A.C.I.T., Cir. 2, Gwalior V. Sh. Mahendra Kumar Jain, Gwalior

ITA 189/AGR/2012

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1845 (ITAT-AGRA)
• Duration Of Justice: 8 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 11-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL BAJPAI
• Keywords: Opportunity of being heard; Tangible material
• Section: 191

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER ITA NOS. 189, 190 & 191/AGR/2012 ASSESSMENT YEARS: 2007-08, 2008-09 & 2009-10 ACIT, CIRCLE - 2, GWALIOR. (APPELLANT) VS. SH. MAHENDRA KUMAR JAIN, OPP. BALAJI TRANSPORT CO., DAL BAZAR, LASHKAR, GWALIOR. PAN: ACGPJ2274B (RESPONDENT) ITA NOS. 161, 162 & 163/AGR/2012 ASSESSMENT YEARS: 2007-08, 2008-09 & 2009-10 SH. MAHENDRA KUMAR JAIN, OPP. BALAJI TRANSPORT CO., DAL BAZAR, LASHKAR, GWALIOR. (APPELLANT) VS. ACIT, CIRCLE - 2, GWALIOR. (RESPONDENT) A SSESSEE BY SH. RAJENDRA SHARMA, ADV. RESPONDENT BY SH. SUNIL BAJPAI, CIT/DR ORDER PER BENCH: ALL THESE CROSS APPEALS BY THE REVENUE AND THE AS SESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATED 23.02.2012 FOR A.YRS . 2007-08 AND 2008-09 DATE OF HEARING 08.03.2021 DATE OF PRONOUNCEMENT 09 .03.2021 ITA NOS. 189 TO 191 & 161 TO 163/AGRA/2012 2 AND THE ORDER DATED 24.02.2012 FOR A.Y. 2009-10 PAS SED BY LD. CIT(A), GWALIOR. 2. THE CORE QUESTION WHICH HAS BEEN ADDRESSED BY BO TH THE PARTIES DURING THE COURSE OF ARGUMENTS WAS THAT THE ASSESSING OFFI CER HAD ADDED THE ENTIRE RECEIPTS SHOWN IN THE SEIZED MATERIAL AS INCOME OF THE ASSESSEE IN ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. IT WAS POINTE D OUT BY THE LD. AR THAT IN THE SEIZED MATERIAL ITSELF, THE RECEIPT OF COMMISSI ON (DALALI) HAS BEEN MENTIONED AND THEREFORE, THE ASSESSING OFFICER WAS WRONG IN ADDING THE ENTIRE RECEIPTS AS INCOME OF THE ASSESSEE. IT WAS S UBMITTED THAT THE LD. CIT(A) HAD RIGHTLY DELETED THE SAID RECEIPTS AND HAS ONLY UPHELD THE COMMISSION RECEIVED BY THE ASSESSEE ON THE SAID RECEIPTS. OUR ATTENTION WAS DRAWN TO THE PAPER BOOK FILED ON 25.11.2016 AND VARIOUS ENTRIES MENTIONED THEREIN. 3. THE LD. CIT/DR HAS SUBMITTED THAT THE ABOVE SAID FACTS ARE REQUIRED TO BE VERIFIED AFTER CONFRONTING IT TO THE ASSESSEE BY THE ASSESSING OFFICER. THE BASIC ISSUE IS OF THE ADDITION OF THE RECEIPTS IN A LL THE ASSESSMENT YEARS AND ALL OTHER ISSUES ARE OF INNOCUOUS/INSIGNIFICANT. HOWEVE R, THE ASSESSING OFFICER NEEDS TO VERIFY ALL THE ENTRIES BY CONFRONTING TO T HE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE BEFORE US. IN THIS CASE A SEARCH WAS CARR IED OUT IN THE PREMISES OF THE ASSESSEE ON 12.05.2008 AND THE DOCUMENTS RELATING T O DALALI BUSINESS WERE ITA NOS. 189 TO 191 & 161 TO 163/AGRA/2012 3 IMPOUNDED BY THE REVENUE. BASED ON THE IMPOUNDED MA TERIAL, ADDITIONS WERE MADE. HOWEVER, AS NOTED HEREINABOVE, THE ASSESSEE W AS NOT CALLED UPON TO EXPLAIN VARIOUS ENTRIES INCLUDING THE ENTRIES OF RE CEIPTS OF COMMISSION ON THE SALE MADE BY THE ASSESSEE AS MENTIONED IN THE IMPOU NDED MATERIAL. HENCE, IT IS ESSENTIAL THAT THE ABOVE SAID ASPECT IS REQUIRED TO BE EXAMINED BY THE ASSESSING OFFICER AFTER CONFRONTING THE ASSESSEE TO THE IMPOUNDED MATERIAL AND FURTHER ASKING THE ASSESSEE TO EXPLAIN THE COMM ISSION EARNED BY THE ASSESSEE ON THE SALE OF FOOD GRAIN ITEMS. WE ARE OF THE OPINION THAT THE ONUS IS ON THE ASSESSEE TO PROVE THAT THE ENTRIES SHOWN IN THE IMPOUNDED MATERIAL WERE NOT RESULTED IN INCOME OF THE ASSESSEE BUT WAS THE RECEIPT OF SALE MADE BY THE ASSESSEE ON THE BASIS OF COMMISSION WHICH WA S LATER ON PAID BACK TO THE RIGHTFUL RECIPIENT OF THE AMOUNT. WE ARE ALSO O F THE OPINION THAT OTHER ADDITIONS MADE BY THE ASSESSING OFFICER ALSO REQUIR E TO BE MADE ON THE BASIS OF SOME TANGIBLE MATERIAL INCLUDING THE IMPOUNDED M ATERIAL. WE, THEREFORE, DEEM IT APPROPRIATE TO REMAND BACK ALL THE APPEALS FILED BY THE REVENUE AND THE ASSESSEE TO THE FILE OF ASSESSING OFFICER TO PA SS THE ORDERS DE NOVO AFTER MAKING PROPER VERIFICATION AND CONFRONTING ALL THE MATERIALS IMPOUNDED TO THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEE SHALL BE GI VEN REASONABLE OPPORTUNITY OF BEING HEARD. WE MAY POINT OUT THAT WE HAVE NOT D ECIDED THE LEGAL ITA NOS. 189 TO 191 & 161 TO 163/AGRA/2012 4 ARGUMENTS RAISED BY THE PARTIES, WHICH WILL BE DECI DED IN APPROPRIATE PROCEEDINGS, IF NECESSARY. 5. IN THE RESULT, ALL THE APPEALS FILED BY REVENUE AND ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09/03/2021. SD/- SD/- (DR. MITHA LAL MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS*