Vivek Sharma, Lucknow V. Income Tax Officer-1(4), Lucknow

ITA 283/LKW/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0566 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: DHARMENDRA KUMAR
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW SMC BENCH, LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER ITA NO. 283/LKW/2016 ASSESSMENT YEAR: 2011 - 12 VIVEK SHARMA B - 39, BRAHMAPURI FAIZABAD ROAD LUCKNOW V. INCOME TAX OFFICER 1(4) LUCKNOW PA N: BFZPS2030D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI DHARMENDRA KUMAR, FCA RESPONDENT BY: SHRI MANOJ KUM AR GUPTA , D.R. DATE OF HEARING: 04 12 2017 DATE OF PRONOUNCEMENT: 08 12 2017 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - 1. THAT LD. COMMISSIONER (APPEALS) FAILED TO CONSIDER THE FACT AND SUBMISSION OF APPELLANT CORRECTLY AND IN RIGHT PERSPECTIVE. 2. THAT LD. COMMISSIONER (APPEALS) ARBITRARILY IGNORED THE SUBMISSION OF APPELLANT DATED 29 - 02 - 2016 ARID CONFIRMATION LETTERS FROM SUPPLIERS AND CUSTOMERS FILED ON AFORESA ID IN RESPECT OF HIS BUSINESS INCOME BEFORE HIM DURING APPEAL PROCEEDINGS. 3. THAT LD. COMMISSIONER (APPEALS) ARBITRARILY IGNORED THE SPECIFI C REQUEST OF APPELLANT FOR VERIFICATION OF CONFIRMATION LETTERS FROM SUPPLIERS AND CUSTOMERS FILED ON AFORESAID SAID IN RESPECT OF HIS BUSINESS INCOME. 4. THAT LD. LOWER AUTHORITY ARBITRARILY IGNORED THE 'DATE - WISE CASH FLOW STATEMENT' AND OTHER EVIDENCE S IN RESPECT OF SOURCES OF CASH DEPOSIT IN BANK. 5. THAT BUSINESS INCOM E OF APPELLANT AMOUNTING TO RS.1,44,528/ - , WHICH WAS 9.91% OF TURNOVER SHOULD HAVE BEEN ACCEPTED. : - 2 - : 6. THAT ASSESSMENT OF TOTAL INCOME OF APPELLA NT AS UNDISCLOSED INCOME AT RS. 15,77,80 0 / - WHILE IGNORING THE SOURCES OF CASH DEPOSIT OF RS. 15,68,800 / - ARE AGAINST THE FACTS, ILLEGAL A ND WITHOUT JURISDICTION. 7. THAT SINCE LD. AO FAILED TO DISPOSE OF THE OBJECTION RAISED BY APPELLANT; HENCE, ASSESSMENT ORDER PASSED BY, LD.AO IS ILLEGAL, AG AINST THE LAW OF NATURAL JUS TICE AND WITHOUT JURISDICTION. 8. THAT THE APPELLANT SEEKS PERMISSION TO MODIFY AND/OR ADD ANY OTHER GROUND OR GROUNDS OF APPEAL AS THE CIRCUMSTANCES OF THE CASE MIGHT REQUIRE OR JUSTIFY. 2 . DURING THE COURSE OF HEARING, THE LD. A.R. OF THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT ASSESSEE HAS FILED ALL THE RELEVANT EVIDENCE BEFORE THE LD. CIT(A), BUT THE SAME WAS NOT PROPERLY APPRECIATED AND AFTER GIVING PART RELIEF , THE LD. CIT(A) HAS R ETAINED CERTAIN ADDITIONS ON AC COUNT OF DEPOSIT IN BANK. THE LD. A.R. OF THE ASSESSEE FURTHER CONTENDED THAT BEFORE THE ASSESSING OFFICER CERTAIN CONFIRMATIONS RELATING TO DIFFERENT ASSESSMENT YEARS WERE FILED, BUT WHEN THIS MISTAKE WAS POINTED OUT TO THE ASSESSEE BY THE LD. CIT(A) REL YING UPON THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER , ASSESSEE HAS FILED ALL THE RELEVANT CONFIRMATION LETTERS BEFORE HIM, BUT THE LD. CIT(A) , INSTEAD OF VERIFYING THE CONTENTS THEREOF , HAS RELIED UPON THE REMAND REPORT AND MADE ADDITION. THE CO PIES OF CONFIRMATION LETTERS ARE FILED BEFORE ME IN SUPPORT OF HIS CONTENTION. THE LD. A.R. OF THE ASSESSEE FURTHER CONTENDED THAT HE HAS PLACED RELEVANT EVIDENCE TO EXPLAIN THE SOURCE OF DEPOSIT IN BANKS, BUT THE SAME WERE NOT APPRECIATED BY THE LD. CIT( A) . T HEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE SENT BACK TO THE FILE OF THE LD. CIT(A) FOR CONSIDERING THE EVIDENCE FILED BY THE ASSESSEE. 3 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). : - 3 - : 4 . HAVING CAREFULL Y EXAMINED THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF RIVAL SUBMISSIONS, I FIND THAT DURING THE COURSE OF APPELLATE PROCEEDINGS, THE LD. CIT(A) HAS CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER ON THE EVIDENCE FILED BEFORE HIM FIRST TIME. TH E ASSESSING OFFICER HAS EXAMINED THE CONFIRMATIONS LETTERS FILED BY THE ASSESSEE IN THE REMAND PROCEEDINGS AND SUBMITTED HIS REPORT. CERTAIN CONFIRMATION LETTERS FILED BY THE ASSESSEE RELATE TO DIFFERENT ASSESSMENT YEARS AND THE ASSESSING OFFICER HAS TAKE N COGNIZANCE OF THE SAME AND RECOMMENDED FOR ADDITION FOR THOSE CASH DEPOSITS. DURING THE COURSE OF HEARING, THE LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT BY MISTAKE HE HAS FILED DIFFERENT CONFIRMATION LETTERS RELATING TO DIFFERENT ASSESSMENT YEARS DURI NG THE REMAND PROCEEDINGS. ONCE HE REALIZED THE MISTAKE, HE HAS FILED CORRECT LETTERS BEFORE THE LD. CIT(A), BUT UNFORTUNATELY COGNIZANCE OF THE SAME WERE NOT TAKEN BY THE LD. CIT(A) . I HAVE CAREFULLY EXAMINED THE SAID CONFIRMATION LETTERS AND I FIND THA T ASSESSEE HAS FILED EVIDENCE TO PROVE THE GENUINENESS OF THE DEPOSITS IN BANK, BUT UNFORTUNATELY IT WAS NOT EXAMINED BY THE LOWER AUTHORITIES. UNDER THESE CIRCUMSTANCES, I AM OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE AFFORDED TO THE ASSESSEE TO PRO VE HIS CASE. ACCORDINGLY, I SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF THE EVIDENCE FILED BY THE ASSESSEE. IF NEED BE, REMAND REPORT MAY ALSO BE CALLED BY TH E LD. CIT(A). ACCORDINGLY , THIS APPEAL IS DISPOSED OF. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION ED PAGE. SD/ - [ S UNIL KUMAR Y ADAV ] JUDICI AL MEMBER DATED: 8 TH DECEMBER, 201 7 JJ: 0412 : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR