Tarachand Agarwalla, Mayurbhanj V. ITO, Baripada

ITA 227/CTK/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52359 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 09-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2011
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: N GUPTA
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 227 AND 228/CTK/2011 (ASSESSMENT YEAR 2005 - 06) 1 . TARACHAND AGRAWAL , RAIRANGPUR, MAYURBHANJ. PAN: ACUPA 2349 E 2 . BIMAL KRISHNA MOHANTY , S/O. LATE GURU KRUSHNA MOHANTY, W.NO.15, RAIRANGPUR, MAYURBHANJ PAN: ACMPM 7074 J VERSUS INCOME - TAX OFFICER, WARD 1, BARIPADA. (APPELLANT S ) (RESPONDENT) FOR THE APPELLANT S : SHRI N.GUPTA, AR FOR THE RESPONDENT SHRI S.C.MOHANTY, DR DATE OF HEARING : 09.08.2011 DATE OF PRONOUNCEMENT : 12.08.2011 ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER : THESE TWO APPEALS BY RESPECTIVE ASSESSEES ARE BEING ARGUED BY A COMMON AR OF THE ASSESSEES , ARE BEIN G TAKEN UP TOGETHER INSOFAR AS ONE OF THE COMMON ISSUE OF ADDITION IS A SUM OF 5 LAKHS UNDER THE PROVISIONS OF SECTION 68 HAS BEEN HELD AS INTER CONNECTED BY THE ASSESSING OFFICER THEREFORE WAS TO BE IDENTIFIED AS THE SAME AMOUNT WHICH ALONE COULD NOT BE TAXED IN THE HANDS OF BOTH THE ASSESSEES RESPECTIVELY. 2. WE HAVE HEARD THE RI VAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON OUR CAREFUL CONSIDERATION OF THE FACTS, WE ARE INCLINED TO HOLD THAT THE ASSESSMENTS HAVE BEEN FRAMED IN THE CASE OF SHRI TARACHAND AGRAWAL U/S.144/147 WHEN ON THE ASSESSEES APPEAL BEFORE TH E FIRST APPELLATE AUTHORITY NONE APPEARED AND WAS DISMISSED IN LIMINE . IN THE CASE OF BIMAL KRISHNA MOHANTY, THE ASSESSMENT HAS BEEN PASSED U/S.143(3) WHEN THE ITA NO.227 AND 228/CTK/2011 2 ADDITION WAS APPEALED AGAINST BEFORE THE FIRST APPELLATE AUTHORITY WHERE AGAIN THE ASSESSEE FAIL ED TO APPEAR BEFORE THE LEARNED CIT(A) AND THE APPEAL WAS DISMISSED FOR WANT OF PROSECUTION. 3. AS MENTIONED ABOVE, THE COMMON ADDITION HAS BEEN MADE HAVING IDENTIFIED THE AMOUNT BEING DEPOSITED IN CASH BY ONE OF THE ASSESSEE RECEIVED BY THE OTHER AS LOAN CREDITOR HAS BEEN TAXED AS UNEXPLAINED CREDIT IN ONE OF THE ASSESSEE AND HAS BEEN TAXED AS CASH DEPOSITED PRIOR TO ISSUE OF CHEQUE IN ANOTHER. THE LEARNED AR OF THE ASSESSEE PRAYED THAT BOTH THESE ISSUES BE RESTORED TO THE FILE OF THE ASSESSING OFFICER RE SPECTIVELY BEING THE COMMON ASSESSING OFFICER WHO SHOULD HAVE AT LEAST TAKEN COGNIZANCE OF THE FACT THAT THE SAME IDENTIFIED AMOUNT COULD NOT BE TAXED TWICE SEPARATELY IN THE HANDS OF TWO INDIVIDUALS. WE FIND FORCE IN THE CONTENTION OF THE LEARNED AR OF TH E ASSESSEE AS ACCEPTABLE TO THE EXTENT THAT THE LEARNED CIT(A) HAS NOT DELIBERATED THE ISSUE ON MERIT AS NONE APPEARED BEFORE HIM FOR BOTH THE ASSESSEES. WE, THEREFORE, SET ASIDE THE ORDERS OF THE LEARNED CIT(A) IN RESPECT OF BOTH THE ASSESSEES AND RESTORE THE ISSUE TO THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF DISCUSSIONS AS MADE ABOVE. 4. IN THE RESULT, THE APPEALS OF THE RESPECTIVE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 12.08.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. ITA NO.227 AND 228/CTK/2011 3 COPY OF THE ORDER FORWARDED TO : 1. 1 . THE APPELLANT: TARACHAND AGRAWAL , RAIRANGPUR, MAYURBHANJ. PAN: ACUPA 2349 E 2 . BIMAL KRISHNA MOHANTY , S/O. LATE GURU KRUSHNA MOHANTY, W.NO.15, RAIRANGPUR, MAYURBHANJ 2. THE RESPONDENT: INCOME - TAX OFFICER, WARD 1, BARIPADA. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRU E COPY, BY ORDER, SENIOR PRIVATE SECRETARY.