ANIL KUMAR LALWANI, Jaipur V. JCIT (OSD), Jaipur

ITA 18/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5098 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 01-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DR DHK
• Keywords: Opportunity of being heard; Assessment record

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 18 TO 20/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05, 2005-06 & 2009-10 SHRI ANIL KUMAR LALWANI D-103, NIRMAN NAGAR, GAUTAM MARG, AJMER ROAD, JAIPUR CUKE VS. THE JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAPPL 2849 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 21 TO 23/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05, 2005-06 & 2009-10 SHRI ASHOK KUMAR LALWANI D-103, NIRMAN NAGAR, GAUTAM MARG, AJMER ROAD, JAIPUR CUKE VS. THE JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABFPL 8757 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 24 TO 26/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05, 2005-06 & 2009-10 SMT. UMRAW DEVI LALWANI D-103, NIRMAN NAGAR, GAUTAM MARG, AJMER ROAD, JAIPUR CUKE VS. THE JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEEPK 4940 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA NO. 18/JP/2016 SHRI ANIL KUMAR LALWANI VS. JCIT (OSD), CENTRAL CIR CLE- 3,JAIPUR . 2 VK;DJ VIHY LA-@ ITA NO. 27 TO 29/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05, 2005-06 & 2009-10 LATE SHRI SHIKAR CHAND LALWANI L/H SMT. UMRAW DEVI LALWANI D-103, NIRMAN NAGAR, GAUTAM MARG, AJMER ROAD, JAIPUR CUKE VS. THE JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AATPL 2150 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI S.L. JAIN, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA, ADDL CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22/08/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 15 /09/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THESE APPEALS HAVE BEEN FILED BY THE ABOVE MENTIONE D ASSESSEE'S AGAINST SEPARATE ORDERS OF THE LD. CIT(A), ALWAR DATED 27-10-2015 FOR THE ASSESSMENT YEARS 2004-05, 2005-06 AND 2009-10 R ESPECTIVELY. 2.1 IT IS NOTED THAT ALL THE ASSESSEE'S HAVE RAISED SIMILAR GROUNDS OF APPEAL IN THEIR RESPECTIVE APPEAL. ALL THE APPEALS WERE HEARD TOGETHER. IN THESE APPEALS, COMMON FACTS HAVE GIVEN RISE TO ALMO ST IDENTICAL ISSUES. HOWEVER, FOR THE SAKE OF CONVENIENCE AND BREVITY, THE GROUNDS OF APPEAL AS RAISED IN THE ASSESSMENT YEAR 2004-05 IN THE CAS E OF SHRI ANIL KUMAR LALWANI ARE REPRODUCED AS UNDER:- ITA NO. 18/JP/2016 SHRI ANIL KUMAR LALWANI VS. JCIT (OSD), CENTRAL CIR CLE- 3,JAIPUR . 3 1. THE LD. CIT(A) HAS ERRED IN PASSING THE APPELLATE ORDER EX-PARTE WITHOUT CONSIDERING THE FA CTS THAT MAIN PERSON STOOD EXPIRED AND THE ELDEST SON SHRI ASHOK KUMAR LALWANI WAS BEING TREATED FOR DEPRESSION AND THE FAMILY WAS HAVING IN FINANCIAL DISTRESS 2. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE WRITTEN SUBMISSION THAT APPELLANT HAS NOT BEEN ALLO WED INSPECTION OF ASSESSMENT RECORD TO THE PRESENT HIS CASE BEFORE THE LD. CIT(A). 3. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE WRITTEN SUBMISSION ON MERIT AND HAS NOT DECIDED THA T ASSESSMENT ORDER WERE INVALID. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSMENT ORDER IS INVALID IN THE EYES OF LAWS AS AFFIXTURES OF SERVICE OF NOTICE DATED 21-11-2011 AND 11-11-2011 A RE INVALID AND CONSEQUENTLY THE ASSESSMENT ORDER IS INVALID. 5. THE LD. CIT(A) HAS ERRED IN NOT UPHOLDING THAT ASSESSMENT ORDERS ARE INVALID AS THERE ARE VIOLATIO NS OF PROVISO TO SECTION 129. 6. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ESTIMA TE OF INCOME WITHOUT CONSIDERING OUR SUBMISSIONS AND NOT RECORDING A FINDING THAT PURCHASE CANNOT BE A PART OF TURNOVER AND NET COMMISSION ON SALES CAN BE ESTIMATED. 7. THE LD. CIT(A) HAS ERRED IN ESTIMATING THE INC OME FROR A.Y. 2009-10 WHILE THE BUSINESS OF PROVIDING OF ENTRY WA S DISCONTINUED AFTER SURVEY IN MARCH, 2008. 2.2 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT ASSESSMENT MADE BY THE AO U/S 148/144(1) OF THE I.T . ACT, 1961 IS EX- PARTE ASSESSMENT AND THE ASSESSEE WAS DEPRIVED OF A VAILING OF ANY ITA NO. 18/JP/2016 SHRI ANIL KUMAR LALWANI VS. JCIT (OSD), CENTRAL CIR CLE- 3,JAIPUR . 4 OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. HEN CE, THE AO ASSESSED THE INCOME OF THE ASSESSEE AT RS. 1,75,000/-. THE L D. AR OF THE ASSESSEE FURTHER SUBMITTED THAT THE MAIN PERSON OF THE FAMIL Y SHRI SHIKHAR CHAND LALWANI, FATHER OF THE ASSESSEE, PASSED AWAY AND TH E ASSESSEE BEING ELDEST SON WAS UNDER TREATMENT OF DEPRESSION AND HE COULD NOT PROPERLY CONTEST THE CASE BECAUSE OF DEPRESSION AND THE LD. CIT(A) H AD NOT CONSIDERED THE WRITTEN SUBMISSION FILED BEFORE HIM. THE ASSESSEE W AS NOT ALLOWED TO INSPECT THE RECORD TO REPRESENT HIS CASE BEFORE THE LD. CIT(A). HOWEVER, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER:- 4.8 AFTER CAREFULLY EXAMINATION OF THE FACTS AND OTHER MATERIAL AVAILABLE ON RECORD, I FIND THAT MEM BERS OF THE LALWANI FAMILY INCLUDING THE APPELLANT WERE FILING REGULAR RETURN OF INCOME SHOWING BUSINESS OF TRADING OF PRE CIOUS AND SEMI-PRECIOUS GEMS, STONES ETC. DURING THE COURSE O F SURVEY OPERATION THE ACTUAL MODUS OPERANDI OF THE BUSINESS WAS FOUND TO BE OF ONLY AN ENTRY PROVIDER WHEREBY THE B ILLS OF SALE AND PURCHASE OF GEMS AND STONES WERE PROVIDED TO THE CUSTOMERS IN RETURN FOR A COMMISSION OF RS. 0.50 PE R 100. THE PAYMENTS RECEIVED BY CHEQUE WERE ROUTED THROUG H FEW FAMILY ENTITIES BEFORE RETURNING THE CASH BACK AFTE R DEDUCTING COMMISSION. THE APPELLANT HAS FAILED TO FURNISH ANY EVIDENCE BEFORE THE AO IN THE COURSE OF ASSESSMENT PROCEEDIN GS TO CONTROVERT THE FACTUAL MATRIX GATHERED IN THE COURS E OF SURVEY PROCEEDINGS. 4.9 I FIND THAT THERE IS NO DISPUTE WITH REGARD TO THE QUANTUM OF TURNOVER BEING WORKED OUT BY THE APPELL ANT AND TAKEN INTO CONSIDERATION BY THE AO. THE ONLY AREA O F DISPUTE ITA NO. 18/JP/2016 SHRI ANIL KUMAR LALWANI VS. JCIT (OSD), CENTRAL CIR CLE- 3,JAIPUR . 5 IS REGARDING THE DETERMINATION OF COMMISSION EARNED BY THE APPELLANT ON SUCH TURNOVER. THE APPELLANT HAS IN TH E COURSE OF APPELLATE PROCEEDINGS FAILED TO BRING ON RECORD ANY MATERIAL EVIDENCE TO CONTROVERT THE FINDINGS GIVEN BY THE AO. THEREFORE, IN THE ABSENCE OF ANY SUCH EVIDENCE, I CONFIRM THE ADDITIONS OF RS. 1,75,000/- IN A.Y. 200 4-05, OF RS. 1,75,000/- IN A.Y. 2005-06 AND OF RS. 2,00,000 /- IN A.Y. 2009-10 MADE BY THE AO ON THIS ACCOUNT. 2.3 THE LD. DR RELIED ON THE ORDER OF THE LOWER AUT HORITIES. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT ASSESSEE ALON GWITH OTHER FAMILY MEMBERS ARE KNOWN AS LALWANI GROUP. THE MAIN THRUST OF THE LD. AR OF THE ASSESSEE DURING THE COURSE OF HEARING WAS THAT THE ASSESSEE WAS NOT PROVIDED ADEQUATE OPPORTUNITY OF HEARING BY THE AO AND THE AO PASSED EX-PARTE ASSESSMENT ORDER U/S 148/144(1) OF THE I.T . ACT. THE LD. CIT(A) HAD CONFIRMED THE ACTION OF THE AO WITHOUT TAKING I NTO CONSIDERATIONS THE SUBMISSIONS OF THE ASSESSEE. THE ELDEST SON OF THE ASSESSEE SHRI ASHOK KUMAR LALWANI WAS UNDER TREATMENT OF DEPRESSION AS THE MAIN PERSON OF THE FAMILY I.E. HIS FATHER SHRI SHIKHAR CHAND LALWA NI, EXPIRED AND THE ASSESSEE WAS NOT ALLOWED TO INSPECT THE ASSESSMENT RECORD TO REPRESENT HIS CASE BEFORE THE LD. CIT(A). HENCE, IN THIS VIEW OF THE MATTER AND IN THE INTEREST OF JUSTICE, THE APPEALS OF THE ABOVE ASSES SEE'S ARE SET ASIDE AND RESTORED TO THE FILE OF THE AO TO DECIDE THEM AFRE SH BY PROVIDING ITA NO. 18/JP/2016 SHRI ANIL KUMAR LALWANI VS. JCIT (OSD), CENTRAL CIR CLE- 3,JAIPUR . 6 REASONABLE OPPORTUNITY OF BEING HEARD. THE LD. AR O F THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE AO DURING THE ASSESS MENT PROCEEDINGS AND PRESENT THE CASES TO DISPEL THE DOUBT. HENCE, THE A BOVE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 3.0 IN THE RESULT, THE APPEALS OF THE ABOVE ASSESSE ES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15/09/2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15 /09/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ANIL KUMAR LALWANI, SHRI ASHOK KUMAR LALWANI, SMT. UMRAW DEVI LALWANI AND LATE SHR I SHIKAR CHAND LALWANI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE JCIT (OSD), CENTRAL CIRCLE- 3, JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 18 TO 20/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR