Anil Babanlal Agrawal, Jalgaon V. Income-tax Officer,

ITA 299/PUN/2014

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4006 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 21-08-2018
• Assessment Year: 2002-2003
• Appeal Filed On: 14-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Principle of natural justice; Set aside
• Section: 69A; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER . / ITA NO.299/PUN/2014 / ASSESSMENT YEAR : 2002-03 SHRI ANIL BABANLAL AGRAWAL, ....... / APPELLANT 84-85, MAIN ROAD, RAVER, PIN : 425 508, DIST. JALGAON. PAN : AGOPA0351Q. / V/S. THE INCOME TAX OFFICER, / RESPONDENT WARD 2(2), JALGAON. ASSESSEE BY : SHRI SUNIL GANOO. REVENUE BY : SHRI S.P. WALIMBE. / DATE OF HEARING : 06-11-2019 / DATE OF PRONOUNCEMENT : 08 -11-2019 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 03.01.2014 PASSED BY CIT(A)-II, NASHIK FOR A.Y. 2002-03. 2. SHRI SUNIL GANOO, THE LD.A.R. SUBMITS THAT ASSESSEE HAS NO INTEREST TO PROSECUTE GROUND NOS.1, 2, 5, AND 6. TO THAT EFFECT AN ENDORSEMENT WAS MADE BY HIM AND PRAYED TO DISMISS THE SAME AS NOT PRESSED. 2 ACCORDINGLY, GROUND NOS.1, 2, 5 AND 6 ARE DISMISSED AS NO T PRESSED. GROUND NO.7 IS GENERAL IN NATURE AND REQUIRES NO ADJUDICATION FROM US. 3. WE FIND GROUND NOS.3 AND 4 ARE INTER-LINKED RAISED CHA LLENGING THE ACTION OF CIT(A) IN CONFIRMING THE ADDITION OF RS.1,45,000/- MA DE BY THE AO U/S 69 OF THE ACT, WITHOUT AFFORDING AN OPPORTUNITY OF CROSS- EXAMINATION IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CONTENTION OF SHRI SUNIL GANOO, THE LD.A.R. IS THAT THE A O MADE ADDITION OF RS.1,45,000/- U/S 69 OF THE ACT WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE FOR CROSS-EXAMINATION OF SHRI CHHORIYA BASIN G ON WHICH THE AO PROCEEDED TO MAKE ADDITION. THE LD.A.R. REFERRED TO PA RA NO.2 OF THE ASSESSMENT ORDER AND PARA NO.9.2 OF THE CIT(A)S ORDE R AND ARGUED THE ADDITION MADE BY THE AO AND AS CONFIRMED BY THE CIT(A) N EEDS TO BE DELETED. ALTERNATIVELY, HE PLACED ON RECORD A CONSOLIDATE D ORDER DATED 15.07.2019 OF THIS TRIBUNAL IN THE CASE OF SHRI RATANLAL C. BA FNA VS. DCIT IN ITA NO.109 & 110/PUN/2014 AND SUBMITTED THAT THE ISS UE RAISED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE DECIDED BY THIS T RIBUNAL VIDE ITS ORDER DT.15.07.2019 (SUPRA). HE REFERRED TO PARA NO.13 OF THE SAID ORDER AND ARGUED THAT THE PRESENT ISSUE I.E., ADDITION OF RS.1,45,00 0/- U/S 69A OF THE ACT RAISED IN GROUND NOS. 3 AND 4 MAY BE REMANDE D TO THE FILE OF AO FOR HIS DETAILED FACTUAL VERIFICATION. SHRI P. WALIMBE, THE LD. D.R. REPORTED NO OBJECTION IN REMANDING THE ISSUE RAISED IN GROUND NOS .3 AND 4 TO THE FILE OF AO. 3 5. WE FIND IN THE PRESENT CASE THE ASSESSMENT WAS RE-O PENED ON THE BASIS OF SEARCH SAID TO HAVE BEEN CONDUCTED IN THE CASE OF CHHORIYA GROUP AND THE ADDITION OF RS.1,45,000/- MADE BY THE AO U/S 69 OF THE ACT ON THE BASIS OF STATEMENT ALLEGED TO HAVE BEEN MADE BY SHR I KANHAIYALAL D. CHHORIYA IN THE SEARCH PROCEEDINGS INVOLVING THE ASSESSE E. THEREFORE, WE FIND THE OBSERVATIONS MADE BY THE CO-ORDINATE BENCH OF T HIS TRIBUNAL IN THE CASE OF SHRI RATANALAL C. BAFNA VS. DCIT (SUPRA) THAT IF THE INCOME OF THE ENTRIES WHICH WERE FOUND IN THE DIARY DURING THE COURSE OF SEARCH IN THE PREMISES OF CHHORIYA GROUP, HAD BEEN DECLARED BY MR. CHHORIYA AS HIS OWN INCOME, IN SUCH CIRCUMSTANCES, NO ADDITION SHOULD SUSTA IN IN THE HANDS OF THE ASSESSEE. HOWEVER, IF IT IS FOUND THAT THERE IS A CONTRARY SCENARIO IN THAT CASE, ADDITION HAS TO BE SUSTAINED IN THE HANDS OF TH E ASSESSEE AND REMANDED THE MATTER TO THE FILE OF AO FOR A DETAILED FACTU AL VERIFICATION WHICH IS AT PARA NO.13 OF THE SAID ORDER, FOR READY REFER ENCE IS REPRODUCED AS UNDER : 13. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS ON MERITS. WE ARE OF THE CONSIDERED VIE W THAT IF THE INCOME OF THE ENTRIES WHICH WERE FOUND IN THE DIARY DURING THE COURSE OF SEARCH IN THE PREMISES OF CHHORIYA GROUP, HAD BEEN DECLARED BY MR. CHHORIYA AS HIS OWN INCOME, IN SUCH CIRCUMSTANCES, NO ADDITION SHOULD SUSTAIN IN THE HA NDS OF THE ASSESSEE. HOWEVER, IF IT IS FOUND THAT THERE IS A C ONTRARY SCENARIO IN THAT CASE, ADDITION HAS TO BE SUSTAINED IN THE HANDS OF THE ASSESSEE. THIS ISSUE, THEREFORE NEEDS DETAILED FACTUAL VERIFICATION. WE THEREFORE, SET ASIDE THE O RDER OF THE LD. CIT(APPEALS) ON THIS ISSUE AND RESTORE THE MATTER T O THE FILE OF THE ASSESSING OFFICER FOR PROPER VERIFICATION AS HE REINABOVE DIRECTED BY US AND RE-ADJUDICATE THE MATTER IN CONF ORMITY WITH THE PRINCIPLES OF NATURAL JUSTICE. THUS, GROUNDS NO . 5 AND 7 RAISED IN APPEAL BY THE ASSESSEE ARE ALLOWED FOR ST ATISTICAL PURPOSES. 6. IN THE LIGHT OF THE ABOVE OBSERVATIONS, WE DEEM IT PRO PER TO REMAND THE ISSUE OF ADDITION OF RS.1,45,000/- INVOLVING GROUND NOS.3 AND 4 TO THE FILE OF AO FOR HIS DETAILED FACTUAL VERIFICATION. THE ASSESSEE IS AT LIBERTY TO 4 FILE EVIDENCES, IF ANY, IN SUPPORT OF HIS CLAIM. THUS, GROUND NOS .3 AND 4 ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 8 TH DAY OF NOVEMBER, 2019. SD/- SD/- (R.S. SYAL) (S.S. VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 8 TH NOVEMBER, 2019 YAMINI '# $ %&'( )( & / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ! () / THE CIT(A)-2, NASHIK. 4. THE COMMISSIONER OF INCOME TAX-2, NASHIK. 5. $%& ''() , () , +,- , / DR, ITAT, A BENCH, PUNE. 6. &./ 01 / GUARD FILE. // $ ' // TRUE COPY// '# / BY ORDER // TRUE COPY // // TRUE COPY // 234 '5 (- / SR. PRIVATE SECRETARY () , / ITAT, PUNE.