Shri Rajesh P. Joshi, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-4(2), RAJKOT-GUJARAT

ITA 286/RJT/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6814 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-06-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 28-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B D GARSAR
• Assessee Lawyers: DR ADHIA
• Keywords: Unexplained investment; Assessment record
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO.286/RJT/2014 ASSESSMENT YEAR : 2001-02 RAJESH P. JOSHI DINESH NIVAS, 1-JUNCTION PLOT, HOUSING SOCIETY, RAJKOT PAN : ABKPJ 8344 B ( / APPELLANT) THE I.T.O. WARD-4(2), RAJKOT / RESPONDENT / ASSESSEE BY SHRI D.R. ADHIA, AR / REVENUE BY SHRI B.D. GARSAR, DR / DATE OF HEARING 11.06.2014 !'# / DATE OF PRONOUNCEMENT 16.06.2014 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE O RDER DATED 04.02.2014 OF LD. CIT(A)-III, RAJKOT CONFIRMING THE ADDITION OF RS.1, 30,000/- MADE BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2001-02. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS IN DIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, THE ASSESSING OFFICER ORIGINALLY MADE THE ASSESSMENT U/S 143(3) R.W.S. 147 OF THE INCOME-TAX ACT ON 24.03.2006, DETERMININ G THE TOTAL INCOME OF RS.2,22,202/-. IN THIS ASSESSMENT ORDER THE ASSESSI NG OFFICER MADE ADDITION OF RS.1,30,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FDRS. THE ASSESSEE AGITATED THE ASSESSMENT ORDER AND THE MATTER WAS RE ACHED BEFORE THE ITAT. THE TRIBUNAL VIDE ITS ORDER IN ITA NO.90/RJT/2009 DATED 25.10.2010 RESTORED THE ADDITION OF RS.1,30,000/- TO THE FILE OF ASSESSING OFFICER W ITH THE FOLLOWING DIRECTIONS:- (I) TO DECIDE THE YEAR OF ADDITION AFRESH, (II) TO DECIDE THE FACT WHETHER THE ADDITION IS MAD E IN THE HANDS OF SHRI R.T. SHARMA PURSUANCE TO AFORESAID DIRECTIONS OF THE TRIBUNAL , THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 144 R.W.S. 254 ON 28.12.2 011, WHEREIN HE AGAIN MADE THE ADDITION OF RS.1,30,000/-. ON APPEAL, IN THE I MPUGNED ORDER, LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. AGGRIEVED WIT H THE ORDER OF LD.CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL, ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN NO T FOLLOWING INSTRUCTIONS OF THE MOST HON. ITAT RAJKOT AND REPEATING CONFIRMATION OF RS. 1,30,000/- MADE AS ADDITION BY THE LD. A.O. THE SAME NEEDS DELETION. 2 286-RJT-2014 RAJESH P. JOSHI 144 RWS 254 (SMC) 2. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN NOT FOLLOWING INSTRUCTIONS OF THE MOST HON. ITAT RAJKOT AND WITHOUT CONSIDERING / VER IFYING THE FACTS THAT THE ABOVE INCOME IS ASSESSED IN HANDS OF SHRI R.T. SHAR MA AT ACIT BARODA AND REPEATING ADDITION CONFIRMED OF RS. 1,30,000/-. THE SAME NEEDS DELETION. 3. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN NOT FOLLOWING INSTRUCTIONS OF THE MOST HON. ITAT RAJKOT AND WITHOUT CONSIDERING / VER IFYING THE FACTS THAT THE ABOVE INCOME IS ASSESSABLE IN THE HANDS OF THE PERS ONS IN WHOSE NAME THE FDR STANDINGS AND REPEATING ADDITION CONFIRMED OF R S. 1,30,000/-.. THE SAME NEEDS DELETION. 4. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN NOT FOLLOWING INSTRUCTIONS OF THE MOST HON. ITAT RAJKOT AND WITHOUT CONSIDERING 1 VER IFYING THE FACTS THAT THE ABOVE INCOME IS ASSESSABLE IN THE HANDS OF THE PERS ONS IN WHOSE NAME THE FDR STANDINGS PARTICULARLY WHEN THE ASSESSEE IS SER VING IN LOWER CADRE WITH BSNL RAJKOT HAD NO SCOPE TO EARN MORE INCOME AND RE PEATING ADDITION CONFIRMED OF RS. 1,30,000/-. THE SAME NEEDS DELETIO N. 5. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN NOT FOLLOWING INSTRUCTIONS OF THE MOST HON. ITAT RAJKOT AND WITHOUT CONSIDERING / VER IFYING THE FACTS THAT THE ABOVE INCOME IS ASSESSABLE IN WHICH ASSESSMENT YEAR BY OBTAINING SEIZED RECORDS AND RELEVANT INFORMATION FROM ACIT BARODA A ND REPEATING ADDITION CONFIRMED OF RS. 1,30,000/-. THE SAME NEEDS DELETIO N. 6. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY, FACTUAL AND ADMINISTRATIVE ASPECTS, NO ADDITION OF RS.1,30,000/- OUGHT TO HAVE BEEN CONFIRMED. THE ADDITIONS NEED DELETION. 7. WITHOUT PREJUDICE, THE BENEFIT OF TELESCOPING OF INTANGIBLE ADDITIONS THOUGH AVAILABLE HAS NOT BEEN GRANTED AND AS SUCH THE ASSE SSMENT FRAMED IS BAD IN LAW DESERVES CANCELLATION. 8. ALTHOUGH THE ASSESSEE FURNISHED WRITTEN SUBMISSI ONS ON 4-2-2014, I.E. ON THE DATE OF HEARING FIXED BEFORE THE LD. CIT(A) AND ALSO POSSESS RECEIPT ISSUED BY HIS OFFICE, YET THE LD. CIT(A) HAS PREFER RED TO REMAIN SILENCE ON THE ISSUE AND HAS ALSO ERRED IN NOT CONSIDERING THE SAM E AND PASSED THE APPELLATE ORDER WITHOUT DOING SO, COMPELLING THE AP PELLANT TO PREFER APPEAL BEFORE THE HON. ITAT AND TO INCUR EXPENSES FOR FILI NG APPEAL FEE BEFORE THE HON. ITAT FOR NO FAULT ON HIS SITE. THE APPELLATE O RDER BEING BAD IN LAW DESERVES ANNULMENT AND ALSO THE APPEAL FEES OF RS. 2,230/-- PAID BY THE APPELLANT MAY KINDLY BE ORDERED TO BE REFUNDED TO T HE APPELLANT. 9. WITHOUT PREJUDICE, THE ASSESSMENT CONFIRMED IS BAD IN LAW AND DESERVES ANNULMENT. 10. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIENT AND REASONABLE OPPORTUNITY HAS BEEN PROVIDED WHILE PASSING ASSESSMENT ORDER. THE A SSESSMENT NEEDS ANNULMENT. 11. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIENT AND REASONABLE OPPORTUNITY HAS BEEN PROVIDED WHILE PASSING APPEAL ORDER. THE ASSES SMENT NEEDS ANNULMENT. 12. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND A ND/OR SUBSTITUTE ANY OR ALL GROUND OF APPEAL BEFORE THE ACTUAL HEARING TAKES PL ACE. 3. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E SHRI D.R. ADHIA, AR, APPEARED AND PRODUCED A COPY OF DECISION OF THE TRI BUNAL IN ASSESSEES OWN CASE FOR AY 2001-02 IN ITA NO.90/RJT/2009 DATED 25.10.20 10, WHEREIN WHILE REMANDING 3 286-RJT-2014 RAJESH P. JOSHI 144 RWS 254 (SMC) ADDITION OF RS.1,30,000/- TO THE FILE OF THE ASSESS ING OFFICER, THE TRIBUNAL GAVE THE FOLLOWING DIRECTIONS:- IN THE CIRCUMSTANCES, I AM OF THE CONSIDERED OPIN ION, THAT THE MATTER REQUIRES READJUDICATION. THE MATTER IS ACCORDINGLY RESTORED TO THE FILE OF THE ASSESSING OFFICER. HE IS DIRECTED TO DECIDE ON THE YEAR OF ADDITION AFRESH AS ALSO THE FACT WHETHER THE ADDITION IS MADE IN THE H ANDS OF SHRI R T SHARMA. IF THE ADDITION IS MADE IN THE HANDS OF SHRI R T SHARM A, NO ADDITION SHOULD BE MADE OF THE SAME AMOUNT IN THE HANDS OF THE ASSESSE E AND THAT WHETHER SHRI SHARMA CONTESTED THE ADDITION IS TOTALLY IRRELEVANT WHILE DECIDING THE ADDITION IN THE HANDS OF THE ASSESSEE. 4. REFERRING TO AFORESAID DIRECTIONS, THE LD. COUNS EL OF THE ASSESSEE POINTED OUT THAT THE ASSESSING OFFICER WITHOUT MAKING VERIFICAT ION FROM THE ASSESSMENT RECORD OF SHRI R. T. SHARMA, CONFIRMED THE ADDITION OF RS.1,3 0,000/-. HE SUBMITTED THAT THIS ADDITION OF RS.1,30,000/- WAS MADE IN THE HANDS OF SHRI R T SHARMA AS WELL AS IN THE HANDS OF ASSESSEE. ON IDENTICAL FACTS, THE TRIBUNA L IN THE CASE OF SHRI HARESH PRAVINKANT JOSHI FOR THE AY 2000-01 IN ITA NOS. 459 & 795/RJT/2010 VIDE ORDER DATED 21.12.2012 RESTORED THE MATTER TO THE FILE OF THE A SSESSING OFFICER WITH THE FOLLOWING DIRECTIONS:- 7. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE TRIBUNAL IN ASSESSEES OWN CASE IN HARESH PRAVINKANT JOSHI V/S ITO (SUPRA) RES TORED THIS ISSUE TO THE FILE OF THE AO WITH A DIRECTION THAT IF THE ADDITION IS MADE IN THE HANDS OF SHRI R. T. SHARMA NO ADDITION SHOULD BE MADE OF THE SAME A MOUNT IN THE HANDS OF THE ASSESSEE. BEFORE US, THE LD. COUNSEL OF THE AS SESSEE FAIRLY ACCEPTED THAT ONLY THOSE ADDITION SHOULD BE DELETED WHICH HAS AT TAINED FINALITY IN THE HANDS OF SHRI R.T.SHARMA. WE, THEREFORE, SET ASIDE THE ADDITION OF RS.7,50,000/- AND RS.26,055/- TO THE FILE OF THE AO WITH A DIREC TION THAT THE UNEXPLAINED INCOME WHICH IS DOUBLING TO TAX AND SHRI R.T. SHARM A ACCEPTED THE SAME, THE ADDITION MADE IN THE HANDS OF THE ASSESSEE BE DELET ED. FOR THIS PURPOSE THE ASSESSEE SHALL FURNISH ALL THE DETAILS AVAILABLE WI TH HIM. THE AO IS ALSO FREE TO MAKE NECESSARY INQUIRY AND CROSS-VERIFICATION FROM THE ACIT, CIRCLE-6, BARODA UNDER WHOSE JURISDICTION THE SHRI R.T..SHAR MA IS ASSESSED TO TAX. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE FACTS AND CIRCUMSTANCES OF THE ASSESSMENT YEAR UNDER APPEAL ARE SAME; THEREFOR E, THE MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TH AT THE UNEXPLAINED INCOME WHICH IS DOUBLING TO TAX AND SHRI R.T. SHARMA ACCEPTED THE S AME, THE ADDITION MADE IN THE HANDS OF THE ASSESSEE BE DELETED. HE FURTHER SUBMI TTED THAT FOR THIS PURPOSE THE ASSESSING OFFICER CAN MAKE NECESSARY INQUIRY AND CR OSS-VERIFICATION FROM THE ACIT, CIRCLE-6, BARODA UNDER WHOSE JURISDICTION SHRI R.T. SHARMA IS ASSESSED TO TAX. 4 286-RJT-2014 RAJESH P. JOSHI 144 RWS 254 (SMC) 5. ON THE OTHER HAND, SHRI B.D. GARSAR, DR, APPEARE D ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(A). HE S UBMITTED THAT THE ONUS IS ON THE ASSESSEE TO FURNISH THE NECESSARY DETAILS AND SINCE THE REQUIRED DETAILS WERE NOT FURNISHED, THE ASSESSING OFFICER HAVE NO OPTION BUT TO REASSESS THE INCOME AS ORIGINALLY ASSESSED IN ASSESSMENT ORDER DATED 24.03 .2006 U/S 143(3) R.W.S. 147 OF THE INCOME-TAX ACT. 6. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IF ADDITION OF RS.1,30,000/- WAS MADE IN THE HANDS OF THE ASSESSEE AS WELL AS IN THE HANDS OF SHRI R.T. SHARMA AND SHR I R.T. SHARMA FINALLY ACCEPTED THE ADDITION OF RS.1,30,000/- IN HIS HANDS, IN THAT EVENT THERE IS NO JUSTIFICATION WHATSOEVER FOR MAKING ADDITION OF RS.1,30,000/- IN THE HANDS OF THE ASSESSEE. KEEPING IN VIEW OF THESE CONSPICUOUS FACTS OF THE C ASE, I REMAND THE ADDITION OF RS.1,30,000/- TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER SHALL MAKE NECESSARY INQUIRY AND CROSS-VERI FICATION FROM THE ACIT, CIRCLE-6, BARODA UNDER WHOSE JURISDICTION SHRI R.T. SHARMA IS ASSESSED TO TAX AND THEREAFTER RE-ADJUDICATE THIS ADDITION AFRESH IN ACCORDANCE WI TH LAW. 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 16.06.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- RAJESH P. JOSHI, DINESH NIVAS, 1-JU NCTION PLOT HSG SOC., RAJKOT 2. / RESPONDENT- THE I.T.O., WARD-4(2),RAJKOT 3. ,0,1 * * 2 / CONCERNED CIT-II, RAJKOT 4. * * 2- / CIT(A)-III, RAJKOT 5 . 567 1, * 1#, !$ / DR, ITAT, RAJKOT 6 . 79 :; / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT