Prafulla Kumar Bidhar, Bhubaneswar V. ITO, Ward-2(1), Bhubaneswar

ITA 210/CTK/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1147 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 24-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P R MOHANTY
• Keywords: Onus to prove
• Section: 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM (THROUGH : VIDEO CONFERENCING) . / ITA NO. 210 /CTK/20 1 7 ( / A SSESSMENT Y EAR : 20 1 1 - 2 01 2 ) PRAFULLA KUMAR BIDHAR, HOUSE NO.11, KANAN VIHAR, PO - PATIA, BHUBANESWAR - 751031 VS. ITO, WARD - 2(1), BHUBANESWAR PAN NO. : A ALPB 3104 H ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI P.R.MOHANTY, AR /REVENUE BY : SHRI SUBHENDU DUTTA, DR / DATE OF HEARING : 05 / 1 1 /20 20 / DATE OF PRONOUNCEMENT : 18 / 1 1 /20 20 / O R D E R PER L.P.SAHU, AM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER D ATED 30 .0 1 .201 7 , PASSED BY THE CIT(A) - 2 , BHUBANESWAR FOR THE ASSESSMENT YEAR 20 1 1 - 20 1 2 . 2. AS PER THE OFFICE NOTE, THE APPEAL IS BARRED BY 6 DAYS. IN THIS REGARD, THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE DELAY IN FILING THE APPEAL, TO WHICH THE L D. DR DID NOT OBJECT. WE HAVE CONSIDERED THE AFFIDAVIT FILED BY THE ASSESSEE AND FOUND THAT THERE IS SUFFICIENT CAUSE HAS BEEN EXPLAINED BY THE ASSESSEE IN DELAY IN FILING THE APPEAL. ITA NO. 210 /CTK/201 7 2 ACCORDINGLY, WE CONDONE THE DELAY OF 6 DAYS IN FILING THE PRESENT APPEAL . 3 . LD. AR BEFORE US HAS FILED AN APPLICATION DATED 05.11.2020 SEEKING ADJOURNMENT ON THE GROUND THAT CERTAIN DOCUMENTS , REQUIRED FOR ADJUDICATION OF THE ISSUE INVOLVED IN THE APPEAL , COULD NOT BE COLLECTED, WHICH, IN OUR OPINION, IS NOT A PLAUSIBLE ONE A S PER THE ADJOURNMENT APPLICATIONS FILED EARLIER ALSO, WHICH ARE PLACED IN THE FILE , THEREFORE, WE REJECT THE ADJOURNMENT APPLICATION FILED BY THE LD. AR OF THE ASSESSEE AND APPEAL IS HEARD FINALLY. 4 . THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS U NDER : - 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER DT.30.1.2017 OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) - 2 IS NOT SUSTAINABLE IN LAW. 2. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) - 2 HAS ERRE D IN LAW IN SUSTAINING THE ADDITION OF RS.96,87,348.00 U/S 69 OF THE I.T. ACT, 1961 AS THE SAID ADDITION CANNOT BE MADE U/S 69 OF THE I.T. ACT. 3. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) - 2 HAS COMMITTED AN ERROR OF LAW IN CONFIRMING T HE ADDITION OF RS.96,87,348.00 RELYING UPON THE DECISION OF THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF GOVINDARAJULU MUDALIAR V. CIT (1958) 34 ITR 807 AS THE SAME BEING DISTINCTIVE FROM THE PRESENT CASE ON THE GROUND THAT THE APPELLANT RECEIVED THE MONEY TOWARDS SALE OF AGRICULTURAL LAND AND SOURCE OF DEPOSIT HAVING BEEN EXPLAINED BY THE APPELLANT. 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) - 2 HAS ERRED IN LAW IN ARRIVING AT A CONCLUSION THAT THE SUBMISSION OF THE APPELLANT IS NOT ACCEPTABLE AS THE SAID FINDINGS ARRIVED AT WITHOUT CONSIDERING THE DOCUMENTS /EVIDENCE PRODUCED IN COURSE OF ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS. 5. FOR THAT OTHER GROUNDS IF ANY SHALL BE URGED AT THE TIME OF HEARING OF APPEAL. ITA NO. 210 /CTK/201 7 3 5 . AT THE OUTSET, D URING THE COURSE OF HEARING , LD. AR SUBMITTED THAT THE CIT( A) HAS NOT CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND THE DOCUMENTS/EVIDENCE PRODUCED BEFORE HIM. ACCORDINGLY, THE LD. AR SUBMITTED THAT ONE MORE OPPORTUNITY MAY BE PROVIDED TO SU BSTANTIATE THE CLAIM OF THE ASSESSEE BEFORE THE CIT(A) . 6 . ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF LOWER AUTHORITIES AND HE SUBMITTED THAT THE ASSESSEE COULD NOT SUBSTANTIATE HIS CLAIM BEFORE BOTH THE AUTHORITIES BELOW, THEREFORE, THE ORDER S OF T HE LOWER AUTHORITIES SHOULD BE CONFIRMED. 7 . ON CAREFUL CONSIDERATION OF THE SUBMISSIONS OF BOTH THE SIDES AND PERUSING THE RELEVANT MATERIAL PLACED IN THE RECORD OF THE TRIBUNAL ALONG WITH THE ORDERS OF BOTH THE AUTHORITIES BELOW, WE FIND THAT THE CIT(A) HAS PASSED ORDER HOLDING THAT THE ASSESSEE COULD NOT FURNISH DETAILS TO SUBSTANTIATE HIS CLAIM. BEFORE US, LD. AR SUBMITTED THAT THE ASSESSEE HAD RECEIVED ADVANCE TOWARDS SALE OF AGRICULTURAL LAND HAD ENTERED INTO THE WRITTEN CONTRACTS / AGREEMENT AND THE ASSESSEE HAD SECURED THE PRESENCE OF THE ABOVE PERSONS BEFORE THE AO. IT WAS ALSO SUBMITTED BY THE LD. AR THAT ALL THE PERSONS HAD ADMITTED THAT THEY HAD GIVEN ADVANCE TOWARDS PURCHASE OF AGRICULTURAL LAND BY WAY OF CASH AND CHEQUE. HENCE, THE ASSESSEE HAS DISCHARGED HIS BURDEN OF PROOF BY SECURING THE PRESENCE OF THE PERSONS WHO HAD GIVEN ADVANCE MONEY BY PRODUCING THE COPIES OF THE AGREEMENT. THE ONLY GROUND OF ITA NO. 210 /CTK/201 7 4 DISALLOWANCE OF THE AMOUNT IN QUESTION IS THAT NO BANK A/C WAS PRODUCED BY THE ABOVE PERSONS AN D SALE DEED WAS NOT EXECUTED WITHIN THREE MONTHS OF THE AGREEMENT. IT WAS ALSO SUBMITTED BY THE LD. AR THAT BOTH THE AUTHORITIES BELOW HAVE NOT CONSIDERED THE FACT THAT THE PERSONS FROM WHOM THE ASSESSEE HAS RECEIVED ADVANCE HAD GIVEN CHEQUES WHICH HAD BEE N DEPOSITED IN THE ASSESSEES ACCOUNT. AS REGARDS TO EXECUTION OF SALE AGREEMENT, THE ASSESSEE HAD CLARIFIED BEFORE THE CIT(A) AS WELL AS BEFORE THE AO THAT THE LAND IN QUESTION IS UNDER SETTLEMENT PROCESS AND THE PROSPECTIVE BUYERS AGREED TO PURCHASE THE LAND AFTER THE SETTLEMENT FOR SMOOTH MUTATION IN THEIR FAVOUR. HOWEVER, BOTH THE AUTHORITIES BELOW HAVE NOT CONSIDERED EITHER THE SUBMISSIONS OF THE ASSESSEE OR THE DOCUMENTS/EVIDENCE PRODUCED BEFORE THEM. THEREFORE, LD. AR SUBMITTED THAT IF ONE MORE OPPOR TUNITY BE GRANTED TO THE ASSESSEE, IN THE INTEREST OF JUSTICE, THE ASSESSEE SHALL BE ABLE TO SUBSTANTIATE HIS CLAIM BEFORE THE AO . L OOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PRAYER OF THE ASSESSEE AND IN THE INTEREST OF JUSTICE , WE RESTORE THE APPEAL OF THE ASSESSEE TO THE FILE OF AO TO PASS ORDER AFRESH AND T HE ASSESSEE IS DIRECTED TO PLACE THE REQUIRED DOCUMENTS BEFORE THE AO AND SUBSTANTIATE HIS CLAIM ACCORDINGLY . NEEDLESS TO SAY, THE ASSESSEE SHALL BE PROVIDED REAS O NABLE OPPORTUNITY OF H EARING. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE AO ITA NO. 210 /CTK/201 7 5 POSITIVELY FOR EARLY DISPOSAL OF THE CASE. THUS, WE ALLOW THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 18 / 1 1 / 20 20 . SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 18 / 1 1 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , /ITAT, CUTTACK 1. / THE APPELLANT - PRAFULLA KUMAR BIDHAR, HOUSE NO.11, KANAN VIHAR, PO - PATIA, BHUBANESWAR - 751031 2. / THE RESPONDENT - ITO, WARD - 2(1), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6 . / GUARD FILE. //TRUE COPY//