Sunita Khinchi, Jaipur V. Income Tax Officer 6(1), Jaipur

ITA 305/JPR/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5984 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-10-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 11-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Cost of acquisition; Set aside; Capital Gains
• Section: 139; 143(3); 142(1); 143(1); 250

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 305 /JP/2023 fu/kZkj.k o"kZ@Assessment Year : 2011-12. Sunita Khinchi P-51, Raj Aangan, NRI Colony, Pratap Nagar, Sanganer, Jaipur. cuke Vs. The Income Tax Officer, Ward 6(1), Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. ALQPK 3638 K vihykFkhZ@Appellant izR;FkhZ@ Respondent fu/kZkfjrh dh vksj l s@ Assessee by : Shri Manish Agarwal, CA jktLo dh vksj ls@ Revenue by : Shri Anup Singh (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 10/10/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 30/10/2023 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 15.03.2023 of ld. CIT (Appeals), National Faceless Appeal Centre (NFAC), Delhi passed under section 250 of the IT Act, 1961 for the assessment year 2011-12. The assessee has raised the following grounds :- 1. On the facts and in the circumstances of the case and in law. Id. CIT(A) has grossly erred in passing order ex parte arbitrarily. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in confirming lump sum disallowance of Rs. 1,00,000/- made by Ld. AO out of various expenses claimed in profit and loss account by the assessee in M/S S.R. Petroleum without appreciating 2 ITA NO. 305/JP/2023 Smt. Sunita Khinchi, Jaipur. the genuineness of the claim, thus the disallowance so made deserves to be deleted. 2.1 That the disallowance of Rs.1,00,000/- confirmed by Ld. CIT(A) was made by Ld. Assessing Officer without bringing on record any material to establish that any expenses claimed as unverifiable, excessive or incurred for non business purposes more particularly when the trading results were accepted thus the disallowance made deserves to be deleted. 3. On the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming trading addition of Rs. 9,43,860/-, which was made by Ld. AO arbitrarily in case of M/s S.R. Marbles without considering the facts of the case and submissions made and without invoking the provisions of section 145(3), hence the addition of Rs. 9.43,860/- so made deserves to be deleted. 3.1 That the Ld. CIT(A) erred in confirming action of Ld. AO in varying the turnover declared by the assessee at Rs. 42,12,460/- to Rs. 60,00,000/- without in any manner pointing out any defect without bringing on record any evidence to prove that the turnover declared was not real, hence the turnover so declared deserves to be accepted. 3.2 That the Ld. CIT(A) has erred in confirming the action of Ld. AO in varying the gross profit ratio declared by the assessee at 20.32% to 30.00% without in any manner considering the submissions made or without bringing on record any comparable case to support the application of such a high rate of gross profit, hence the gross profit ratio so declared deserves to be accepted. 4. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the action of Ld. AO in treating the rental receipts of Rs. 85,500/- declared by the assessee as income from other sources merely on assumption and presumptions arbitrarily without appreciating the facts and evidences adduced by the assessee. Hence the rental receipts be treated under the head income from house property. 4.1 That the Ld. CIT(A) erred in confirming action of Ld. AO in restricting the interest on housing loan claimed under the head "Income from House Property" amounting to Rs. 6,37.333/- to Rs. 1,50,000/-, arbitrarily without considering the genuineness of the claim. Hence the 3 ITA NO. 305/JP/2023 Smt. Sunita Khinchi, Jaipur. disallowance of interest of Rs. 4, 87.333/- so made deserves to be deleted. 4.2. That the Ld. CIT(A) erred in confirming the action of Id. AO in treating the property as self occupied as against let out shown by the assessee without appreciating submission made and facts brought on record by the assessee, thus consequent addition made deserves to be deleted. 5. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the action of Ld. AO in making an addition of Rs. 14, 37,800/- u/s 68 on account of unexplained cash deposit without appreciating the fact that deposits were made out of the withdrawal made prior to the deposit and also fund available with the assessee and further failed to appreciate that account were jointly maintained by the assessee with her spouse and part of deposits belongs to the spouse of the assessee. Hence the addition of Rs.14, 37.800/- so made deserves to be deleted. 6. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the action of Id. AO in making an addition of Rs. 13,79,000/- on account of unexplained cheque deposited in SBBJ bank when the said deposits represents the loan taken by the spouse of the assessee. Hence the addition of Rs. 13,79,000/- so made deserves to be deleted. 7. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the action of Ld. AO in making an addition of Rs. 2,30,000/-u/s 68 on account of unexplained cash deposit in the ICICI bank without appreciating the fact that account were jointly maintained by the assessee with her spouse and transaction belongs to the spouse of the assessee. Hence the addition of Rs. 2,30,000/- so made deserves to be deleted. 8. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the action of Ld. AO in making an addition of Rs 11,83,000/-u/s 68 on account of unexplained cash deposit in the PNB bank account without appreciating the fact that deposits were made out of the fund available with the assessee and duly recorded in the books of accounts of the assessee. Hence the addition of Rs. 11,83,000/- so made deserves to be deleted. 9. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the action of Ld. AO in computing the income from 4 ITA NO. 305/JP/2023 Smt. Sunita Khinchi, Jaipur. capital gain at Rs. 13,99,726- as against Rs. 60,518/- declared by the assessee appellant arbitrarily without properly appreciating the evidence adduced and submission made by the assessee. Hence income from capital gain as declared by the assessee deserves to be accepted. 9.1. That the Ld. CIT(A) erred in confirming the action of Ld. AO in varying the cost of acquisition claimed by the assessee of Rs. 14,22,512/- to Rs. 11,00,274/- arbitrarily, without properly appreciating the submission made and evidences submitted by the assessee. Hence income from capital gain as declared by the assessee deserves to be accepted. 10. On the facts and in the circumstances of the case and in law, Id. CIT(A) erred in confirming the action of Id.AO in not allowing the benefit of telescoping and set off of the additions made into each other thus the benefit of telescoping and set-off deserves to be allowed from the additions, if any, finally uphold. 11. That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal. 2. The brief facts of the case are that the assessee derives income from two business concerns, namely M/s. S.R. Marbles and M/s. S.R. Petroleum, income from house property, income from capital gains and interest income. The assessee, for the year under consideration filed her return of income under section 139 of the IT Act on 29.09.2011 declaring total income at Rs. 3,95,030/-. The same was processed under section 143(1) at the returned income on 11.11.2011. The case of the assessee was selected for scrutiny under CASS. Accordingly, notice under section 143(2) of the IT Act was issued on 21.09.2012 which was served on 24.09.2012. Thereafter, notices under section 142(1) along with query letters were issued from time to time. In compliance, the assessee furnished details and records produced 5 ITA NO. 305/JP/2023 Smt. Sunita Khinchi, Jaipur. which were examined. The assessee was further asked to furnish complete details of opening stock, purchases, sales and closing stock, details of house property and cash deposit in the bank, along with necessary records maintained. In response, the assessee filed the required documents along with submissions. However, the assessee has not produced any books of account and has not submitted any document to support the expenses claimed in Profit & Loss account. The AO after considering the details/documents/evidences allowed part relief and accordingly completed the assessment at a total income of Rs. 76,70,880/- by making various additions/disallowances. Aggrieved by the order of the AO, the assessee preferred appeal before the ld. CIT (A). At the time of appellate proceedings, the ld. CIT (A) required the assessee to furnish the details/submissions in support of her case, by issuing various notices under section 250 on dates 07.01.2021, 31.01.2023, 17.02.2023, 23.02.2023 and 09.03.2023 which were served on the assessee. The assessee has not responded to the above notices nor submitted any written submissions in support of her case. The ld. CIT (A) decided the case of the assessee ex-parte on the basis of material available on record and thereby partly allowed the appeal of the assessee. Now the assessee is in appeal before us. 3. We have heard the rival contentions, perused the material on record and gone through the orders of the revenue authorities. At the outset, we find that the ld. CIT (A) decided the appeal by observing in para 1.2 of his order as under :- “ 1.2. In view of the facts and legal position discussed above, the appeal is deserved to be dismissed on the grounds of repeated non 6 ITA NO. 305/JP/2023 Smt. Sunita Khinchi, Jaipur. compliance shown by the appellant. However, for the sake of natural justice to be delivered to the appellant, the present appeal is being decided in succeeding paras on the merits of grounds of appeal, statement of facts and other relevant material available on records. However, the ld. CIT (A) considering the material available on record and also taking into consideration the order passed by the AO, partly allowed the appeal of the assessee. 3.1 Before us, the ld. A/R of the assessee submitted that although the assessee could not appear before the ld. CIT (A) as mentioned by her during the course of arguments but she has categorically submitted that she had filed the written submissions and documents before ld. CIT (A) through e-portal, but the said documents were not considered by the ld. CIT (A) while disposing off the present appeal. Since the impugned order of the ld. CIT (A) was passed ex parte for non compliance of the notices issued and not furnishing the documentary evidences, by partly upholding the assessment order under section 143(3) of the IT Act, whereby the AO made various additions, therefore, in the totality of facts and circumstances of the case and in the interest of justice, we are of the view that it will be reasonable to provide one more opportunity to the assessee. We, thus, set aside the ex-parte order of the ld. CIT (A). Be that as it may, without going into merits, considering the interest of natural justice, one more opportunity is granted to the assessee, and the file is restored back to the ld. CIT (A) for consideration afresh after providing a reasonable opportunity of being heard to the assessee, subject to cost of Rs. 2,000/- for negligent attitude during income 7 ITA NO. 305/JP/2023 Smt. Sunita Khinchi, Jaipur. tax proceedings, to be deposited in the Prime Minister’s Care Fund and proof thereof should be produced. The assessee is further directed to furnish necessary documents/evidences as required by ld. CIT (A). In case the assessee fails to appear before the ld. CIT (A), the ld. CIT (A) may decide the appeal on the basis of the material available on record. 4. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 30/10/2023. Sd/- Sd/- ¼ jkBkSM+ deys'k t;arHkkbZ ½ ¼lanhi xkslkbZ½ (RATHOD KAMLESH JAYANTBHAI) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@ Jaipur fnukad@Dated:- 30/10/2023. Das/ vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Smt. Sunita Khinchi, Jaipur. 2. izR;FkhZ@ The Respondent- The ITO Ward 6(1), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur. 6. xkMZ QkbZy@ Guard File {ITA No. 305/JP/2023} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar 8 ITA NO. 305/JP/2023 Smt. Sunita Khinchi, Jaipur.