Sh. Pawan Singh Rawat Prop., Aligarh V. I.T.O., Ward-2, Aligarh

ITA 198/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0739 (ITAT-AGRA)
• Duration Of Justice: 5 year(s) 11 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SHARMA
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 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 NO. 198/AGRA/2013 ASSTT. YEAR : 2008-09 PAWAN SINGH RAWAT, VS. INCOME-TAX OFFICER, PROP. M/S. ATOZ BUILDERS & DESIGNERS, WARD 2, A LIGARH. 15/43, KHAI DORA, ALIGARH. (PAN : ADMPR 3975 Q) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SHRI S.D. SHARMA, JR. D.R. DATE OF HEARING : 22.07.2013 DATE OF PRONOUNCEMENT OF ORDER : 26.07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), MUZAFFARNAGAR DATED 07.02.2013 FOR THE ASSESSMENT Y EAR 2008-09. 2. THE AO IN THE ASSESSMENT ORDER NOTED THAT THE AS SESSEE EARNED INCOME FROM PROFESSION ENGAGED IN PROFESSION OF PREPARATION OF MAPS ETC. FOR BUILDING CONSTRUCTION. IT WAS FOUND THAT THE ASSESSEE HAS DE POSITED CASH OF RS.12,27,805/- IN ICICI BANK LTD., ALIGARH. THE ASSESSEE IN REPLY DAT ED 06.12.2010 SUBMITTED THAT THE ASSESSEE HAS MAINTAINED TWO BANK ACCOUNTS WITH STATE BANK OF INDIA AND PUNJAB NATIONAL BANK. THERE WAS NO OTHER CURRENT AC COUNT. THE AO ISSUED SHOW ITA NO. 198/AGRA/2013 2 CAUSE NOTICE TO THE ASSESSEE ON 10.12.2010 ASKING H IM TO EXPLAIN THE DEPOSITS OF RS.12,27,805/- IN CASH WITH ICICI BANK LTD., ALIGAR H. THE DATE WAS FIXED FOR 16.12.2010 AND IN THE ABSENCE OF ANY EXPLANATION, T HE DEPOSITS IN THE BANK ACCOUNT WITH ICICI BANK LTD., ALIGARH WERE TREATED AS UNEXP LAINED AND ADDITION WAS ACCORDINGLY MADE U/S. 69 OF THE IT ACT. THE ASSESSE E FURNISHED ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) IN THE SHAPE OF MEDICAL CERTI FICATE AND AFFIDAVIT IN RESPECT OF SICKNESS OF THE ASSESSEE, WHICH PREVENTED HIM FROM EXPLAINING THE DEPOSITS MADE IN ICICI BANK LTD., ALIGARH OF RS.12,27,805/-. THE AO IN THE REMAND REPORT DID NOT MAKE ANY SPECIFIC COMMENT ON THE SAME. THE LD. CIT(A) NOTED THAT THE ABOVE ADDITIONAL EVIDENCES WERE SENT TO THE AO FOR FILING THE REMAND REPORT AND THE AO IN THE REMAND REPORT SUBMITTED THAT HE HAS DEPUTED INSPECTOR TO VERIFY THE ENTRIES IN ICICI BANK LTD., ALIGARH AND ALL ENTRIES IN THE BAN K ACCOUNT SEEMS TO BE IN HIS WORKING NATURE AND THE ASSESSEE HAS NOT PROVED THE SAME. THE LD. CIT(A) OBSERVED IN THE APPELLATE ORDER THAT THE AO WAS REQUIRED TO SUBMIT THE REPORT ON THE ADMISSION OF ADDITIONAL EVIDENCE. HOWEVER, THE AO E XCEEDED HIS JURISDICTION IN DISCUSSING THE MERITS OF SUCH ADDITIONAL EVIDENCES. THE LD. CIT(A) ALSO NOTED THAT THE CASE SET UP BY THE ASSESSEE IS CONCOCTED STORY AND NO REASONS ARE GIVEN UNDER RULE 46A FOR ACCEPTANCE OF ADDITIONAL EVIDENCE. THE REFORE, THE REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE WAS REJECTED. ADDI TION ON MERIT WAS CONFIRMED AND THE APPEAL OF THE ASSESSEE WAS DISMISSED. ITA NO. 198/AGRA/2013 3 3. THE ASSESSEE IN THE APPEAL CHALLENGED THE REJECT ION OF ADDITIONAL EVIDENCE AS WELL AS ADDITION OF RS.12,27,805/- ON MERITS. THE L D. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT( A) AND REFERRED TO APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE (PB-1) IN WHIC H THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT DUE TO ILLNESS, THE ASSESSEE WA S PREVENTED FROM EXPLAINING THE ENTRIES WITH ICICI BANK LTD. MEDICAL CERTIFICATE AN D AFFIDAVIT WERE FILED IN WHICH IT WAS EXPLAINED THAT DUE TO HIS ILLNESS ON 16.12.2 010, I.E., DATE OF HEARING BEFORE THE AO, THE ASSESSEE COULD NOT EXPLAIN THE ENTRIES IN THE BANK ACCOUNT DUE TO ILLNESS. THE ASSESSEE ALSO FILED COPY OF THE BANK A CCOUNT WITH ICICI BANK LTD. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASS ESSEE HAS ALL EVIDENCES TO EXPLAIN THE SAME ENTRIES AND SINCE NO PROPER OPPORTUNITY WA S GIVEN AT THAT STAGE AND ADDITIONAL EVIDENCES WERE NOT ADMITTED BY THE LD. C IT(A), THEREFORE, THE MATTER MAY BE REMANDED TO THE AO FOR EXAMINATION OF THE IS SUE AFRESH. ON THE OTHER HAND LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BE LOW AND SUBMITTED THAT DESPITE AMPLE OPPORTUNITY GIVEN BY THE AO, THE ASSESSEE DID NOT FURNISH ANY EXPLANATION TO EXPLAIN THE DEPOSITS MADE IN ICICI BANK LTD. THEREF ORE, THE REQUEST OF THE ASSESSEE SHOULD NOT BE ACCEPTED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. INITIA LLY, REPLY WAS FILED BY THE ASSESSEE ON 06.12.2010. THEREAFTER, THE AO ISSUED N OTICE DATED 10.12.2010 SEEKING EXPLANATION OF THE ASSESSEE WITH REGARD TO THE ICIC I BANK LTD., IN WHICH THE ITA NO. 198/AGRA/2013 4 ASSESSEE HAS MADE DEPOSITS OF RS.12,27,805/- IN CAS H. THE DATE FOR COMPLIANCE WAS FIXED FOR 16.12.2010 AND IN THE ABSENCE OF ANY EXPL ANATION, ADDITION WAS CONFIRMED AND THE ASSESSMENT ORDER WAS PASSED ON 20 .12.2010, I.E., WITHIN FOUR DAYS OF THE DATE OF COMPLIANCE. THE ASSESSEE FILED AFFIDAVIT AND MEDICAL CERTIFICATE BEFORE THE LD. CIT(A) AND REQUESTED THAT DUE TO ILL NESS OF THE ASSESSEE, HE COULD NOT EXPLAIN THE ENTRIES BEFORE THE AO ON THE DATE FIXED . THE LD. CIT(A) SPECIFICALLY NOTED IN THE APPELLATE ORDER THAT THE REMAND REPORT FROM THE AO WAS CALLED FOR ON SUCH ADDITIONAL EVIDENCE AND THE AO INSTEAD OF FILI NG HIS COMMENTS ON THE ADMISSION OF ADDITIONAL EVIDENCE HAS DISCUSSED THE EVIDENCE ON MERITS. THE BASIS OF THE REMAND REPORT OF THE AO WAS VERIFICATION MAD E BY THE INCOME-TAX INSPECTOR. THE LD. CIT(A), THEREFORE, NOTED THAT THE AO HAS EX CEEDED HIS JURISDICTION IN THE MATTER. ON THE FACE OF THESE FINDINGS OF THE LD. CI T(A), THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. ONCE, IT IS HELD THAT THE AO HAS NOT COMMENTED UPON THE MEDICAL CERTIFICATE AND AFFIDAVI T OF THE ASSESSEE WOULD PROVE THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCES BEFORE THE AO TO EXPLAIN THE ENTRIES IN THE ICICI B ANK LTD, ALIGARH. THEREFORE, IN SUCH CIRCUMSTANCES, THE LD. CIT(A) SHOULD HAVE REMA NDED THE MATTER TO THE FILE OF AO TO GIVE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS NOTED ABOVE, THE AO CALLED FOR EXPLANATION OF THE ASSESSEE VIDE NOTICE DATED 10.12.2010 FIXING THE DATE OF COMPLIANCE FOR 16.12.2010 AND ON THAT D ATE, THE ASSESSEE WAS ILL. THE AO IMMEDIATELY PASSED ORDER ON 20.12.2010, I.E., WI THIN 4 DAYS FROM THE DATE OF ITA NO. 198/AGRA/2013 5 COMPLIANCE. THESE FACTS WOULD, THEREFORE, DISCLOSE THAT THE ASSESSEE WAS NOT GIVEN REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD AT THE ASSESSMENT STAGE. THE LD. CIT(A) INSTEAD OF ADMITTING THESE ADDITIONAL EVIDEN CES REJECTED THE CLAIM OF ASSESSEE. CONSIDERING THE TOTALITY OF FACTS AND CIR CUMSTANCES NOTED ABOVE, IN THE LIGHT OF ABOVE DISCUSSION, WE ARE OF THE VIEW THAT INTEREST OF JUSTICE REQUIRES THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSE E TO EXPLAIN THE DEPOSITS IN ICICI BANKS LTD., ALIGARH AT THE LEVEL OF AO. WE, A CCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISSUE TO THE FILE OF AO WITH DIRECTION TO RE-DECIDE THIS ISSUE BY GIVING REASONA BLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY