Shri Santosh Kumar Vioriya, Indore V. The ITO 5(1), Indore

ITA 217/IND/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91794 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 19-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S N AGRAWAL
• Keywords: Additional evidence
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH (SMC), INDORE BEFORE SHRI B.C. MEENA HONBLE ACCOUNTANT MEMBER ITA NO. 217/IND/2014 A.Y. 2008-09 SHRI SANTOSH KUMAR VIORIYA INDORE PAN ADZPV6517D ::: APPELLANT VS INCOME TAX OFFICER 5(1) INDORE ::: RESPONDENT ` APPELLANT BY SHRI S.N. AGRAWAL RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 20.4.2015 DATE OF PRONOUNCEMENT 20 .4.2015 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LEARNED CIT(A)-II, DATED 31.12.2013. 2 2. THE ASSESSEE IS AN INDIVIDUAL RUNNING THE BUSINESS UNDER HIS PROPRIETARY NAME M/S JAI GAJANAND AALU BHANDAR. IT IS ALSO DECLARED THAT THE ASSESSEE HAS INCOME FROM BUSINESS OF RETAIL TRADE OF VEGETABLES MAINLY OF P OTATO, ONION AND COMMISSION INCOME. THE RETURN OF INCOME WAS FILED ON 23.2.2009 DECLARING TAXABLE INCOME AT RS.1,40,900/-. THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS. 4,68,437/-. ALTHOUGH ON THE FACE OF TH E ASSESSMENT ORDER, THE ASSESSING OFFICER HAS MENTIONED THAT THE ORDER HAS BEEN MADE U/S 143(3). HOWEVER, AT TH E END OF THE ORDER, IT HAS ALSO BEEN WRITTEN ORDER UND ER SECTION 144/143(3) OF THE INCOME TAX ACT, 1961. TH E ADDITION HAS BEEN MADE BY CALCULATING INCOME ON CAPITAL ROTATION METHOD AND THE ROTATION OF CAPITAL IS DETERMINE D ASSUMING THE RETAIL TRADE AND ASSESSING OFFICER ADDED RS.2,04,711/- AND RS. 1,22,826/- AS INTEREST @ 5% ON THE 3 RECEIPTS IN THE BANK ACCOUNT OF THE ASSESSE. THE ASSES SEE FILED APPEAL WHICH WAS DECIDED BY THE LD. CIT(A) EX-PAR TE. 3. WE HAVE HEARD THE LD. AR OF THE ASSESSEE WITH REGAR D TO ADMISSION OF ADDITIONAL EVIDENCES. IT IS INTEREST ING TO NOTE THAT IN THE FIRST PARA OF THE ASSESSMENT ORDER, TH E LEARNED ASSESSING OFFICER HAS WRITTEN HAS UNDER :- THE ASSESSEE FILED HIS INCOME TAX RETURN 23.02.20 09 VIDE ACKNOWLEDGEMENT NO. 56076890230209 DECLARING INCOME OF RS. 1,40,900.00. THE RETURN WAS PROCESSE D UNDER THE PROVISIONS OF SECTION 143(1) OF THE ACT. THE ASSESSEE HAS ENTERED INTO THE TRANSACTION NOTIFIED FOR AIR AND FALLS UNDER THE CRITERIA OF COMPULSORY SCRU TINY VIDE CBDT INSTRUCTION NUMBER 01/2009 DATED 12.02.09. THE ITO WARD 3(3) INDORE (M.P.) DESIGNAT ED OFFICER FOR ASSESSE. THE JURISDICTION OVER THE CAS E LIES WITH THE UNDER SIGNED, THEREFORE, THE CASE WAS TRANSFERRED BY HIM VIDE HIS LETTER DATED 18.09.2009 NOTICE UNDER SECTION 143(2) ISSUED AND SERVED ON 28/09/2009 UPON THE ASSESSEE BY MY PREDECESSOR. DUE TO CHANGE IN INCUMBENT, NOTICE UNDER SECTION 143(3)/142(1) OF THE INCOME TAX ACT, 1961 WAS ISSUE D AND SERVED THROUGH RPAD. SHRI SANTOSH KUMAR VITORIYA PROPRIETOR/PARTNER/AUTHORIZED REPRESENTATI VE AND SHRI ABDHESH BANSAL, CHARTERED ACCOUNTANT/ADVOCATE/ACCOUNTANT ATTENDED THE PROCEEDINGS ON THE DATES OF HEARING, ARGUMENTS MADE AND WRITTEN COMPLIANCE MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WERE CONSIDERED AND PLACED ON RECORD. THE BOOKS OF ACCOUNT PRODUCED, WAS CROSS 4 VERIFIED AND EXAMINED. THE CASE WAS DISCUSSED WITH HIM ON THE DATE OF HEARING. AND SUBSEQUENTLY IN THE SAME ORDER HE HAS WRITTEN THAT T HE ASSESSEE HAS FAILED TO COMPLY WITH THE NOTICES AND DID NOT ATTEND THE PROCEEDINGS WHILE IN THE FIRST PARA IT HAS BEEN CLEARLY NOTED THAT THE BOOKS OF ACCOUNTS PRODUCED, WER E CROSS-VERIFIED AND EXAMINED AND THE CASE WAS DISCUSSED WITH HIM ON THE DATE OF HEARING. THE LD. CIT(A) HAS DISMISSED THE APPEAL FOR NON-COMPLIANCE OF NOTICES AND BY INVOKING CIT VS. MULTIPLAN INDIA PVT,. LTD.; 38 ITD 3 20 (DELHI) AND OTHER DECISIONS AS MENTIONED THEREIN. TH E ASSESSEES AR PLEADS THAT CERTAIN NECESSARY DETAILS WERE SUBMITTED TO THE ASSESSING OFFICER AND THEREAFTER NO NOTICE OF HEARING WAS RECEIVED, HENCE ASSESSING OFFICERS O RDER WAS NOT JUSTIFIED IN MAKING ORDER U/S 144 OF THE ACT AND THE CIT(A) HAS ALSO NOT GIVEN ADEQUATE OPPORTUNITY AND N OT 5 JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION. 4. WE HAVE HEARD BOTH SIDES ON VARIOUS ASPECTS OF THIS APPEAL. CONSIDERING THE TOTALITY OF THE FACTS OF THIS C ASE AND IN PECULIAR CIRCUMSTANCES OF THIS APPEAL, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND EQUITY, IT WOULD B E FAIR AND REASONABLE TO ADMIT THE ADDITIONAL EVIDENCES SUBMITTED B Y THE ASSESSEE PLACED AT PAGES 3 TO 50 OF THE PAPER BOOK AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFI CER TO BE DECIDED DE NOVO. THE ASSESSEE SHALL BE AT LIBERTY TO PRODUCE ALL THE RELEVANT DOCUMENTS WHICH HE DESIRES TO FILE B EFORE THE ASSESSING OFFICER. THE ORDERS OF THE AUTHORITIES BE LOW ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF TH E ASSESSING OFFICER TO BE DECIDED DE NOVO. THE ASSESSE E SHALL NOT SEEK UNNECESSARY ADJOURNMENTS AND SHALL COOPERATE IN ASSESSMENT PROCEEDINGS. 6 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE ITA NO. 217/IND/14 IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON 20 TH APRIL, 2015 SD/- (B.C. MEENA) ACCOUNTANT MEMBER APRIL 20 TH ,2015 COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R (6) GUARD FILE DN/-