SHRI JAIDEO KALE, Nagpur V. I.T.O. Ward 1(2), Nagpur

ITA 290/NAG/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2131 (ITAT-NAGPUR)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 06-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Section: 131

Judgement Text

1 ITA NO.290/NAG/2015 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 290 /NAG/201 5 . ASSESSMENT YEAR : 200 7 - 08 . SHRI JAIDEO KALE, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 1(2), NAGPUR. PAN BARPS4598B. APPELLANT. RESPONDENT. APPELLANT BY : SHRI AJAY SINGH. RESPONDENT BY : S MT. AGNES P. THOMAS. DATE OF HEARING : 21 - 07 - 2016 DATE OF PRONOUNCEMENT : 21 ST JULY, 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 14 - 07 - 2015 AND PERTAINS TO ASSESSMENT YEAR 2007 - 08. 2. THE FIRST ISSUE RAISED IS THAT THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE REOPENING OF THE CASE. BRIEF FACTS OF THE CASE ON THIS ISSUE ARE UNDER : THE ASSESSEE HAS NOT FILED RETURN OF INCOME U/S 139(1) OF THE I.T. ACT FOR ASSESSMENT YEAR 2007 - 08. IN THE COURSE OF ASSESSMENT PROCEEDINGS, IN THE CASE OF SHRI CHETAN SHIVANKAR, NAGPUR FOR ASSESSMENT YEAR 2007 - 08, THE ITO WARD - 1(4), NAGPUR FOUND THAT SHRI JAIDEO KALE, THE ASSESSEE, ONE OF THE PARTNERS OF THE FIRM M/S KALE COMMUNICATION, NAGPUR DURING THE RELEVANT FINANCIAL YEAR HAS DEPOSITED RS.12,84 , 375/ - IN THE SAVING BANK A CCOUNT OF SHRI CHETAN MILIND SHIVANKAR MAINTAINED WITH ING VYASA BANK NAGPUR BRANCH. THEREFORE, THE ITO RECORDED THE STATEMENT OF SHRI JAIDEO KALE U/S 131 ON 14 - 10 - 2009; WHEREIN 2 ITA NO.290/NAG/2015 SHRI KALE CONFESSED THAT HE HAD DEPOSITED A SUM OF RS.12,84,375/ - IN THE BANK ACCOUNT OF SHRI CHETAN MILIND SHIVANKAR, ONE OF HIS EMPLOYEES. 3. ACCORDINGL Y THE REASONS RECORDED BY THE AO WERE AS UNDER : THE ITO WD 1(4), NAGPUR HAS INFORMED THAT SHRI JAIDEO KALE HAD DEPOSITED AN AMOUNT OF RS.1284375/ - DURING THE F.Y. 2006 - 07 IN THE SAVING BANK ACCOUNT OF SHRI CHETAN MILIND SHIVANKAR, NAGPUR. SHRI JAIDEO K ALE IN HIS STATEMENT GIVEN TO THE INCOME TAX OFFICER WARD 1(4), NAGPUR HA S ADMITTED OF HAVING DEPOSITED THE A MOUNT OF RS.1284375/ - IN THE SAVING BANK ACCOUNT OF SHRI CHEAN SHIVANKAR MAINTAINED WITH ING VYSA BANK, NAGPUR, AND THAT THE CASH DEPOSITS BELONG S TO HIM ONLY. THE SAID ASSESSEE IS NOT ASSESSED TO TAX . 4. NOW THE ASSESSEE HAS URGED THAT THE ABOVE REASON FOR REOPENING IS FALLACIOUS INASMUCH AS SHRI KALE HAD CLEARLY STATED AT THE TIME OF RECORDING HIS STATEMENT THAT THE MONEY BELONG S TO THE PARTNE RSHIP FIRM M/S KALE COMMUNICATION. HENCE THE REOPENING IN THE HANDS OF THE ASSESSEE IS BAD IN LAW. IN THIS REGARD THE ASSESSEE HAS PLACED RELIANCE UPON THE CASE LAWS FROM DELHI TRIBUNAL AND AMRITSAR TRIBUNAL FOR THE PROPOSITION THAT THE ASSESSMENT PROCEEDI NGS CANNOT BE INITIATED ON FAL LA CIOUS ASSUMPTION. 5. UPON CAREFUL CONSIDERATION AND HEARING BOTH THE COUNSEL ON THIS ISSUE I FIND THAT IT IS SETTLED LAW THAT THE AO SHOULD HAVE A PRIMA FACIE REASON THAT THERE IS ESCAPEMENT OF INCOME. THERE IS NO NEED FOR T HE SAME TO BE PROVEN TO THE HILT AT THE TIME OF FORMATION OF OPINION. IT IS UNDISPUTED THAT THE REOPENING IS BASED ON A CONFESSION OF THE ASSESSEE THAT THE SAID MONEY WAS DEPOSITED BY HIM IN THE ACCOUNT OF SHRI CHETAN SHIVANKAR. THE ASSESSEE BEING A PARTNE R OF KALE COMMUNICATION HAS ALSO CONFESSED FOR NO RETURN OF THE KALE COMMUNICATION WAS FURNISHED. THOUGH THE ASSESSEE HAS ALSO STATED THAT THE MONEY BELONG S TO KALE COMMUNICATION BUT THERE WAS NO CORROBORATION OF THIS ASPECT AT THE TIME OF RECORDING OF REA SONS FOR REOPENING. HENCE THE ASSESSEE HAS ADMITTED THAT HE HAS DEPOSITED THE SAID AMOUNT IN THE BANK ACCOUNT OF SHRI CHETAN SHIVANKAR AND THE 3 ITA NO.290/NAG/2015 ASSESSEE FIRM ON WHOSE BEHALF HE WAS CLAIMING TO HAVE DEPOSITED THE AMOUNT HAD ALSO NOT FILED ITS RETURN OF INCOM E. IN SUCH SITUATION AS THE STATEMENT THAT THE MONEY BELONGED TO THE FIRM HAD NO CORROBORATION AT THAT TIME, T HE REOPENING IN THE HANDS OF THE ASSESSEE CANNOT BE SAID TO BE SUFFERING FROM LEGAL INFIRMITY. ACCORDINGLY I UPHOLD THE REOPENING IN THIS CASE. 6. AS REGARDS THE MERITS OF THE ISSUES ARE CONCERNED, IT IS THE CLAIM OF THE ASSESSEE THAT FOR A SHORT PERIOD HIS FIRM M/S KALE COMMUNICATION WAS NOT HAVING BANK ACCOUNT. HENCE THE SUM OF RS.12,84,375/ - WAS DEPOSITED BY HIM IN THE ACCOUNT OF HIS EMPLOYEE. FROM THERE THE ASSESSEE HAS ALSO CLAIMED TO HAVE INCURRED EXPENDITURE OF RS.12,53,8 3 9/ - . THIS ASPECT OF ASSESSEES CLAIM WAS NOT ACCEPTED BY THE AUTHORITIES BELOW ON THE PREMISE THAT NO CORROBORATIVE EVIDENCE IN THIS REG A RD HAS BEEN FURNISHED BY THE ASSESS EE. HOWEVER, BEFORE ME LEARNED COUNSEL OF THE ASSESSEE GAVE SUBMISSIONS AND VOUCHERS WITH RELATION TO THE SAID CLAIM OF EXPENDITURE AND ALSO COPY OF WRITTEN SUBMISSIONS SAID TO BE BEFORE THE LEARNED CIT(APPEALS) WHERE IN THIS ASPECT HAS BEEN CLAIMED TO HAVE BEEN SUBMITTED BEFORE THE AUTHORITIES BELOW. 7. PER CONTRA, LEARNED D. R . SUBMITTED THAT THE AUTHORITIES BELOW HAVE CATEGORICALLY RECORDED THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE. 8. UPON CAREFUL CONSIDERATION I FIND THAT SINCE THE ASSESSEE HAS SUBMITTED CERTAIN EVIDENCES OF THE CLAIM THAT SUM OF RS.12 ,53, 839 / - WAS INCURRED IN RELATION TO BUSIN E SS OF THE FIRM KALE COMMUNICATION OUT OF THE SAID CASH DEPOSIT OF RS.12,84,375/ - , I HOLD THAT THE INTEREST OF JUSTICE WILL BE SERVE D IF THIS ASPECT AND THE SUBMISSION S OF THE LEARNED COUNSEL OF THE ASSESSEE ARE EXAMINED BY THE AO AFRESH. ACCORDINGLY THE ISSUE IS REMITTED TO THE FILE OF THE AO. THE AO IS 4 ITA NO.290/NAG/2015 DIRECTED TO EXAMINE THE VERACITY OF ASSESSEES SUBMISSION AND CLAIM AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE. 9. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF JULY,2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 21 ST JULY, 2016. COPY FORWARDED TO : 1. SHRI JAIDEO K ALE, ANAND BHAWAN, BALRAJ MARG, DHANTOLI, NAGPUR - 440012. 2. I.T.O., WARD - 1(2), NAGPUR. 3. C.I.T. - I, NAGPUR. 4. CIT(APPEALS), - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGIS TRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.