Smt. Meena Jain, Indore V. The CIT-I, Indore

ITA 29/IND/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7145 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 01-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 02-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KESHAV SAXENA
• Keywords: Income from undisclosed sources; Accommodation entries
• Section: 143(3); 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C.SHARMA, ACCOUNTANT MEMBER ITA NO. 29/IND/2011 A.Y.2006-07 SMT. MEENA JAIN INDORE PAN ABNPJ-7307F :: APPELLANT VS COMMISSIONER OF INCOME TAX-I INDORE :: RESPONDENT APPELLANT BY : SHRI AJAY TULSIYAN ALONG WITH SHRI MANISH VAIDYA RESPONDENT BY : SHRI KESHAV SAXENA, CIT DR DATE OF HEARING : 20.12.2011 DATE OF PRONOUNCEMENT : 20.12.2011 O R D E R PER JOGINDER SINGH BY WAY OF THIS APPEAL, THE ASSESSEE SEEKS TO CHALL ENGE THE ORDER OF THE LEARNED CIT-I, INDORE, DATED 31.3.2011 ON THE GROUND THAT THE LEARNED CIT WAS NOT JUSTIFIED IN HO LDING THAT THE ORDER PASSED BY THE AO U/S 143(3) OF THE ACT WA S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE AND 2 ALSO ERRED IN SETTING ASIDE THE ASSESSMENT ORDER TO MAKE THE SAME DE-NOVO. 2. DURING HEARING, WE HAVE HEARD SHRI AJAY TULSIYAN , LEARNED COUNSEL FOR THE ASSESSEE ALONG WITH SHRI MA NISH VAIDYA AND SHRI KESHAV SAXENA, LEARNED CIT DR. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSE E DECLARED TOTAL INCOME OF RS.74,58,250/- IN ITS RETURN FILED ON 31.10.2006 WHICH INCLUDES INCOME FROM BUSINESS, SHO RT TERM CAPITAL GAIN AND FROM OTHER SOURCES ALSO. THE RETU RN WAS CLAIMED TO BE ACCOMPANIED BY COMPUTATION OF INCOME, BALANCE SHEET, PROFIT AND LOSS ACCOUNT, CAPITAL ACCOUNT AND TAX AUDIT REPORT. IT WAS STRONGLY CONTENDED THAT THE ASSESSM ENT WAS FRAMED U/S 143(3) BY DISALLOWING CERTAIN EXPENSES, THEREFORE, THE LEARNED CIT EXCEEDED HIS JURISDICTION IN SETTIN G ASIDE THE REGULAR ASSESSMENT FRAMED U/S 143(3) OF THE ACT AND FURTHER IN DIRECTING THE AO TO MAKE DE-NOVO ASSESSMENT. ON THE OTHER HAND, THE LEARNED CIT DR STRONGLY DEFENDED THE IMPU GNED ORDER BY INVITING OUR ATTENTION TO THE ASSESSMENT S O FRAMED BY FURTHER SUBMITTING THAT EVEN THERE IS NO WHISPER IN THE 3 ASSESSMENT ORDER REGARDING THE DISALLOWANCES AND CL AIM OF THE ASSESSEE. THE IMPUGNED ORDER WAS DEFENDED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BR IEF, ARE THAT THE ASSESSEE DECLARED TOTAL INCOME OF RS.74,58,250/ - IN ITS RETURN FILED ON 31.10.2006. AS PER THE AO SINCE THE ASSESSEE KEEP ON SEEKING ADJOURNMENT, THEREFORE, IT WAS ADJO URNED SINE DIE AND LATER ON THE CASE WAS ASSIGNED TO THE ADDIT IONAL CIT BY THE LEARNED CIT. FRESH NOTICE U/S 143(2) WAS ISSUE D TO THE ASSESSEE TO WHICH THE ASSESSEE APPEARED AND FURNISH ED THE WRITTEN SUBMISSIONS. THE BOOKS OF ACCOUNTS WERE ALS O PRODUCED AND THE SAME WERE TEST CHECKED. THE ASSES SEE TRADED IN SHARES AND SECURITIES ALONG WITH INCOME F ROM OTHER INVESTMENT ACTIVITIES AND DIVIDENDS. THE LEARNED C IT INVOKED HIS JURISDICTION U/S 263 OF THE ACT AS ON VERIFICAT ION OF RECORD HE FOUND THAT THE ASSESSEE RECEIVED UNSECURED LOANS FROM LUNKAD GROUP OF COMPANIES AND WAS FOUND INDULGED IN PROVIDING ACCOMMODATION ENTRIES AS THIS FACT WAS RE VEALED DURING SURVEY ACTION CARRIED OUT IN SOME CASES. TH ERE IS A FURTHER FINDING THAT THESE ACCOMMODATION ENTRIES WE RE FOUND 4 IN THE ACCOUNTS OF VARIOUS BENEFICIARIES AND IT WAS ADDED AS THEIR UNACCOUNTED INCOME. THE LEARNED AO FRAMED THE ASSESSMENT WITHOUT EXAMINATION OF THESE ENTRIES, TH EREFORE, THE ORDER WAS FOUND TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THERE IS A SPECIFIC FINDI NG THAT IN RESPONSE TO SHOW CAUSE NOTICE, NO COMPLIANCE WAS MA DE ON THE BASIS OF WHICH IT WAS CONCLUDED BY THE LEARNED CIT THAT THE ASSESSEE HAS NOTHING TO SAY IN ITS DEFENCE. THE SUM AND SUBSTANCE OF THE IMPUGNED ORDER IS THAT THE AO ERRE D IN ACCEPTING THE CLAIM OF THE ASSESSEE AS GENUINE WITH OUT GOING INTO SUCH DETAILS, THEREFORE, THE ORDER IS DEFINITE LY PREJUDICIAL AND ERRONEOUS TO THE INTEREST OF REVENUE. WE FURTHE R FIND THAT THE ASSESSMENT ORDER WAS SET ASIDE AND THE ASSESSEE WAS PERMITTED TO COMPLY BEFORE THE AO. IN VIEW OF THIS UNCONTROVERTED FINDING THAT THE LUNKAD GROUP IS INV OLVED IN PROVIDING ACCOMMODATION ENTRIES, THEREFORE, WE FIND NO INFIRMITY IN THE IMPUGNED ORDER IN SETTING ASIDE FO R FRESH ADJUDICATION WITH THE DIRECTION THAT PROPER OPPORTU NITY BE PROVIDED TO THE ASSESSEE IN SUPPORT OF ITS CLAIM. IT IS NOT THE CASE THAT THE LEARNED CIT FINALLY CONCLUDED RATHER THE 5 PROCEEDINGS WERE SET ASIDE FOR FRESH ADJUDICATION. IN VIEW OF THESE FACTS, WE ARE OF THE VIEW THAT NO PREJUDICE I S CAUSED TO EITHER SIDE IF THE ASSESSEE IS IN A POSITION TO SUB STANTIATE ITS CLAIM. THE STAND OF THE LEARNED CIT IS AFFIRMED, ES PECIALLY WHEN WE HAVE FOUND THAT THE ASSESSMENT ORDER IS NON - SPEAKING ONE AND HAS BEEN FRAMED WITHOUT CONSIDERIN G THE FACTS, THEREFORE, IT IS ERRONEOUS AS WELL AS PREJUD ICIAL TO THE INTERESTS OF THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER, 2011 IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :___20 TH DECEMBER, 2011. DN/-