Sh. Shaily Taluja, Meerut V. ACIT, Meerut

ITA 2530/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7127 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 08-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 05-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

I.T.A .NO.-2530/DEL/2016 SHAILY TALUJA VS ACIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2530/DEL/2016 (ASSESSMENT YEAR-2011-12) SHAILY TALUJA, PROP.M/S J.K. POULTRIES, 226/1, DELHI ROAD, GURUNANAK NAGAR, MEERUT. PAN-ACGPT1305H ( APPELLANT) VS ACIT, CIRCLE-2, MEERUT. (RESPONDENT) ASSESSEE BY SH. R.K.GARG, CA REVENUE BY SH. F.R.MEENA, SR.DR DATE OF HEARING 08 . 11 .2016 DATE OF PRONOUNCEMENT 03 . 01 .201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 07.03.2016 OF CIT(A), MEERUT PERTAINING TO 201112 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THAT UNDER THE FACTS & CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT (APPEALS) HAS ERRED TO CONFIRM AN ADDITION OF RS.8,02,190/- U /S 68 TREATING THE DEPOSIT IN BANK AS UNEXPLAINED. THE ADDITION IS ARBITRARY, UNJ UST, UNCALLED-FOR, ILLEGAL AND IN ANY CASE HIGHLY EXCESSIVE. 2. THAT CONFIRMATION OF ADDITION WITHOUT ANY MATE RIAL ON RECORD IS ARBITRARY, UNJUST, UNCALLED-FOR, ILLEGAL AND AGAINST THE PRINC IPLE OF EQUITY AND NATURAL JUSTICE. 3. THAT THE LEARNED ASSESSING AUTHORITY HAS CONFI RMED THE ADDITION U/S 68, WHICH IS NOT APPLICABLE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. THE CONFIRMATION OF ADDITION IS ARBITRARY, UNJUST, UNCALLED-FOR, ILL EGAL AND IN ANY CASE HIGHLY EXCESSIVE. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE AS PROPRIETOR OF J.K. POULTRY WAS ALSO PLYING TRUCKS APART FROM BEING ENGAGED IN POUL TRY BUSINESS. CONSIDERING THE RETURN FILED AND NOTING THAT THE ASSESSEE HAD MADE SEVERAL CASH DEPOSITS IN HIS BANK ACCOUNT WITH SOUTH INDIAN BANK, MEERUT THE ASSESSING OFFIC ER REQUIRED THE ASSESSEE TO EXPLAIN THE SAME VIDE ORDER SHEET ENTRY DATED 31.01.2014. IN RE SPONSE TO THE SAME, THE ASSESSEE AS PER RECORD GAVE THE FOLLOWING EXPLANATION BEFORE TH E ASSESSING OFFICER:- THAT AS REGARDS, THE ENTRIES OF SOUTH INDIAN BANK, IT HAS ALREADY BEEN SUBMITTED THAT THIS ACCOUNT WAS IN THE JOINT NAME, WHICH WAS CLOSED IN MARCH 2012 AND COPY OF BANK STATEMENT IS NOT AVAILABLE, IN WHICH T HE DEPOSIT/WITHDRAWALS ARE MADE. DEPOSIT AND WITHDRAWALS REPRESENTS GROSS RECE IPTS AGAINST TRUCK PLYING AND WITHDRAWALS FOR EXPENSES PAID TO DRIVER, CLEANE R, DIESEL, REPAIR MAINTENANCE PAGE 2 OF 4 I.T.A .NO.-2530/DEL/2016 SHAILY TALUJA VS ACIT AND OTHER INCIDENTAL AND PERTAINING CHARGES IN RESP ECT OF TRUCK RUNNING. SOMETIMES THE DEPOSIT AND WITHDRAWAL HAS ALSO BEEN MADE BY SMT. MANI TALUJA WIFE OF THE ASSESSEE, ASSESSEE IS NOT EVEN IN THE K NOWLEDGE OF THE CREDIT/DEBIT ENTRIES MADE DURING THE AFORESAID YEAR. ' 2.1. NOT CONVINCED WITH THE EXPLANATION OFFERED, AN ADDITION OF RS.8,02,190/- (AS A DIFFERENCE OF RS.28,02,190 - RS.20,00,000/-) WAS AD DED IN THE HANDS OF THE ASSESSEE BY THE AO HOLDING AS UNDER:- THE ABOVE REPLY OF THE ASSESSEE HAS BEEN EXAMINED. IN RESPECT OF CASH DEPOSITS TOTAL 28,02,190/- THE ASSESSEE HAS STATED THAT THE SAVING BANK ACCOUNT WAS IN JOINT NAME AND WAS CLOSED IN MARCH, 2012 AND , THEREFORE, COPY OF BANK STATEMENTS COULD NOT BE FURNISHED. HOWEVER, IT WAS SUBMITTED THAT THE DEPOSITS AND WITHDRAWALS IN THE SOUTH INDIAN BANK ACCOUNT RE PRESENT THE GROSS RECEIPT AND EXPENSES FROM THE PLYING OF TRUCKS. IN SUPPORT OF THE SAME HE SUBMITTED A RECEIPTS AND PAYMENTS ACCOUNTS IN RESPECT OF HIS TR ANSPORT BUSINESS THE INCOME FROM WHICH HAS BEEN DECLARED ON ESTIMATED BASIS U/S 44AE. AS ALREADY DISCUSSED, THE RECEIPTS FROM TRANSPORT B USINESS AMOUNTING TO RS.20 LACS HAVE BEEN; CREDITED TO THE ASSESSEE'S BA NK A/C WITH SOUTH INDIAN BANK. HOWEVER, NO EXPLANATION HAS BEEN \ FURNISHED BY HIM IN SPITE OF REPEATED OPPORTUNITIES PROVIDED TO THE ASSESSEE ABOUT THE RE MAINING ; CASH DEPOSITS IN THE SAID BANK A/C. 2.2. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFOR E THE CIT(A)., HOWEVER, FOR WANT OF EVIDENCE, THE ADDITION MADE BY THE AO WAS UPHELD. THE SPECIFIC EXTRACT FROM THE DECISION IS REPRODUCED HEREUNDER FOR READY REFERENCE:- ..DURING THE APPEAL PROCEEDINGS THE AR WAS ASKED TO PRODUCE THE BANK ACCOUNT SO AS TO SUBSTANTIATE HIS ARGUMENT S. IN THIS REGARD THE APPELLANT WAS SPECIFICALLY ASKED TO FURNISH THE COP Y OF BANK STATEMENT VIDE THIS OFFICE LETTER DATED 30.11.2015 BUT SO FAR NO RESPON SE HAS BEEN RECEIVED. ANOTHER NOTICE FIXING THE CASE FOR 02.03.2016 WAS GIVEN BUT THE AR ATTENDED ON 03.03.2016 AND REPEATED EARLIER SUBMISSIONS AND NO MATERIAL WAS BROUGHT ON RECORD THAT COULD LEAD ME TO DRAW AN ALTERNATIVE CO NCLUSION. THUS, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES THERE IS NO THING ON RECORD TO SUGGEST EVEN REMOTELY THAT THE APPELLANT MADE ANY EFFORT TO OBTA IN THE COPY OF BANK ACCOUNT FROM THE CONCERNED BANK. NO REQUEST HAS BEEN MADE BY THE APPELLANT BEFORE ME TO SUPPLY . COPY OF THE BANK ACCOUNT (EMPHASIS PROVIDED) 3. AGGRIEVED, THE ASSESSEE IS BEFORE THE ITAT. THE LD.AR SUBMITTED THAT RIGHT FROM THE ASSESSMENT STAGE, HE HAS BEEN ASKING THE TAX AU THORITIES FOR PROVIDING HIM WITH AIR INFORMATION SUPPOSEDLY PICKED UP BY THEM. IT WAS H IS SUBMISSION THAT HIS ATTEMPTS TO SEEK THE DETAILS FROM THE BANK WERE NOT SUCCESSFUL. IT WAS SUBMITTED THAT THIS ARGUMENT HAD BEEN RAISED EVEN BEFORE THE CIT(A) AND HE FAILED TO ADDRESS IT. IT WAS POINTED OUT BY THE LD. SR.DR THAT THE CIT(A) HAS GIVEN AN UNAMBIGUOUS FINDING THAT NO REQUEST HAS BEEN PAGE 3 OF 4 I.T.A .NO.-2530/DEL/2016 SHAILY TALUJA VS ACIT MADE BY THE APPELLANT TO SUPPLY COPY OF THE BANK AC COUNT. THE LD.AR OBJECTED THAT IT WAS A WRONG OBSERVATION IN THE ORDER AND SINCE EVEN BEF ORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE WAS REPRESENTED BY HIM HE WAS READY TO FIL E AN AFFIDAVIT IN SUPPORT OF ITS STAND. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDERE D THE MATERIAL AVAILABLE ON RECORD. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE , I AM OF THE VIEW THAT THE UNSUPPORTED ARGUMENT OF THE ASSESSEE THAT HIS ATTEMPTS FROM SEE KING THE DETAILS FROM THE TAX AUTHORITIES WERE NOT SUCCESSFUL, CANNOT BE ACCEPTED AS NEITHER ANY EVIDENCE IN SUPPORT OF THE SAID CLAIM HAS BEEN MADE NOR IS THE NEED FOR THE ASSESS EE TO SEEK IT FROM THE TAX AUTHORITIES UNDERSTOOD. THE SPECIFIC BANK ACCOUNT IS OWNED BY THE ASSESSEE AS HIS ACCOUNT. THUS, ADMITTEDLY HE IS NOT A STRANGER AND WOULD BE WELL W ITHIN HIS RIGHTS TO OBTAIN A COPY FROM THE BANK. THE DETAILS OF DEPOSITS AND WITHDRAWALS IN T HE BANK ACCOUNT OF THE ASSESSEE ARE LOGICALLY PRESUMED TO BE AVAILABLE WITH THE ACCOUNT HOLDER AND EVEN IN THE EVENTUALITY OF MISPLACING THE PASS BOOK, NO IMPEDIMENT TO PROCURIN G A DUPLICATE PASS BOOK CAN BE SAID TO BE IN EXISTENCE. IT IS WELL UNDERSTOOD THAT THE DE TAILS OF THE SPECIFIC BANK ACCOUNT EVEN IF CLOSED SUBSEQUENTLY WOULD NECESSARILY BE AVAILABLE WITH THE BANK. NO EVIDENCE HAS BEEN FILED BY THE ASSESSEE EITHER BEFORE THE ITAT OR BEF ORE THE TAX AUTHORITIES TO DEMONSTRATE WHAT EFFORTS, IF ANY, WERE MADE TO SEEK A COPY OF H IS BANK PASS BOOK FROM HIS BANK. THE GENERAL ARGUMENT ADVANCED THAT THE BANK HAS REFUSED TO PROVIDE A COPY OF THE OLD PASS BOOK CANNOT BE ACCEPTED WITHOUT ANY EVIDENCE. THE BANKS WHETHER PRIVATE OR NATIONALIZED UNDER THE LAWS OF THE LAND ARE OBLIGED ON A TOKEN P AYMENT (TO BE FIXED BY THE BANK FOR THE CHARGE INVOKED FOR LABOUR INVOLVED) IN PROVIDING DU PLICATE COPY OF SAVING BANK ACCOUNT IN CASE OF A WRITTEN REQUEST FOR ISSUANCE OF A DUPLICA TE PASS BOOK. THE BLANKED STATEMENT THAT THE BANK REFUSED TO PROVIDE COPY OF THE SAVING BANK ACCOUNT CANNOT BE COUNTENANCED AS THE ACT OF NOT PROVIDING THE SAME MAY MAKE THE B ANK LIABLE FOR OBSTRUCTION IN THE DELIVERY OF JUSTICE. THE ASSESSEE IF SO CONSIDERED NECESSARY WOULD ALSO BE AT LIBERTY TO REQUEST THE TAX AUTHORITIES TO PROVIDE HIM WITH A COPY OF THE AIR INFORMATION AVAILABLE WITH THEM. PAGE 4 OF 4 I.T.A .NO.-2530/DEL/2016 SHAILY TALUJA VS ACIT 5. ACCORDINGLY, IN THE INTERESTS OF SUBSTANTIAL JUS TICE AND IN VIEW OF THE ABOVE REASONING, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT ABUSED BY THE ASSESSEE AND IS USED FAIRLY BY MAKING FULL AND PROPER COMPLIANCE BEFORE THE CIT(A) AS FAILING WHICH THE L D.CIT(A), IT IS MADE CLEAR WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MA TERIAL AVAILABLE ON RECORD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 RD OF JANUARY 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI