUSINESS BUT WAS NOT INCLUDED IN THE GROSS RECEIPTS SHOWN BY THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE ASSESSING OFFICER HAD TREATED 10% OF THE SAID DEPOSITS AS INCOME OF THE ASSESSEE. THIS ISSUE HAVING BEEN ALREADY EXAMINED BY THE ASSESSING OFFICER, WE ARE OF THE VIEW THAT THE DIRECT ION OF THE LD. CIT TO RE - EXAMINE THE SAME IS ONLY A CHANGE OF OPINION, WHICH IS NOT PERMISSIBLE UNDER SECTION 263 OF THE ACT. CONSEQUENTLY THE ORDER PASSED BY THE LD. CIT UNDER SECTION 263 STANDS QUASHED. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND OCTOBER , 2014. SD/ - SD/ - S .V. MEHROTRA GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 22 ND D AY OF OCTO BER , 201 4 I.T.A. NO. 172 / CTK ./20 1 4 A SSESSMENT YEAR: 20 0 9 - 20 1 0 PAGE 3 OF 3 COPIES TO : (1) THE A SSESSEE (2) THE DEPARTMENT (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL CUTTACK B ENCH, CUTTACK LAHA/SR. P.S.