Basant Kumar singh, Ramgarh V. ITO WARD-2(3), Ramgarh

ITA 274/RAN/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9630 (ITAT-RANCHI)
• Duration Of Justice: 2 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHANTY
• Assessee Lawyers: M K CHOUDHARY
• Keywords: Business income; Revision of order
• Section: 142(1); 263; 144

Judgement Text

1 ITA NO. 274 /RAN/ 201 6 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE SHRI N.S.SAINI , ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER ITA NO. 274 /RAN/201 6 A.Y. : 20 09 - 20 10 BASANT KUMAR SINGH, C/O - HARI BANSH SINGH, PATEL NAGAR, BHURKUNDA, RAMGA RH, JHARKHAND V S ITO,WARD - 2(3), RAMGARH P AN NO. : A UTPS 4456 P (APPELLANT ) . RESPONDENT ASSESSEE BY : SHRI M.K.CHOUDHARY, ADVOCATE REVENUE BY :SHRI A.K.MOHANTY , JCIT DATE OF HEARING : 2 5 . 05 .201 8 DATE OF PR ONOUNCEMENT : 28 . 05 .201 8 O R D E R PER PAVAN KUMAR GADALE, JM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT ( A ) , HAZARIBAG , DATED 28.06.2016 , FOR THE ASSESSMENT YEAR 20 09 - 20 10 . 2. AT THE OUTSET, LD.AR OF THE ASSESSEE HAS FILE D AN ADJOURNMENT APPLICATION SEEKING ADJOURNMENT ON THE GROUND THAT HE HAS TO OBTAIN COMPLETE BANK ACCOUNT FROM THE BANK, WHICH IN OUR OPINION, IS NOT A PLAUSIBLE ONE, THEREFORE, WE REJECT THE ADJOURNMENT APPLICATION AND APPEAL IS HEARD FINALLY. 3 . THE A SSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1 . FOR THAT THE ORDERS OF THE LD. LOWER COURTS ARE ILLEGAL, EXCESSIVE , ARBITRARY AND BEYOND THE WEIGHT OF EVIDENCE ON 2 ITA NO. 274 /RAN/ 201 6 RECORD AS ALSO BEYOND THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS SUCH ARE NOT MAIN TAINABLE . 2 . FOR THAT THE LD, C.I.T.(A) HAS ERRED IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT ANY FINDING ON THE PASSING OF EXPARTE ASSESSMENT ORDER BY THE A.O. AS A MATTER OF FACT HE OUGHT TO HAVE CONSIDERED THAT THE A.O. PASSED THE EXPARTE ASSESSMEN T ORDER IN HOT HASTE WITHOUT ALLOWING PROPER AND REASONABLE OPPORTUNITY OF HEARING TO THE APPELLANT. 3 . FOR THAT THE LD. LOWER COURTS OUGHT TO HAVE CONSIDERED THAT EXPARTE ASSESSMENT ORDER COMPLETED U/S 144 WITHOUT SERVICE OF NOTICES OF HEARING ON THE APPELL ANT AND AS SUCH ORDERS ARE BAD IN LAW AND BEYOND THE FACTS OF THE CASE AND ARE FIT TO BE CANCELLED. 4 . FOR THAT THE LD. A.O. HAS ERRED GROSSLY IN PASSING THE ASSESSMENT ORDER U/S 144 EVEN WITHOUT SERVING MANDATORY NOTICE OF HEARING ON THE APPELLANT AND THE L D. C.L.T. (A) HAS ALSO ERRED GROSSLY IN CONFIRMING THE ORDER OF LD. LOWER COURT. 5 . FOR THAT THE LD. C.L.T. (A) HAS FAILED TO CONSIDER FULL MERITS OF THE CASE AND ERRED IN CONFIRMING THE ORDERS OF COURT BELOW. 6. FOR THAT THE LD, C.I.T. (A) HAS ALSO ERRED I N PASSING THE APPELLATE ORDER IN VIEW OF THE FACT HE PASSED ORDER U/S 263 AND HENCE HIS ORDER HAS BEEN VITIATED DUE TO IMPROPER ACTION OF THE LD, C.I.T. (A). 7. FOR THAT IN ANY VIEW OF THE MATTER ORDERS OF THE LD. LOWER COURTS ARE ILLEGAL, HIGHLY EXCESSIV E, ARBITRARY, UNJUSTIFIED AND NOT SUSTAINABLE. 8. FOR THAT THE LD. LOWER COURTS OUGHT TO HAVE CONSIDERED THAT THE BANK DEPOSITS WERE THE BUSINESS RECEIPTS OF THE APPELLANT AND NOT HIS INCOME. 9. FOR THAT IN ANY VIEW OF THE MATTER ONLY PROFIT WOULD/SHOULD HAVE BEEN ESTIMATED ON THE BANK DEPOSITS AND NOT THE ENTIRE DEPOSITS SHOULD HAVE BEEN TREATED AS INCOME AND ADDED TO THE TOTAL INCOME OF THE APPELLANT. 10. FOR THAT THE ORDERS OF THE LD. LOWER COURTS ARE OTHERWISE BAD IN LAW AND ALSO FACTS OF THE CASE. 1 1. FOR THAT OTHER GROUNDS WILL BE URGED AT THE TIME OF HEARING, 3 ITA NO. 274 /RAN/ 201 6 4 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE DERIVES INCOME FROM CAL BUSINESS AND FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 - 2010 ON 27.09.2011 WITH TOTAL INCOME OF RS. 2,36,330/ - AND THE RETURN OF INCOME WAS DULY PROCESSED U/S.143(1) OF THE ACT AND THE CASE WAS SELECTED FOR SCRUTINY. SUBSEQUENTLY, NOTICE U/S.143(2) & 142(1) OF THE ACT WERE ISSUED TO THE ASSESSEE. IN COMPLIANCE, THE AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND CASE WAS DISCUSSED . THEREAFTER THE AO COMPLETED THE ASS ESSMENT AND MADE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS AND ASSESSED TOTAL INCOME AT RS. 17,79 , 520/ - AND PASSED ORDER U/S.143(3) /263/144 OF THE ACT, DATED 29.03.2015 . 5 . AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A). IN THE APPELLATE PROCEEDINGS THE ASSESSEE ARGUED THE GROUNDS AND REITERATED THE SUBMISSIONS MADE BEFORE THE AO. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND THE FI NDINGS OF AO, DISMISSED THE APPEAL OF THE ASSESSEE. 6 . AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 7 . LD. AR BEFORE US SUBMITTED THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE ON ACCOUNT OF UNEXPLAIN ED CASH DEPOSITS. LD.AR FURTHER SUBMITTED THAT SUFFICIENT OPPORTUNITY OF HEARING HAS NOT BEEN GIVEN TO THE ASSESSEE BY BOTH THE LOWER AUTHORITIES TO SUBSTANTIATE ITS CLAIM AND PRAYED FOR ALLOWING THE APPEAL. 4 ITA NO. 274 /RAN/ 201 6 8 . CONTRA, DR RELIED ON THE ORDER OF LOWER AUTH ORITIES. 9 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE STATING THAT SUFFICIENT OPPORTUNITY WAS PROVIDED TO THE ASSESSEE IN RESPECT OF DISCLOSURE OF THE CASH DEP OSIT S IN THE SAVINGS BANK ACCOUNT. IN THE APPELLATE PROCEEDINGS THE LD. AR HAS FILED WRITTEN SUBMISSIONS AND CERTAIN INFORMATION WAS CALLED FOR. THE CIT(A) FOUND THAT THERE ARE NO BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE AND THE CIT(A) ALSO HAV E FOUND THAT THE ASSESSMENT ORDER WAS PASSED U/S.143(3) OF THE ACT AND HAS CONFIRMED THE ADDITION. WE FOUND THAT TH E ORDER WAS PASSED BY THE AO U/S.143(3)/144 OF THE ACT AND, CONSIDERING THE OVERALL ASPECTS AND THE ASSESSEE HAS NOT SUBMITT ED THE INFORMATION , THEREFORE, WE REMIT THE ENTIRE DISPUTED ISSUE TO THE FILE OF CIT(A), WHO SHALL VERIFY AND EXAMINE THE ISSUE AND PASS ORDER AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN SUBMITTING THE INFO RMATION BEFORE THE CIT(A). THUS, THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 / 05 /201 8 SD/ - SD/ - ( N.S.SAINI ) ( PAVAN KUMAR GADALE ) ACCOUNTANT MEMBER JUDICIAL MEMBER RANCHI, D ATED 28 / 05 /201 8 PRAKASH KUMAR MISHRA , SR. PS 5 ITA NO. 274 /RAN/ 201 6 COPY OF THE ORDER FORWARDED TO : BY ORDER, //TRUE COPY// SR.PS, ITAT, RANCHI 1. THE APPELLANT BASANT KUMAR SINGH, C/O - HARI BANSH SINGH, PATEL NAGAR, BHURKUNDA, RAMGARH, JHARKHAND 2. THE RESP ONDENT ITO,WARD - 2(3), RAMGARH 3. THE CIT(A) CONCERNED 4. CIT , CONCERNED 5. DR, ITAT, RANCHI 6. GUARD FILE.