Ashok Chiranjivlal Jaiswal, Aurangabad V. Income-tax Officer,

ITA 1773/PUN/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0925 (ITAT-PUNE)
• Duration Of Justice: 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 22-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMITRA BANERJI
• Assessee Lawyers: KEDAR JOSHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.1773/PN/2016 / ASSESSMENT YEAR : 2005-06 SHRI ASHOK CHIRANJIVLAL JAISWAL, H.NO.4-12-46, BAIJIPURA, AURANGABAD PAN : ABFPJ2351P . / APPELLANT V/S ITO, WARD - 2(2), AURANGABAD . / RESPONDENT / APPELLANT BY : SHRI KEDAR JOSHI / RESPONDENT BY : SMT. SUMITRA BANERJI / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER DATED 14-06-2016 OF THE CIT(A)-2, AURANGABAD RELATING T O ASSESSMENT YEAR 2005-06. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY TH E ASSESSEE THEY ALL RELATE TO THE ORDER OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS.3,58,400/-. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND WAS AN EMPLOYEE OF MAHARASHTRA STATE ROAD TRANSPO RT CORPORATION. IN THIS CASE, AIR INFORMATION WAS OBTAINED A CCORDING TO WHICH THE ASSESSEE HAS PURCHASED A FLAT AT AURANGABAD FOR A CONSIDERATION OF RS.10,31,000/- DURING F.Y. 2004-05 RELEVANT TO A.Y. 2005-06. A LETTER DATED 12-03-2012 WAS SERVED ON THE ASSESSEE TO / DATE OF HEARING :21.09.2016 / DATE OF PRONOUNCEMENT:21.09.2016 2 ITA NO.1773/PN/2016 EXPLAIN THE SOURCE OF ABOVE INVESTMENT. IT WAS STATED B Y THE ASSESSEE THAT HE HAS NOT FILED THE RETURN OF INCOME BUT SUBMITTED THE DETAILS OF SOURCE UTILIZED FOR THE PURCHASE OF THE ABOVE PROPERTY. SINCE NO RETURN WAS FILED THE AO ISSUED A NOTICE U/S.148. SUBSEQUENTLY NOT ICE U/S.142(1) WAS ALSO SERVED ON THE ASSESSEE. AFTER REPEAT ED REMINDERS THE ASSESSEE APPEARED BEFORE THE AO AND SUBMITTED THA T HE COULD NOT ATTEND THE PROCEEDINGS DUE TO HEART ATTACK. SO FAR AS THE SOURCE FOR INVESTMENT IN THE FLAT IS CONCERNED THE ASSESSEE EXPLAINE D THE SOURCES AS UNDER : SR. NO. SOURCE AMOUNT (RS.) 1. STATE BANK OF INDORE 6,00,000/ - 2. ST CO - OP BANK LTD. 83,850/ - 3. ST CO - OP BANK LTD. 80,000/ - 4. MCRTCECCS BANK LTD. (SHORT LOAN A/C.NO.455) 15,000/ - 5. GOLD LOAN 88,000/ - 6. UNSECURED LOAN FROM RELATIVES FROM SHANTILAL C. JAISWAL 75,000/ - 7. UNSECURED LOAN FROM RELATIVES FROM GYANCHAND MAHAJAN 50,000/ - 8. LOAN FROM MR. NITIN MODI 25,000/ - 9. OWN CONTRIBUTION 28,000/ - 4. THE AO ACCEPTED SOURCES MENTIONED AT SL.NOS. 1 TO 3 A ND 9 ABOVE. HOWEVER, HE DISALLOWED THE UNSECURED LOAN OF RS.1,50,0 00/- AS PER SOURCES MENTIONED AT SL.NOS. 6, 7 AND 8 FOR WANT OF P ROOF. SIMILARLY, IN ABSENCE OF ANY DETAILS HE DISALLOWED THE GOLD LOAN OF RS.88,000/- AND LOAN OF RS.15,000/- OBTAINED FROM MCRTCECCS BANK LTD. 5. IN APPEAL, THE LD.CIT(A) CONFIRMED THE ADDITION MADE BY T HE AO IN ABSENCE OF ANY APPEARANCE BEFORE HIM BY OBSERVING AS UNDER : 5. IN THIS CASE HEARINGS WERE FIXED ON 19/08/2015, 1 2/10/2015, 26/11/2015, 09/12/2015, 23/12/2015, 05/04/2016, 27/ 04/2016 AND ON 23/05/2016. ON 09/12/2015 ONE SHRI SUBHASH D.MAGA RE, ITP, ATTENDED BUT HE DID NOT SUBMIT HIS LA OR ANY WRITTEN SUBMISSIONS. ON HIS REQUEST THE CASE WAS ADJOURNED TO 23/12/2015. ON 05/0 4/2016 THE 3 ITA NO.1773/PN/2016 ASSESSEE HAD APPEARED AND HE DID NOT MAKE ANY SUBMISSION. ON HIS REQUEST THE CASE WAS ADJOURNED TO 27/04/2016. ON 27/04 /2016 ONE SHRI AMOL P.GODHA, CA, APPEARED AND HE SUBMITTED HIS LA. O N HIS REQUEST THE CASE WAS ADJOURNED FOR HEARING ON 23/05/2016. HOWEVER , NO ONE APPEARED ON THE APPOINTED DATE. IN FACT THERE HAS BE EN NO COMPLIANCE BY THE ASSESSEE TILL THE DATE OF PASSING OF THIS ORDER. THE A SSESSEE HAS NOT EVEN SOUGHT ANY ADJOURNMENT. UNDER THE CIRCUMSTANCES I T APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL AND THER EFORE I AM PASSING THE APPELLATE ORDER ON EX PARTE BASIS AFTER CO NSIDERING THE FACTS ON RECORD. 6. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT DESPITE SEV ERAL OPPORTUNITIES OF BEING HEARD GIVEN TO THE ASSESSEE, THE RE HAS BEEN NON- COMPLIANCE. THE ASSESSEE HAS MADE A SUBMISSION ON 30/03/20 12 WHICH IS IN PRE-ASSESSMENT STAGE WHEN A LETTER WAS ADDRESSED TO THE ASSESSEE TO EXPLAIN THE SOURCES OF INVESTMENT MADE IN THE HOUSE. TH EREAFTER THERE HAS BEEN NO COMPLIANCE BY THE ASSESSEE WHATSOEVER. IT IS THE DUTY OF THE ASSESSEE TO SHOW WITH COGENT PROOF THE SOURCES OF INVESTMEN T MADE IN A HOUSE PROPERTY AND IF CERTAIN AMOUNT IS NOT EXPLAINED , THE SAME IS LIABLE TO BE ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE AS UNE XPLAINED INVESTMENT. THE ASSESSEE HAS NOT PROVIDED ANY DETAILS I N RESPECT OF THE MODE AND MANNER OF PAYMENT MADE FOR THE PURCHASE OF HOUSE PROPERTY. HE HAS NOT PROVIDED ANY CONFIRMATION FOR THE UNSECURE D LOAN TAKEN FROM DIFFERENT INDIVIDUALS. SIMILARLY ONE LOAN HAS BEEN TA KEN AFTER THE PURCHASE OF PROPERTY AND HENCE COULD NOT BE UTILISED FOR THE PURPOSE OF MAKING THE PAYMENT FOR PURCHASE OF PROPERTY. APART FROM STATING THAT HE HAD TAKEN A GOLD LOAN OF RS.88,000/-, NO EVIDENCE FOR THE SAME WA S PROVIDED EITHER IN ASSESSMENT OR IN APPELLATE STAGES AND SIMILARLY UTILISATIO N OF THE LOAN TAKEN FROM MSRTCECCS BANK FOR THE PURPOSES OF MAKING INVESTMENT IN THE HOUSE PROPERTY WAS ALSO NOT SHOWN. UNDER THE CIRCUM STANCES I HOLD THAT THE ASSESSING OFFICER HAD CORRECTLY ADDED THE AFOR ESAID AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE AND THERE IS NO INFIRMITY I N THE ADDITION MADE IN ASSESSMENT. ALL THE GROUNDS OF APPEAL ARE DISMISSED. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DUE TO PROLONGED ILLNESS OF THE ASSESSEE DETAILS COULD NOT BE FURNIS HED BEFORE THE CIT(A). HE SUBMITTED THAT THE DETAILS RELATING TO GOLD LOAN OF RS.88,000/- AND LOAN OF RS.15,000/- OBTAINED FROM MCRTCECCS BANK LTD. ARE AVAILABLE WITH THE ASSESSEE. SO FAR AS THE UNSECURED LOAN FROM RELATIVES AND FRIENDS ARE CONCERNED, THE LD. COUN SEL FOR THE ASSESSEE SUBMITTED THAT AN AMOUNT OF RS.75,000/- WAS OB TAINED FROM THE ELDER BROTHER OF THE ASSESSEE WHO HAS EXPIRED ON 25-04-2005 FOR WHICH NO CONFIRMATION COULD BE OBTAINED. HOWEVER, HE WAS A 4 ITA NO.1773/PN/2016 GOVERNMENT SERVANT AT THE IRRIGATION DEPARTMENT OF ST ATE OF MAHARASHTRA AND WAS A REGULAR TAX PAYER. SIMILARLY, RS.50 ,000/- FROM SHRI GYANCHAND MAHAJAN WAS OBTAINED FOR WHICH THE ASSES SEE IS HAVING AN AFFIDAVIT FROM SHRI GYANCHAND MAHAJAN. SIMILARLY CONFIRMATION ALSO IS OBTAINED FROM MR. NITIN MODI FOR THE LOAN O F RS.25,000/-. HE SUBMITTED THAT GIVEN AN OPPORTUNITY THE ASSESSEE IS IN A POSITION TO EXPLAIN THE SOURCE OF THE LOANS BEFORE THE C IT(A) OR THE AO. HE ACCORDINGLY SUBMITTED THAT MATTER MAY BE SET A SIDE TO THE FILE OF THE AO OR THE CIT(A). 8. THE LD. DEPARTMENTAL REPRESENTATIVE WHILE SUPPORTING T HE ORDER OF THE CIT(A) SUBMITTED THAT SHE HAS NO OBJECTION IF THE M ATTER IS SET ASIDE TO THE FILE OF THE CIT(A). 9. AFTER CONSIDERING THE ARGUMENTS MADE BY BOTH THE SID ES, I FIND THE AO MADE DISALLOWANCE OF RS.3,58,400/- AS UNEXPLAINED INV ESTMENT U/S.69 OF THE I.T. ACT. SINCE THE ASSESSEE COULD NOT EXPLA IN THE SOURCE TO THIS EXTENT TOWARDS INVESTMENT IN FLAT. I FIND SINCE NOB ODY APPEARED BEFORE THE CIT(A) ON THE DATE OF HEARING HE UPHELD THE AD DITION MADE BY THE AO. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT DUE TO HEART ATTACK OF THE ASSESSEE HE COULD NOT GIVE THE DETAILS OF SOURCE TO THE AUTHORISED REPRESENTATIVE WHO REPRESENT ED BEFORE THE AO. SIMILARLY, THE REPRESENTATIVE WHO APPEARED BEFORE THE CIT(A) ALSO COULD NOT PRODUCE THOSE DETAILS ON THE DATE OF HEARING. IT IS ALSO THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY HE IS IN A POSITION TO EXPLAIN THE SOURCE OF THE LOAN OF RS.3,58,400/-. CONSIDERING THE TOTALITY OF THE FACTS OF THE C ASE AND IN THE INTEREST OF JUSTICE I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSES SEE 5 ITA NO.1773/PN/2016 TO SUBSTANTIATE HIS CASE. THE GROUNDS RAISED BY THE AS SESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEAR ING ITSELF, I.E. ON 21-09-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED :21 ST SEPTEMBER, 2016. '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , /// // $ % / TRUE COPY // // TRUE COPY // &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - 2 , AURANGABAD 4. THE CIT-2, AURANGABAD 5. $ %%* , * , SMC BENCH / DR, ITAT, SMC BENCH PUNE; 6. 2 / GUARD FILE.