Sh. Pratap Singh Samra, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 189/ASR/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 4407 (ITAT-AMRITSAR)
• Duration Of Justice: 5 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 11-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Additional evidence; Reason to believe
• Section: 147; 148; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 189/Asr/2017 Assessment Year: 2008-09 Sh. Partap Singh Samra, Ujjagar Nagar, Amritsar [PAN: AXDPS 4523L] Vs. Income Tax Officer, Ward 3(3), Amritsar (Appellant) (Respondent) Appellant by : Sh. None Respondent by: Sh. S. M. Surendranath, Sr. DR Date of Hearing: 23.03.2022 Date of Pronouncement: 19.04.2022 ORDER Per Anikesh Banerjee, JM: The instant appeal was filed against the order passed by the Ld. Commissioner of Income Tax (Appeals)-1, Amritsar [in brevity the CIT(A)], bearing Appeal No. 477/2015-16 dated 09.01.2017 u/s 250(6) of the Income Tax Act, 1961, in respect of Assessment Year 2008-09. 2. The assessee has raised the following grounds of appeal: “1. That the order under appeal is against law and facts of the case. 2 ITA No. 189/Asr/2017 Partap Singh Samra v. ITO 2. That on the facts and circumstances of the case the Ld. CIT(A) has erred in law in not accepting the submissions of the appellant that the assessment order passed by the Ld. AO is without jurisdiction in view of the judgment of this Hon’ble Tribunal in the case of Amrik Singh V/s ITO Ward-1, Kapurthala. 3. That the Ld. CIT(A) was under legal obligation to follow the Judgment of the Hon’ble Tribunal in the case of Amrik Singh V/s ITO Ward-1, Kapurthala as the assessment order passed by the Ld. AO is based upon reason to suspect rather than reason to believe. 4. That in addition and without prejudice to grounds No. 1 and 2 above, it is submitted that the Ld. CIT(A) has erred in law in calculating peak of both the banks as the source of credit entries in the bank accounts of the appellant were duly explained during the appellate proceedings. 5. That the Ld. CIT(A) has also erred in law in not accepting the submission of the appellant that the assessment proceedings could be raised only on the basis of which the assessment proceedings have been initiated and not on the other grounds. 6. Any other ground which may be urged and allowed at the time of arguments.” 3. Brief fact is that the addition was made for depositing cash in different banks and the reopening was made u/s 148 on the basis of the information from AIR. The Assessing Officer [in brevity the AO] took prior approval before issuance of notice. The addition was made on the basis of the depositing cash in different banks. The assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) considered the issue and the peak credit was taken. Accordingly the quantum of addition was reduced. 4. The ld. DR of the Revenue relied on the order of the ld. CIT(A) is reproduced as under: “8. I have gone through the grounds of appeal, submission & Assessment order. 3 ITA No. 189/Asr/2017 Partap Singh Samra v. ITO From the remand report it is clear that a valid notice under section 133(6) of the act was served upon the assessee and when no reply was given, the notice was issued under section 148. Once the reply is not given by the assessee the AO has reasons to believe that the income has escaped assessment. The case of Amrik Singh relied upon by the appellant is not applicable as in that case only an enquiry letter was issued, while in this case a valid notice under section 133(6) of the act was issued. Thus the ground of the appellant is dismissed. Further as regards jurisdiction of addition in cash deposits of Rs. 20 lacs in Bank of Baroda is concerned, the primary contention of the appellant is that the AO has exceeded in jurisdiction in adding such amount to the income of appellant as they were not part of the reasons for the reopening. Section 147 reads as under:- “If the[Assessing] Officer[has reason to believe] that any income chargeable to tax has escaped assessment for any assessment year, he may subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recomputed the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned” From the plain reading of the section 147 it is clear that the AO was well within the powers to assess the cash deposits deposited in the bank of Baroda. The Appellant has submitted an agreement to sell as additional evidence at the time of appeal. The same has been considered but it cannot be believed as the same is on a plain paper on which stamps have been affixed. Further the same is not registered and in all probability an after thought. Further the registration of the same was to be done on 25.01.2008 which has not been produced. Thus the additional evidence is an afterthought and being not reliable it is rejected. However the AO has erred in not calculating the peak of both the banks together, which comes at Rs. 18,76,000/- calculated as under:- Date Withdrawals Deposits Balance 12.05.2007 1,50,000/- 1,50,000/- 17.05.2007 50,000/- 2,00,000/- 4 ITA No. 189/Asr/2017 Partap Singh Samra v. ITO 13.06.2007 70,000/- 2,70,000/- 27.06.2007 10,000/- 2,80,000/- 05.11.2007 45,000/- 2,35,000/- 06.11.2007 9,26,000/- (6,91,000)/- 13.11.2007 2,00,000/- (4,91,000)/- 19.11.2007 6,10,000/- 1,19,000/- 05.12.2007 (B.O.B) 5,000/- 1,24,000/- 13.12.2007 (B.O.B) 20,00,000/- (18,76000) Thus, the addition is restricted to an amount of Rs.18,76,000/- and the appeal is partly allowed.” 5. No one appear from the end of the assessee. The matter is pending from long back. We are considering the documents available on records filed by the assessee. The assessee raised the point that the 148 was issued not on the basis of the reason to believe on the basis of the reason to suspect and also the assessee was ready to submit the copy of agreement as additional evidences before the ld. CIT(A) which was duly rejected by the ld. CIT(A). 6. In the matter the assessee should get a proper opportunity to submit his documents and also the reasons of reopening should be further considered by the ld. CIT(A). Accordingly, we are setting aside the matter to the ld. CIT(A) for further consideration. Accordingly, the matter is remanding back to the Ld CIT(A) for further adjudication. 5 ITA No. 189/Asr/2017 Partap Singh Samra v. ITO 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 19.04.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member Date: 19.04.2022 *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order