RAKESH KUMAR DUBEY, MIRZAPUR V. IT OFFICER WARD-III, MIRZAPUR

ITA 19/ALLD/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3881 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 16-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD (SMC) BENCH, ALLAHABAD (THROUGH VIRTUAL COURT) BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER I.T.A. NO.19/ALLD/2018 ASSESSMENT YEAR: 2009-10 SRI RAKESH KUMAR DUBEY, DEVPURA, PACHWAL, RAJPUR, MIRZAPUR [PAN: ASYPD2931R] VS INCOME TAX OFFICER, WARD-III(3), MIRZAPUR (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI PRAVEEN GODBOLE, ADVOCATE FOR REVENUE : SHRI A.K.SINGH, SR.DR DATE OF HEARING : 04-11-2020 DATE OF PRONOUNCEMENT : 05-11-2020 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 20-09-2017 OF THE COMMISSIONER OF INCOME TAX(APPEALS)-ALLAHABAD FOR THE AY.2009-10. IN THIS A PPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1.THAT IN ANY VIEW OF THE MATTER THE EX-PARTE AS SESSMENT ORDER DATED 28.02.2014 U/S 144 OF THE IT ACT AS PASSED BY THE ASSESSING OFFICER IN ARBITRARY MANNER AND HIS ACTIONS AS CONF IRMED BY THE COMMISSIONER OF INCOME TAX (APPEAL) VIDE HIS EX-PAR TE ORDER DATED 20.09.2017 ARE BAD BOTH ON THE FACTS AND IN LAW AND THEREFORE THE ASSESSMENT ORDER IS LIABLE TO BE DECLARED INVALID I N THE FACTS AND CIRCUMSTANCE OF THE CASE. 2.THAT IN ANY VIEW OF THE MATTER NO OTHER NOTICE UN DER ANY PROVISION OF THE IT ACT WAS EVER SERVED ON THE APPELLANT EXCE PT THE NOTICE U/S 148 OF THE IT ACT DATED 06/12/2012 WHICH WAS DELIVE RED BY THE APPELLANT TO HIS COUNSEL FOR MAKING FURTHER COMPLIA NCES AND HE FAILED ITA NO.19 /ALLD/2018 :- 2 -: IN IT, THEREFORE THE APPELLANT IS NOT IN DEFAULT AN HE FULLY DEPENDED UPON THE COUNSEL ONLY BEING AS ILLETRATE PERSON, HE NCE IN SUCH SITUATION SO PASSED EX-PARTY ASSESSMENT ORDER U/S 1 44 OF THE ACT DATED 28.02.2014 IS LIABLE TO BE DECLARED INVALID. 3.THAT IN ANY VIEW OF THE MATTER NOT ONLY ASSESSMEN T ORDER WAS FRAMED ARBITRARILY BY THE ASSESSING OFFICER VIDE HI S EX-PARTE ORDER BUT THE COMMISSIONER OF INCOME TAX (APPEAL) ALSO CONFIR MED THE ASSESSMENT ORDER/ ASSESSING OFFICER'S ACTIONS BLIND LY WITHOUT PROVIDING PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT VIDE HIS ORDER DATED 20.09.2017, WHICH IS UNJUSTIFIED, UNFAI R AND INJUSTICE, HENCE THE EX-PARTE ORDERS PASSED BY THE TWO LOWER A UTHORITIES ARE LIABLE TO BE DECLARED INVALID. 4.THAT IN ANY VIEW OF THE MATTER OBSERVATIONS AND F INDINGS OF THE TWO LOWER AUTHORITIES IN THEIR EX-PARTE ORDERS FOR FRAM ING AND CONFIRMING THE EX-PARTE ORDERS WITHOUT PROVIDING PROPER AND RE ASONABLE OPPORTUNITY AND PROVIDING THE THE CORRECTS FACT ARE HIGHLY UNJUSTIFIED, ILLEGAL AND CONTRARY TO THE ACTUAL FACTS OF THE CAS E, HENCE THE SAME ARE LIABLE TO BE SPONGED OF AND THE EX-PARTY ASSESS MENT SO MADE AND CONFIRMED DESERVES TO BE DECLARED INVALID AND VOID. 5.THAT IN ANY VIEW OF THE MATTER THE INCOME SO DETE RMINED AND CONFIRMED AT RS. 13,65,500/- BY THE TWO LOWER AUTHO RITIES VIDE THEIR EX-PARTE ORDERS IS HIGHLY UNJUSTIFIED, ILLEGAL AS T HE DEPOSITS IN BANK ACCOUNT NO. 20289 WITH CANARA BANK WERE FROM DEFINI TE SOURCE AND NOT FROM ANY UNDISCLOSED SOURCE BUT THE TWO LOWER A UTHORITIES IGNORED THIS FACT, HENCE SO DETERMINED AND CONFIRMED INCOME IN ARBITRARY MANNER IS UNJUSTIFIED AND ILLEGAL IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 6.THAT IN ANY VIEW OF THE MATTER THE DEPOSITS IN TH E REFERRED BANK ACCOUNT WERE MADE FROM VARIOUS SOURCES SUCH AS AGRI CULTURE INCOME, INCOME FROM HIRE OF CAR, FUND RECEIVED AFTER DEATH OF APPELLANT FATHER FROM HIS EMPLOYER AND OUT OF WITHDRAWALS FROM TIME TO TIME BUT THE TWO LOWER AUTHORITIES DETERMINED AND CONFIRMED THE INCOME AT RS. 13,65,500/- ARBITRARILY ACCORDING TO THEIR LIKING B Y IGNORING CORRECT FACTS WHICH IS HIGHLY UNJUSTIFIED AND ILLEGAL IN TH E FACTS AND CIRCUMSTANCES OF THE CASE AND THEREFORE THE ADDITION IS LIABLE TO BE DELETED. 7.THAT IN ANY VIEW OF THE MATTER THE INTEREST CHARG ED UNDER DIFFERENT SECTIONS OF THE IT ACT IS HIGHLY UNJUSTIFIED AND IL LEGAL IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 8.THAT IN ANY VIEW OF THE MATTER THE APPELLANT RESE RVES HIS RIGHT TO TAKE ANY FRESH GROUND BEFORE HEARING OF THE APPEAL . ITA NO.19 /ALLD/2018 :- 3 -: 2. AT THE OUTSET, LD.AR FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER RE-OPENED THE ASSESSMENT BY ISSU ING NOTICE U/S.148 OF THE INCOME TAX ACT [ACT] ON THE BAS IS OF THE AIR INFORMATION REGARDING DEPOSIT OF CASH OF RS.13,65 ,500/- IN THE BANK ACCOUNT OF THE ASSESSEE. AFTER RECEIVING THE NOTICE U/S.148 OF THE ACT, THE ASSESSEE HANDED OVER THE SAME A S WELL AS THE RELEVANT RECORD TO THE AUTHORISED REPRESENTATIVE, HOWEVER, THE AUTHORISED REPRESENTATIVE HAS NOT APPEARE D BEFORE THE ASSESSING OFFICER AND CONSEQUENTLY, THE ASSESSMENT/RE-ASSESSMENT ORDER WAS PASSED EX-PARTE. HE HAS FURTHER SUBMITTED THAT THE CIT(A) ALSO PASSED AN EX-PARTE ORDER, WITHOUT GIVING AN APPROPRIATE OPPORTUNITY OF HEA RING TO THE ASSESSEE. THE ASSESSEE HAS SOUGHT ADJOURNMENTS BEF ORE THE CIT(A), WHICH IS EVIDENT FROM THE IMPUGNED ORDER I TSELF. HOWEVER, THE CIT(A) INSTEAD OF GRANTING THE OPPORTUNITY OF HEARING TO THE ASSESSEE, HAS DECIDED THE APPEAL EX-PARTE. HE HAS FURTHER POINTED OUT THAT THE ASSESSEE IS HAVING SOUR CE OF DEPOSIT BEING SAVINGS FROM AGRICULTURAL INCOME, FUND S RECEIVED FROM DECEASED FATHER AND INCOME FROM CAR RENTING. THE ASSESSEE IS ALSO AN ILLITERATE PERSON AND THEREFORE W AS TOTALLY DEPENDENT ON THE AUTHORISED REPRESENTATIVE. HENCE, WITH OUT CONSIDERING THE SOURCE OF DEPOSIT MADE IN TO THE BANK A CCOUNT, THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIR MED BY THE CIT(A) IS NOT JUSTIFIED. LD.AR HAS PLEADED THAT THE A SSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO PRODUCE THE SUPP ORTING EVIDENCE OF SOURCE OF DEPOSIT, WHICH CAN BE EXAMINED BY THE ASSESSING OFFICER. ITA NO.19 /ALLD/2018 :- 4 -: 3. ON THE OTHER HAND, LD.DR HAS OPPOSED THE GRANT OF O NE MORE OPPORTUNITY TO THE ASSESSEE AND SUBMITTED THAT MORE THAN SUFFICIENT OPPORTUNITIES HAVE ALREADY BEEN GIVEN B Y THE ASSESSING OFFICER AS WELL AS BY THE CIT(A) AND THE ASSESSEE HAS FAILED TO COMPLY WITH THE NOTICES ISSUED BY THE AUTHORITI ES BELOW. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL A S THE RELEVANT MATERIAL ON RECORD, AT THE OUTSET IT IS NOTED THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS NOT FILED ANY RETUR N OF INCOME U/S.139(1) OF THE ACT. THE ASSESSING OFFICER I SSUED NOTICE U/S.148 OF THE ACT ON 29-08-2013 ON THE BASIS OF AIR INFORMATION REGARDING DEPOSIT OF RS.13,65,500/- IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSING OFFICER HAS FI NALLY MADE THE ADDITION OF THE ENTIRE AMOUNT OF RS.13,65,500 /- IN THE ABSENCE OF ANY RESPONSE AND EVIDENCE OF SOURCE O F DEPOSIT. THUS, THE ASSESSING OFFICER HAS PASSED AN EX-PARTE ORDER U/S.144 OF THE ACT. THE CIT(A) HAS ALSO DISMISSED THE APPEAL OF THE ASSESSEE VIDE IMPUGNED ORDER, WHICH WAS ALSO PASSED EX-PARTE WHEN NOBODY HAS ATTENDED THE PROCEEDINGS ON THE LAST DATE OF HEARING I.E., 08-09-2017. IT APPEARS THAT THE A SSESSEE IS HAVING THE SOURCE OF INCOME FROM AGRICULTURAL OPE RATIONS AS WELL AS CAR HIRING. THUS, THE ENTIRE DEPOSIT OF CASH IN THE BANK ACCOUNT, TREATING THE INCOME OF THE ASSESSEE APPEARS TO BE UN- REASONABLE WHEN THE ASSESSEE WAS HAVING THE SOURCE O F INCOME WHICH COULD NOT BE PRODUCED BEFORE THE AUTHORITIES BEL OW DUE TO NON-APPEARANCE OF THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCE S OF THE CASE, THE SOURCE OF INCOME AS CLAIMED BY THE ASSESSEE IS ITA NO.19 /ALLD/2018 :- 5 -: REQUIRED TO BE VERIFIED AND EXAMINED AT THE LEVEL OF A SSESSING OFFICER. HENCE, IN THE INTEREST OF JUSTICE, THE MATTER IS SET ASIDE TO THE RECORD OF ASSESSING OFFICER TO VERIFY AND EXAM INE THE SOURCE OF DEPOSIT, IF ANY TO BE PRODUCED BY THE ASSE SSEE. NEEDLESS TO MENTION THAT ASSESSEE SHOULD BE GIVEN A FAI R OPPORTUNITY OF HEARING. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH NOVEMBER, 2020 SD/- (VIJAY PAL RAO) JUDICIAL MEMBER ALLAHABAD, DATED: 05-11-2020 TNMM COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT 6. GUARD FILE TRUE COPY BY ORDER (ITAT, ALLAHABAD)