Rajender Tewatia, Palwal V. ITO (OSD), Faridabad

ITA 3151/DEL/2013

• Counselvise Citation: 315120114 RSA 2013
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 20-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources
• Section: 142(1); 133(6); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO.-3151/DEL/ 2013 (ASSESSMENT YEAR-2009-10) RAJENDER TEWATIA, D-197, VILL.-NANGLA BHIKU, P.O.-DHATIR, PALWAL, HARYANA-121102. P AN-ADRPT8628B (APPELLANT) VS ITO (OSD), RANGE-II, FARIDABAD (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. NEEHAR RANJAN PANDEY, SR. DR ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 25.03.2013 OF CIT(A)-2, FARIDABAD PERTAINING TO 2007-08 ASSESS MENT YEAR STATING THAT THE ASSESSEE DID NOT RECEIVE ANY NOTICE FROM THE SAID A UTHORITY. NO ONE WAS PRESENT AT THE TIME OF HEARING ON BEHALF OF THE ASSESSEE HO WEVER AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE SUBMISSION OF THE LD. SR. DR, SH. NEEHAR RANJAN PANDEY IT WAS CONSIDERED APPROPRIATE TO PROC EED WITH THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE APPELLANT ON MERIT. 2. THE RECORD SHOWS THAT THE ASSESSEE DECLARED AN I NCOME OF RS.1,54,150/- ON 30.03.2010 WHICH WAS PROCESSED. HOWEVER SUBSEQUENT LY THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND BY ISSUANCE OF NOTICE D ATED 14.09.2010 U/S 143(2) OF THE INCOME TAX ACT, 1961 HEARING WAS FIXED IN TH E CASE ON 28.09.2010. HOWEVER THE SAID NOTICE REMAINED UNSERVED. SUBSEQU ENTLY NOTICE U/S 143(2) WAS I.T.A .NO.-3151/DEL/2013 2 ISSUED ON 24.09.2010 AND SERVED UPON THE ASSESSEE O N 28.09.2010 WHO APPEARED IN RESPONSE THERETO AND SOUGHT AN ADJOURNMENT WHICH WAS GRANTED. HOWEVER THEREAFTER THE ASSESSEE REMAINED ABSENT ON VARIOUS DATES FOR WHICH NOTICES WERE SENT BY THE DEPARTMENT. IN THESE CIRCUMSTANCES FIN ALLY VIDE LETTER DATED 09.11.2011 ALONGWITH NOTICE U/S 142(1) THE ASSESSEE WAS PUT TO NOTICE THAT QUA THE ADDITIONS PROPOSED IN THE EVENTUALITY OF NON-CO MPLIANCE IT WOULD BE PRESUMED THAT THE ASSESSEE HAD NOTHING FURTHER TO S TATE. THE RELEVANT PORTION EXTRACTED IN THE ASSESSMENT ORDER PASSED U/S 144 RE ADS AS UNDER:- IN CONNECTION WITH ASSESSMENT FOR THE A.Y.2009-10, PENDING IN YOUR CASE, I AM SORRY TO POINT OUT THAT YOUR CASE H AS BEEN FIXED A NUMBER OF TIMES BY ISSUING NOTICES U/S 143(2)/142(1 ) OR THROUGH ORDER SHEET ENTRIES, BUT ON THE DATES FIXED, EITHER YOU DID NOT ATTEND OR REQUESTED FOR ADJOURNMENT AND AS SUCH NO INFORMA TION, IN COMPLIANCE TO NOTICES, HAS BEEN FURNISHED TO THIS O FFICE SO FOR. YOU ARE, THEREFORE, ONCE AGAIN REQUESTED TO FILE INFORM ATION/EXPLANATION ALONG WITH DOCUMENTARY EVIDENCES SPECIFICALLY ON TH E ISSUES GIVEN BELOW:- 1) PLEASE EXPLAIN THE SOURCE OF CASH DEPOSITS OF RS.26 ,73,900/- IN YOUR SAVING BANK ACCOUNT BEARING NO. 073401500469 W ITH ICICI BANK ON DIFFERENT DATES DURING PERIOD FROM 01 .04.2008 TO 31.03.2009 NARRATING EACH ENTRY OF DEPOSIT IN YO UR ACCOUNT. 2) THE PURPOSE OF WITHDRAWALS MADE IN RESPECT OF EACH ENTRY DEBITED IN YOUR ACCOUNT, EITHER BY WAY OF CHEQUES O R BY MAKING CASH WITHDRAWALS DURING PERIOD FROM 01.04.20 08 TO 31.03.2009 NARRATING EACH ENTRY OF DEPOSITED IN YOU R ACCOUNT. 3) THE DETAILS OF INVESTMENT MADE OUT OF THE ABOVE WIT HDRAWALS, DURING THE PERIOD MENTIONED ABOVE. YOUR CASE, FOR THE PURPOSE IS FINALLY FIXED FOR 16. 11.2011 AT 11.50 A.M. PLEASE NOTE THAT NO FURTHER ADJOURNMENT WILL BE ALLOWED IN THIS REGARD. PLEASE ALSO NOTE THAT IN CASE OF N ON COMPLIANCE, IT WILL BE PRESUMED THAT YOU HAVE NOTHING TO SAY IN TH E MATTER AND THE ASSESSMENT WILL BE COMPLETED BY TREATING THE ENTIRE DEPOSITS AS YOUR INCOME FROM UNDISCLOSED SOURCES AND WITHDRAWALS FOR YOUR REGULAR BUSINESS PURPOSE. STATUTORY NOTICE UNDER SECTION 1 42(1) OF THE INCOME-TAX ACT, 1961 HAS BEEN ISSUED SEPARATELY FOR COMPLIANCE FOR 16.11.2011. I.T.A .NO.-3151/DEL/2013 3 2.1. THE SAID NOTICE REMAINED UNCOMPLIED WITH. IN THESE CIRCUMSTANCES THE ISSUE WAS CONCLUDED BY THE AO IN THE FOLLOWING MANN ER:- 5. IN THE RETURN THE ASSESSEE HAS MENTIONED THE BU SINESS OF TRADING. THE RETURN HAS BEEN FILED U/S 44 AF, SHOW ING GROSS RECEIPTS AT RS.12,71,140/-, AGAINST WHICH NET PROFIT OF RS.2 ,54,150/-, HAS BEEN DECLARED. AS PER REASONS, DOWNLOADED FOR TAKING TH E CASE UNDER CASS, IT WAS NOTICED THAT THE CASE HAS BEEN SELECTE D ON THE BASIS OF AIR INFORMATION, FURTHER FROM THE PERUSAL OF THE IN FORMATION DOWN LOADED ON OLTAS, IT WAS NOTICED THAT THE ASSESSEE H AS MADE CASH DEPOSITS AMOUNTING TO RS.26,73,900/- WITH ICICI BAN K DURING THE PERIOD FROM 01.04.2008 TO 31.03.2009, ON DIFFERENT DATES. VIDE QUESTIONNAIRE DATED 10.01.2011, THE ASSESSEE WAS AS KED TO FURNISHED THE COPY OF ALL THE BANK ACCOUNTS MAINTAINED BY HIM AND TO NARRATE EACH DEBIT AND CREDIT ENTRY WITH EVIDENCE. SINCE, THE ASSESSEE FAILED TO FURNISH ANY INFORMATION IN SPITE OF REPEATED OPP ORTUNITIES PROVIDED TO HIM, THE STATEMENT OF BANK ACCOUNT OF T HE ASSESSEE MAINTAINED WITH ICICI BANK, WAS OBTAINED U/S 133(6) OF I.T. ACT, 1961 FROM THE BANK. 6. VIDE LETTER DATED 09.11.2011, THE ASSESSEE WAS SPECIFICALLY ASKED TO FURNISH THE SOURCE OF CASH DEPOSITS OF RS. 26,73,900/- WITH THE ICICI BANK DURING THE YEAR. BUT AS DISCUSSED A BOVE, THE ASSESSEE FAILED TO FURNISH ANY INFORMATION/EXPLANAT ION REGARDING THE SOURCE OF CASH DEPOSITS OF RS.26,73,900/- IN SPITE OF REPEATED OPPORTUNITIES PROVIDED TO HIM FROM TIME TO TIME. I T WAS THEREFORE, OBSERVED THAT THE ASSESSEE HAS NOTHING TO EXPLAIN I N THE MATTER. THEREFORE, IN THE ABSENCE OF ANY EXPLANATION OF THE SOURCE OF DEPOSITS, THE ENTIRE DEPOSITS OF RS.26,73,900/- ARE TREATED AS ASSESSEES INCOME FROM UNDISCLOSED SOURCES AND THE SAME ARE ADDED IN THE INCOME OF THE ASSESSEE FOR THE A.Y.2009-10. ADDITIONS OF RS.26,73,900/- IS, THUS, MADE IN THE INCOME OF THE ASSESSEE ON THIS ACCOUNT. I AM SATISFIED THAT THE ASSESSEE HAS CONC EALED HIS INCOME AND FURNISHED INACCURATE PARTICULARS OF IT IN THE R ETURN TO THE EXTENT OF RS.26,73,900/-. PENALTY PROCEEDINGS U/S 271(1)( C) OF THE INCOME- TAX ACT, HAS BEEN INITIATED SEPARATELY FOR FURNISHI NG INACCURATE PARTICULARS OF HIS INCOME IN THE RETURN. 7. FROM THE PERUSAL OF ENTRIES OF DEBIT SIDE OF THE BANK STATEMENT, IT IS NOTICED THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS ISSUED CHEQUES AS WELL AS MADE CASH WI THDRAWALS FOR TOTAL AMOUNTING TO RS.23,14,900/- ON DIFFERENT DATE S, BUT AS I.T.A .NO.-3151/DEL/2013 4 DISCUSSED ABOVE, THE ASSESSEE FAILED TO FURNISH ANY EXPLANATION REGARDING INVESTMENT MADE BY HIM BY WAY OF ISSUING THE ABOVE SAID CHEQUES. DRAFTS AND MAKING CASH WITHDRAWALS FROM HI S BANK ACCOUNT. THEREFORE, IN THE ABSENCE OF ANY EXPLANAT ION, THE ENTIRE PAYMENTS/WITHDRAWALS OF RS.23,14,900/- ARE TREATED AS THE PAYMENTS, MADE BY THE ASSESSEE TO THE TRADERS OF HI S REGULAR BUSINESS, FOR BUSINESS PURPOSES AND NET PROFIT @ 20 %, (I.E. AS OFFERED BY THE ASSESSEE HIMSELF IN HIS RETURN NON THE DECLARED SALES), IS APPLIED ON THESE PAYMENTS, AND ACCORDINGLY THE N ET PROFIT, WHICH COMES TO RS.4,62,980/-, IS ADDED IN THE INCOME OF T HE ASSESSEE. ADDITION OF RS.4,62,980/- IS, THUS, MADE IN THE INC OME OF THE ASSESSEE ON THIS ACCOUNT. I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED HIS INCOME AND FURNISHED INACCURATE PARTI CULARS OF HIS INCOME IN THE RETURN TO THE EXTENT OF RS.4,62,980/- ALSO. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE INCOME-TAX ACT, HA S BEEN INITIATED SEPARATELY FOR FURNISHING INACCURATE PARTICULARS OF HIS INCOME IN THE RETURN. IN VIEW OF THE ABOVE, THE INCOME OF THE ASSESSEE IS COMPUTED AS UNDER :- 1. INCOME AS DECLARED BY THE ASSESSEE IN THE RETURN RS.1,54,1,45/- 2. ADDITIONS MADE AS DISCUSSED IN PARA : 6 RS.26 ,73,900/- 3. ADDITIONS MADE AS DISCUSSED IN PARA : 7 RS.4,62 ,980/- TOTAL:- RS.32,91,025/- ROUNDED OFF RS. 32,91,030/- ASSESSED, CHARGE INTEREST U/S 234A AND 234 B OF TH E IT ACT. ISSUE PENALTY NOTICED UNDER SECTION 274 FOR DEFAULT U/S 2 71(1)(C) OF THE I.T ACT AS DISCUSSED ABOVE. ISSUE REQUITES DOCUMENTS T O THE ASSESSEE. 3. AGGRIEVED BY THIS THE ASSESSEE WENT IN APPEAL BE FORE THE CIT(A) WHO GAVE OPPORTUNITY TO THE ASSESSEE TO BE PRESENT ON 09.08. 2011 AT 12.30 PM. THEREAFTER ANOTHER OPPORTUNITY WAS GRANTED TO BE PRESENT ON 18 .01.2013 AND 19.03.2013. AS PER THE IMPUGNED ORDER, THE NOTICE WAS ISSUED AT TH E ADDRESS PROVIDED BY THE ASSESSEE IN FORM NO-35, HOWEVER THE MODE AND MANNER OF ISSUANCE OF NOTICE IS NOT SET OUT IN THE IMPUGNED ORDER. THE RECORD SHOW S THAT THE IMPUGNED ORDER WAS PASSED EX-PARTE. THE RECORD ALSO SHOWS THAT THE ST ATED CLAIM OF THE ASSESSEE IS THAT THE NOTICES WERE NOT RECEIVED BY HIM. IN THESE PECULIAR FACTS AND I.T.A .NO.-3151/DEL/2013 5 CIRCUMSTANCES, WE DEEM IT APPROPRIATE TO RESTORE TH E ISSUE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE AFRE SH IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEI NG HEARD. IT MAY BE APPROPRIATE TO POINT OUT THAT NOTICE SHOULD BE ADDR ESSED TO THE ADDRESS PROVIDED BY THE ASSESSEE IN COLUMN NO-10 APPEARING IN FORM N O-36 FILED BEFORE THE TRIBUNAL WHICH READS AS UNDER :- D-197, VILL.-NANGLA BHIKU, P.O-DHATIR, PALWAL, HARYANA-121102. THE OPPORTUNITY SO PROVIDED IT IS HOPED IS UTILIZED BY THE ASSESSEE IN FULLY PARTICIPATING IN THE PROCEEDING AND IS NOT ABUSED B Y THE ASSESSEE, AS COURTS TAKE A VERY SERIOUS VIEW OF ABUSE OF LEGAL PROCESS. 4. ACCORDINGLY THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES AS PER THE PRONOUNCEMENT MADE IN THE OPEN COURT. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 6 TH OF DECEMBER, 2013. SD/- SD/ - (T.S.KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED: 06/12/2013 *AMIT KUMAR/R.NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT RE GISTRAR ITAT NEW DELHI I.T.A .NO.-3151/DEL/2013 6