Shri Brijesh Kumar, Agra V. I.T.O.-2(2), Agra

ITA 183/AGR/2011

• Counselvise Citation: 18320314 RSA 2011
• Duration Of Justice: 2 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S D SHARMA
• Assessee Lawyers: BRIJESH KUMAR
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 143(3); 133(6); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NOS. 182 & 183/AGR/ 2011 ASSESSMENT YEARS 2006-2007 BRIJESH KUMAR VS. ITO 2(2), 347, PASCHIMPURI, AGRA. SIKANDRA, AGRA (PAN ANNPK 2930 K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI BRIJESH KUMAR, (ASSESSEE) REVENUE BY : SHRI S.D. SHARMA, JR. D.R. DATE OF HEARING : 07.08.2013 DATE OF PRONOUNCEMENT : 14.08.2013 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST DIFFERENT ORDERS OF LD.CIT(A)-I, AGRA, DATED 21.01.2011 FOR A.Y. 200 6-07. 2. EARLIER BOTH THE APPEALS OF THE ASSESSEE WERE DI SMISSED IN DEFAULT. THE ASSESSEE MOVED M.A. NOS. 11 & 12 /AGRA/2013 EXPLAIN ING THE REASON FOR NON-APPEARANCE ON THE DATE OF HEARING. EX-PARTE ASS ESSMENT ORDERS, THEREFORE, WERE RECALLED AND APPEALS WERE RESTORED. BOTH THE MISCELLANEOUS ITA NOS.182 /AGRA/2011 183/AGRA/2011, A.YS. 2006-07 2 APPLICATIONS OF THE ASSESSEE WERE ALLOWED AND ACCOR DINGLY THESE APPEALS WERE FIXED FOR HEARING AFRESH. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT IN ITA NO . 182/AGRA/2011, THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.1,75,000 /- UNDER SECTION 69 OF THE I.T. ACT BEING UNEXPLAINED INVESTMENT AS ADVANCE GI VEN TO M/S SHIEL AUTO, AGRA AND IN ITA NO. 183/AGRA/2011 THE ASSESSEE HAS CHALLENGED THE LEVY OF THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON T HE SAME ADDITION. 4. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SMENT UNDER SECTION 143(3) OF THE ACT WAS COMPLETED VIDE ORDER DATED 12 .11.2008 AND INCOME WAS ASSESSED AT RS.3,64,871/- AS AGAINST THE RETURN ED INCOME OF RS.1,04,671/-. IN THE ASSESSMENT ORDER, ADDITION OF RS.2,56,600/- WAS MADE UNDER SECTION 69 OF THE ACT AS UNEXPLAINED INVESTME NT FOR PAYMENT MADE TO M/S. SHIEL AUTO, AGRA IN CASH TO ESTABLISH THE DEAL ERSHIP BUSINESS OF MOTORCYCLE OF THE ASSESSEE. DURING THE APPELLATE PR OCEEDINGS, THE ASSESSEE SUBMITTED THAT RS.72,780/- WAS RECEIVED ON SALE OF STOCK OF HIS OLD BUSINESS OF GARMENTS AND BALANCE MONEY WAS TAKEN FROM HIS FA THER AND GRAND FATHER, BUT NO DETAILS OF MONEY AND CONFIRMATIONS WERE FILE D DURING THE ASSESSMENT PROCEEDINGS. 5. THE A.O. DID NOT ACCEPT THE CONTENTION OF THE AS SESSEE AND MADE ADDITION OF RS.2,56,600/-. THE ASSESSEE SUBMITTED B EFORE LD. CIT(A) THAT ADDITION IS UNJUSTIFIED AND RS.1,75,000/- WAS TAKEN AS ADVANCE FROM THE ITA NOS.182 /AGRA/2011 183/AGRA/2011, A.YS. 2006-07 3 PERSONS WHO TOOK MOTORCYCLE FOR PURCHASE FROM THE A SSESSEE AND RS.72,780/-WAS RECEIVED ON SALE OF OLD STOCK BY THE ASSESSEE AND BALANCE OF RS.8,820/- HAS BEEN WRONGLY ADDED TO THE INCOME. 6. THE LD. CIT(A) ON EXAMINATION OF THE RECORD FOUN D THAT THE SOURCE OF RS.1,75,000/-, WHICH IS EXPLAINED NOW AT APPELLATE STAGE THAT THIS AMOUNT WAS TAKEN FROM SEVEN CUSTOMERS AS ADVANCE OF RS.25, 000/- EACH, WAS NEVER BROUGHT BEFORE THE A.O. AT THE ASSESSMENT PROCEEDIN G. THE A.O. ISSUED NOTICE TO THE ASSESSEE INFORMING HIM THAT ON MAKING ENQUIRY UNDER SECTION 133(6) OF THE ACT FROM SHIEL AUTOS, AGRA, IT WAS FO UND THAT THE ASSESSEE MADE DEPOSIT OF RS.2,50,000/- IN CASH THROUGH TEN E NTRIES AND RS.6,600/- WAS LATER ON DEPOSITED. 7. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF THE INVESTMENT OF RS.2,56,600/- DEPOSITED WITH SHIEL AUTO AGRA IN CAS H IN ADVANCE TO START THE BUSINESS OF BAJAJ TWO WHEELER VEHICLES. THE ASSESSE E IN RESPONSE TO THE SHOW CAUSE NOTICE, SUBMITTED THAT OLD STOCK OF OLD BUSINESS WAS SOLD AND PAYMENT WAS MADE, FURTHER AMOUNT WAS TAKEN FROM FAT HER AND GRAND FATHER. THE LD. CIT(A), THEREFORE, FOUND THAT ASSESSEE NEVE R STATED THAT RS.1,75,000/- WAS ARRANGED BY THE ASSESSEE AFTER TAKING ADVANCE F ROM SEVEN CUSTOMERS. THE ASSESSEE HAS, THEREFORE, BROUGHT FRESH FACT AT THE APPELLATE STAGE, WHICH COULD NOT BE ADMITTED UNDER RULE 46A OF THE I.T. RU LES. NO CASE WAS EXPLAINED FOR TAKING A DIFFERENT VIEW BECAUSE IT WA S A FRESH FACT. THE LD. ITA NOS.182 /AGRA/2011 183/AGRA/2011, A.YS. 2006-07 4 CIT(A) HOWEVER, ACCEPTED THE SOURCE OF RS.72,780/-. AS REGARDS, SOURCE OF RS.1,75,000/- AN AMOUNT RECEIVED FROM THE SEVEN CUS TOMERS IN ADVANCE, THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED, BECAU SE IT WAS NOT CORRECT AND WAS NEVER MADE AT THE ASSESSMENT STAGE AND WAS ALSO NOT SUPPORTED BY ANY EVIDENCE. THE EXPLANATION OF THE ASSESSEE WAS FOUND INCORRECT BECAUSE THE ASSESSEE MADE DEPOSIT OF RS.2,50,000/- IN TEN ENTRI ES IN CASH OF RS.25,000/- EACH. THE REPLY OF THE ASSESSEE WAS NOT FOUND CONVI NCING, WHICH WAS NOT DISCLOSED AT THE ASSESSMENT STAGE. THE FRESH FACT B ROUGHT BY THE ASSESSEE AT THE APPELLATE STAGE WAS REJECTED UNDER RULE 46A OF THE I.T. RULE AND ADDITION WAS CONFIRMED, BEING THE EXPLANATION OF THE ASSESSE E WAS FOUND AFTER THOUGHT. THE LD. CIT(A) ON THE SAME REASONING ON FA CT THAT AT THE PENALTY STAGE THE ASSESSEE DID NOT FILE ANY EXPLANATION BEF ORE A.O., CONFIRMED THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT ON THE SAME AMOUNT OF RS.1,75,000/-. LD. CIT(A) HELD THAT PENALTY IS L EVIABLE UNDER SECTION 271(1)(C) WITH EXPLANATION 1 FOR CONCEALING THE PAR TICULARS OF INCOME. 8. THE ASSESSEE IS IN APPEALS ABOVE. THE ASSESSEE W AS GIVE OPPORTUNITY OF BEING HEARD AT THE APPELLATE STAGE. INITIALLY, H E SOUGHT A WEEKS TIME BECAUSE HIS COUNSEL IS OUT OF STATION AGAIN ON 19.0 7.2013, THE ASSESSEE SOUGHT ADJOURNMENT ON DIFFERENT REASON THAT ASSESSE E HAS APPLIED FOR CERTIFIED COPIES. THE REQUEST OF THE ASSESSEE WAS R EJECTED. HOWEVER, IN THE INTEREST OF JUSTICE, APPEALS WERE ADJOURNED TO 07.0 8.2013. AGAIN ON ITA NOS.182 /AGRA/2011 183/AGRA/2011, A.YS. 2006-07 5 07.08.2013, THE COUNSEL FOR THE ASSESSEE DID NOT AP PEAR AND THE ASSESSEE AGAIN SOUGHT ADJOURNMENT, WHICH WAS REJECTED FINDIN G IT TO BE UNNECESSARY. 9. LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITI ES BELOW AND SUBMITTED THAT AT THE ASSESSMENT STAGE, THE ASSESSEE WAS AFFO RDED SEVERAL OPPORTUNITIES TO PROVE THE SOURCE OF INVESTMENT OF RS.1,75,000/-, BUT THE ASSESSEE DID NOT PROVE THE SAME AND NO EVIDENCE WAS FILED. THE ASSES SEE DELAYED THE ASSESSMENT PROCEEDINGS ON ONE OR OTHER REASON. LD. D.R. SUBMITTED THAT ASSESSEE HAS TAKEN A CONTRARY PLEA BEFORE LD. CIT(A ), WHICH WAS NOT ADMITTED UNDER RULE 46A OF THE I.T. RULE AND NO GRO UND UNDER RULE 46A OF THE ACT HAS BEEN RAISED IN THE GROUND OF APPEAL, TH EREFORE, APPEALS OF THE ASSESSEE HAVE NO MERIT AND SAME MAY BE DISMISSED. 10. WE HAVE CONSIDERED THE FACTS OF THE CASE, PERUS ED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERED THE SUBMISSION OF THE LD. D.R. AND DO NOT FIND ANY MERIT IN BOTH THE APPEALS OF THE ASSESSEE. THE ASSESSEE WAS REQUIRED TO EXPLAIN SOURCE OF RS.1,75,000/- DEPOSITED WITH S HIEL AUTO AGRA. THE ASSESSEE TOOK A CONTRARY PLEA BEFORE LD. CIT(A) THA T ADVANCE OF RS.1,75,000/- WAS RECEIVED FROM THE CUSTOMERS. SAID PLEA WAS NOT TAKEN AT THE ASSESSMENT STAGE. THEREFORE, IT WAS RIGHTLY HEL D TO BE AFTER THOUGHT STORY CREATED BY THE ASSESSEE. WHATEVER MATERIAL WAS FURN ISHED BEFORE LD. CIT(A) REGARDING FRESH STORY CREATED BY THE ASSESSEE, THE SAME WAS NOT ADMITTED BY THE LD. CIT(A) UNDER RULE 46A. THE ASSESSEE DID NOT RAISE ANY GROUND TO ITA NOS.182 /AGRA/2011 183/AGRA/2011, A.YS. 2006-07 6 CHALLENGE THESE FINDINGS OF LD. CIT(A) REJECTING TH E FRESH EVIDENCE/FRESH FACTS UNDER RULE 46A OF THE ACT. MOREOVER, WHEN ASS ESSEE HAS TAKEN A CONTRARY PLEA BEFORE LD. CIT(A) THEREFORE, FACTS WO ULD JUSTIFY REJECTION OF THE SUBMISSION OF THE ASSESSEE. THE ASSESSEE WAS AFFORD ED SEVERAL OPPORTUNITIES AT THE ASSESSMENT STAGE, BUT ASSESSEE DID NOT PROVE THE SOURCE OF INVESTMENT OF RS.1,75,000/-. IN THE ABSENCE OF ANY EVIDENCE OR MATERIAL IN SUPPORT OF THE ABOVE GROUND, WE DO NOT FIND IT TO BE PROPER TO INT ERFERE WITH THE ORDER OF THE AUTHORITIES BELOW IN MAKING ADDITION OF RS.1,75,000 /-. THE ADDITION IS, THEREFORE, CONFIRMED AND WE DISMISS THE APPEAL OF T HE ASSESSEE IN ITA NO. 182/AGRA/2011. 11. AS REGARDS, LEVY OF PENALTY ON THE ADDITION OF RS,1,75,000/-, IT IS CLEAR THAT ASSESSEE HAS FAILED TO EXPLAIN SOURCE OF THE A BOVE INVESTMENT AND EXPLANATION OF THE ASSESSEE WAS FOUND AFTER THOUGHT AND FALSE. THE ASSESSEE DID NOT FILE ANY EXPLANATION BEFORE A.O. IN RESPONS E TO THE SHOW CAUSE NOTICE ISSUED FOR LEVY OF PENALTY. THEREFORE, EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT IS CLEARLY ATTRACTED IN THE CASE OF THE ASS ESSEE FOR LEVY OF PENALTY. WE, THEREFORE, DO NOT FIND ANY JUSTIFICATION TO INT ERFERE WITH THE PENALTY IMPOSED AGAINST THE ASSESSEE UNDER SECTION 271(1)(C ) OF THE I.T. ACT. ITA NO.183/AGRA/2011 IS ALSO DISMISSED. ITA NOS.182 /AGRA/2011 183/AGRA/2011, A.YS. 2006-07 7 12. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT.) SD/- SD/- (A.L. GEHLOT) (BHAV NESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER AMIT/ COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY