Rajaram Rathore, Raisen V. The ITO 3(1), Bhopal

ITA 206/IND/2012

• Counselvise Citation: 20622714 RSA 2012
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 16-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R R MEENA
• Keywords: Unexplained investment

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 206/IND/2012 A.Y.2008-09 RAJARAM RATHORE, MANDIDEEP PAN AJUPR 4675 H :: APPELLANT VS ITO-3(1), BHOPAL :: RESPONDENT APPELLANT BY SHRI SUMIT NEMA RESPONDENT BY SHRI R.R. MEENA DATE OF HEARING 31.10.2012 DATE OF PRONOUNCEMENT 31.10.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 25.1.2012, PASSED BY LD. FIRST APPELLATE AUTHORITY, I NDORE, ON THE FOLLOWING GROUNDS OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN 2 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSMENT ORDER IS VITIATED ON SEVERAL G ROUNDS HENCE THE SAME MAY KINDLY BE QUASHED. 2. THAT PROPER OPPORTUNITY HAS NOT BEEN ALLOWED BEFORE MAKING THE ASSESSMENT. 3. THAT THE ORDER IS BAD IN LAW. 4. THAT THE LD. ASSESSING OFFICER ERRED AND WAS NOT JUSTIFIED AND THE LD. CIT(A) WAS NOT JUSTIFIED IN C ONFIRMING THE ADDITION OF RS.59,72,100/- FROM FREIGHT PAYMENT S MADE BY THE APPELLANT ON ACCOUNT OF NO DEDUCTION OF TDS INSPITE OF THE FACT THAT THERE WAS NO LIABILITY TO DEDUCT TDS. 5. THAT THE LD. LOWER AUTHORITIES ERRED AND WAS NOT JUSTIFIED IN MAKING AN ADDITION OF RS.3,40,000/- AS INCOME FROM OTHER SOURCES AND ADDING TO THE TOTAL I NCOME AS UNEXPLAINED INVESTMENT U/S 69A. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHRI SUMIT NEMA, LD. COUNSEL FOR THE ASSESSEE AND SHRI R.R . MEENA, LEARNED SR. DR. MR. NEMA DID NOT PRESS GROUNDS NO.1, 3 & 5, THEREFORE, THESE GROUNDS ARE DISMISSED AS NOT PRESSED. THE ONLY GROUND WHICH REMAINED FOR ADJUDICATI ON IS WITH RESPECT TO CONFIRMING ADDITION OF RS.59,72,1 00/- FROM PAYMENT MADE BY THE ASSESSEE ON ACCOUNT OF NON- DEDUCTION OF TDS. THE CRUX OF ARGUMENTS IS THAT THE ASSESSEE WAS NOT LIABLE TO DEDUCT TDS AND PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE TO 3 SUBSTANTIATE THE SAME. IT WAS REQUESTED THAT GROUND NO.4, THEREFORE, BE REMANDED TO THE FILE OF LD. ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE PLACED RELIANCE UPON THE DECISION IN THE CASE OF SMT. GUNVANTI SANGHVI VS. ACIT (2012) 20 ITJ 284 (INDORE ITAT) ALONG WITH OTHER DECISIONS WHICH HAVE B EEN MENTIONED/CONSIDERED IN THE CASE OF SMT. SANGHVI (SUP RA). THE LD. SR. DR ALSO HAD NO OBJECTION IN REMANDING TH E ISSUE BACK TO THE FILE OF THE LD. ASSESSING OFFICER, THOUGH MR. MEENA, LD. SR. DR DEFENDED THE ADDITION. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSING OFFICER EXAMINED THE DETAILS OF FREIGH T CHARGES PAID FOR FY 2007-08 AND OBSERVED THAT TO SOME OF THE PARTIES, MORE THAN RS.50,000/- WAS PAID AND MERELY TRUCK NOS. WERE MENTIONED. IN THE ABSENCE OF NAMES OF THE PARTIES, THE TOTAL AMOUNT OF RS.59,72,100/- WAS ADDED. AS 4 PER THE REVENUE, ON THE AMOUNTS PAYABLE TO THE CONTRAC TOR OR SUB-CONTRACTOR, NO TAX WAS DEDUCTED BY THE ASSESSE E. IT WAS ALSO PLEADED THAT FORM NO.15J WERE NOT AVAILABLE AT TH E RELEVANT TIME OF ASSESSMENT AND THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE HIS CLAIM. IN VIEW OF THESE F ACTS, WITHOUT GOING INTO THE MERITS OF THE CLAIM AND IN THE INTEREST OF JUSTICE AND FAIR PLAY AND BY FOLLOWING THE AFORESAID DECISION OF THE INDORE TRIBUNAL IN THE CASE O F SMT. GUNVANTI SANGHVI (SUPRA), WE RESTORE THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE CLAI M OF THE ASSESSEE. THE ASSESSEE IS DIRECTED TO PRODUCE THE REL EVANT RECORD, IF ANY, BEFORE THE ASSESSING OFFICER, IN SUP PORT OF HIS CLAIM. NEEDLESS TO MENTION HERE THAT DUE OPPORTUN ITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THE LD. ASSE SSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ASSESS EE AND DECIDE IN ACCORDANCE WITH LAW. 5 FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FO R STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT TH E CONCLUSION OF THE HEARING ON 31.10.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 31.10.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!