SACHIN S GAONKAR, Pune V. ITO, Pune

ITA 2269/PUN/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76218 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Assessee Lawyers: YOGESH S LIMAYE
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 2269 /PN/20 1 2 ASSESSMENT YEAR : 200 8 - 09 SACHIN S. CHAPALGAONKAR, B/562, SO NIGARA VIHAR, KALEWADI, PIMPRI, PUNE VS. INCOME TAX OFFICER, WARD - VIII (I), PUNE (APPELLANT) (RESPONDENT) PAN NO. AEEPC7862A APPELLANT BY: SHRI YOGESH S. LIMAYE RESPONDENT BY: SHRI S.P. WALIMBE DATE OF HEARING : 26 - 02 - 2014 DATE OF PRONOUNCEME NT : 28 - 0 2 - 2014 ORDER P ER R.S. PADVEKAR , JM : - IN THIS APPEAL , THE ASSESSEE HAS CHALLENGED T HE IMPUGNED ORDER OF THE LD. CIT(A) - V, PUNE DATED 17 - 08 - 2012 FOR THE A.Y. 200 8 - 09. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) - V ERRED IN CONFIRMING ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S. 68. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) - V ERRED IN NOT PERUSING THE ADDITIONAL EVID ENCE SUBMITTED TO HIM. 2. THE BRIEFLY STATED FACTS ARE AS UNDER. THE ASSESSING OFFICER ON THE BASIS OF AIR INFORMATION REGARDING THE CASH DEPOSIT OF RS.27,83,500/ - IN JANTA CO - OPERATIVE BANK LTD., BRANCH, CHINCHWADGAON, PUNE CONFRONTED THE ASSESSEE DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE SUBMITTED THAT DURING THE PREVIOUS YEAR, HE HAD CARRIED BUSINESS OF AGENCY IN RESPECT OF VARIOUS AGRICULTURAL LANDS AND HAD RECEIVED AGENCY COMMISSION OF RS.3,33,548/ - . AS REGARDS, CASH DEPOSITS IN TH E BANK 2 ITA NO. 2 269/PN/2012, SACHIN S. CHAPALGAONKAR, PUNE ACCOUNT, HE EXPLAINED THAT BUYERS OF THE LAND WERE NOT KNOWING THE LAND OWNERS AND THEREFORE, CASH WAS GIVEN BY THE BUYERS TO THE ASSESSEE AND THE ASSESSEE DEPOSITED THE SAID CASH IN THE BANK. THE ASSESSEE ALSO EXPLAINED BEFORE THE ASSESSING OFFICE R THAT WHEN THE TRANSACTION WAS FINALIZED , THE AMOUNT GIVEN TO THE ASSESSEE AS CUSTODIAN BY THE BUYERS WAS PAID TO THE LAND OWNERS BY CHEQUE AND ALSO HE COLLECTED THE COMMISSION. IT APPEARS THAT THE ASSESSEE COULD NOT GIVE THE DETAILS OF PERSONS FROM WHOM THE AMOUNT IN CASH WAS RECEIVED STATING THAT HE WAS NOT AWARE THAT HE WOULD HAVE TO GIVE EXPLANATION TO THE INCOME TAX DEPARTMENT REGARDING THE DETAILS OF PERSONS FROM WHOM HE HAD RECEIVED THE AMOUNT IN CASH AND HE SUBMITTED THAT NO DETAILS OF THE PERSONS ARE MAINTAINED. HE ALSO STATED BEFORE THE ASSESSING OFFICER THAT IF 15 DAYS TIME IS GIVEN, HE WOULD GATHER THE REQUIRED DETAILS AND FURNISH THE SAME. IT APPEARS THAT HE DID NOT FILE ANY DETAILS BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER MAD E THE ADDITION OF RS.27,83,500/ - U/S. 68 OF THE INCOME - TAX ACT AND COMPLETED THE ASSESSMENT. 3. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) , THE ASSESSEE FILED THE DETAILS OF THE BUYERS OF THE LAND FOR WHOM HE WAS WORKING. HE SUBMITTED THAT HE TOOK CASH FROM ONE MR. RUSHIKESH CHAPALGAONKAR WITH RESPONSIBILITY TO FIND A SUITABLE LAND, AND TAKE NECESSARY STEPS TO CHECK THE TITLE ETC. HE ALSO GOT INVOLVED ONE MR. PRAKASH ATMARAM KETKAR (AGENT) AND MR. KULDEEP BH ANDKAR (AGENT) WHO WERE ALSO ACTING AS AN AGENT OF THE SELLER S . THE FINAL AGREEMENTS WERE MADE BETWEEN THE BUYERS AND THE SELLERS BUT THERE WAS NO REFERENCE OF MR. PRAKASH ATMARAM KETKAR OR MR. KULDEEP BHANDKAR. THE ASSESSEE WAS ONLY ENTITLED FOR COMMISS ION FOR ARRANGING THE TRANSACTION. 4 . THE ASSESSEE ALSO CONTENTED BEFORE THE LD. CIT(A) THAT HE RECEIVED RS.19 LACS FROM ONE SHRI RUSHIKESH CHAPALGAONKAR BUT LATER DURING THE 3 ITA NO. 2 269/PN/2012, SACHIN S. CHAPALGAONKAR, PUNE YEAR AND PART OF THE AMOUNT WAS RECEIVED BY CHEQUE. THE ASSESSEE ALSO PAID THE AMOUNT TO MR. PRAKASH ATMARAM KETKAR TO BE PAID TO ULTIMATE SELLER. THE ASSESSEE FILED THE MOBILE NO. OF MR. PRAKASH ATMARAM KETKAR (AGENT) AND MR. RUSHIKESH CHAPALGAONKAR (ULTIMATE BUYER) AND ONE MR. ISMAIL HOOSEN J A NJIRKAR AND MR. KULDEEP BHANDKAR ( AGE NT). THE ASSESSEE FILED THE DETAILS OF THE PAYMENT WHICH ARE REPRODUCED IN THE ORDER OF THE LD. CIT(A) ON PAGE NOS. 6, 7 AND 8. THE DETAILS AND ADDITIONAL EVIDENCE WAS FORWARDED TO THE ASSESSING OFFICER FOR HIS COMMENT AND THE ASSESSING OFFICER FURNISHED HIS REPLY. IT APPEARS THAT THE ASSESSEE ALSO FILED SOME ADDITIONAL EVIDENCE S ON 06 - 08 - 2012, AFTER THE REPORT OF THE ASSESSING OFFICER WAS GIVEN TO THE ASSESSEE. ON PERUSAL OF THE ORDER OF LD. CIT(A), IT IS SEEN THAT THE ASSESSING OFFICER DID NOT GIVE AN Y OPPORTUNITY TO THE ASSESSEE WHILE FURNISHING THE REPORT TO LD. CIT(A). THE LD. CIT(A) HAS OBSERVED THAT THERE WAS NO ORDER FOR THE REMAND REPORT U/S. 250(4) OF THE INCOME - TAX ACT FOR CARRYING THE VERIFICATION BUT MERELY IT WAS A RESPONSE OF THE ASSESSIN G OFFICER WHICH WAS CALLED BY THE LD. CIT(A). THE LD. CIT(A) HAS ALSO DECLINED TO ACCEPT THE ADDITIONAL EVIDENCES SECOND TIME FILE D BY THE ASSESSEE ON 06 - 08 - 2012 . A CTING ON THE REPORT OF THE ASSESSING OFFICER , T HE LD. CIT(A) CONFIRMED THE ORDER OF THE AS SESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 5 . WE HAVE HE A RD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE ADDITION IS BASED ON THE INFORMATION RECEIVED FROM AIR . T HE ASSESSEE COULD NOT FILE THE REQUIRED EV IDENCES EXPLAINING THE SOURCE OF DEPOSITS IN THE BANK ACCOUNT BUT BEFORE THE LD. CIT(A) , HE FILED THE EXPLANATION AS WELL AS THE DETAILS OF THE LAND TRANSACTIONS WHICH HAVE BEEN DONE BY HIM ON WHICH HE GOT THE COMMISSION. EVEN THOUGH THE LD. CIT(A) CALLED THE COMMENTS OF THE ASSESSING OFFICER BUT IT WAS NOT IN THE FORM OF REMAND ORDER AND WHEN THE ASSESSING OFFICER SENT HIS RESPONSE/REPORT TO THE CIT(A) THAT WAS WITHOUT HEARING THE ASSESSEE. IT APPEARS THAT AFTER GETTING COPY OF THE 4 ITA NO. 2 269/PN/2012, SACHIN S. CHAPALGAONKAR, PUNE ASSESSING OFFICERS RE PORT FROM THE CIT(A), THE ASSESSEE ALSO FILED ADDITIONAL EVIDENCES WHICH THE CIT(A) DECLINED TO ACCEPT AS IN HIS OPINION ASSESSEE SHOULD NOT HAVE FILED EVIDENCE IN PIECEMEAL BASIS. IN THE BACKGROUND OF THIS CASE AND AFTER CONSIDERING AFFIDAVIT FILED BY TH E ASSESSEE DATED 30 - 01 - 2014 IN WHICH THE ASSESSEE HAS EXPLAINED THE SOURCE OF THE DEPOSITS INTO THE BANK ACCOUNT , W E CONSIDER IT FIT TO RESTORE THE ENTIRE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION S TO DECIDE THE ISSUE AFRESH AFTER CONSIDER ING THE EVIDENCES FILED BY THE ASSESSEE EXPLAINING THE SOURCE OF DEPOSITS INTO HIS BANK ACCOUNT. THE LD. DR HAS NO OBJECTION FOR REMITTING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. NEEDLESS TO SAY THE ASSESSING OFFICER SHOULD GIVE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, GROUNDS TAKEN BY THE ASSESSEE ARE ALLOW FOR THE STATISTICAL PURPOSES. 6 . IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURP OSES. PRONOUNCED IN THE OPEN COURT ON 28 - 0 2 - 201 4 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 28 TH FEBRUARY, 2014 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - V, PUNE 4 THE CIT - V, PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE