SHRI GULAM HAIDER, Bhopal V. THE ITO- 3(2), Bhopal

ITA 317/IND/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8677 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-04-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 12-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJEEB JAIN
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 68

Judgement Text

GULAM HAIDER ITA NO.317/IND/2015 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.317/IND/2015 ASSESSMENT YEAR 2006-07 REVENUE BY SHRI RAJEEB JAIN , SR.DR ASSESSEE BY S/ S HRI SUMIT NEEMA, SR. ADV WITH GAGAN TIWARY, ADV DATE OF HEARING 0 4 .04 . 201 9 DATE OF PRONOUNCEMENT 09 .0 4 . 201 9 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL IS FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2006-07 AND IS DIRECT ED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-2 (IN S HORT LD.CIT(A)], BHOPAL DATED 26.02.2015 WHICH IS ARISING OUT OF THE ORDER U/S 143(3)/254 OF THE INCOME TAX ACT 1961(IN SHORT THE ACT) DATED 12.03.2014 FRAMED BY ITO-3(2), BHOPAL. S HRI GULAM HAIDER , PROP. M/S. INDORE TOURS & TRAVELS, BHOPAL VS. INCOME TAX OFFICER 3(2), BHOPAL ( APPELLANT ) (RESPONDENT ) PAN A ARPH9096B GULAM HAIDER ITA NO.317/IND/2015 2 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; 1. THAT THE ORDER PASSED BY THE AO AND THE LEARNED CIT (A) IS ERRONEOUS BOTH IN LAW AND ON FACTS HENCE DESERVES TO BE QUASHED. 2. THAT THE LEARNED ASSESSING OFFICER ERRED AND WAS NO T JUSTIFIED IN MAKING THE ADDITION AND THE LEARNED CIT(A) IN CONFIRMING THE A DDITION OF RS.39,34,600/- AS UNEXPLAINED DEPOSIT U/S 68 OF THE ACT. THE ABOVE GROUNDS ARE INDEPENDENT TO EACH OTHER . THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTE R SUBSTITUTE MODIFY ANY OF THE ABOVE GROUNDS ON OR BEFORE FINAL HEARING. 3. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECOR DS ARE THAT THE ASSESSEE IS AN INDIVIDUAL RUNNING BUSINESS UNDER SO LE PROPRIETORYSHIP CONCERN M/S. INDORE TOURS & TRAVELS. INCOME OF RS.1 ,21,490/- DECLARED IN THE RETURN OF INCOME FILED ON 13.09.2006. CASE WAS PICKED UP FOR SCRUTINY ASSESSMENT. ASSESSMENT U/S 143(3) OF THE ACT WAS FRAMED ON 30.12.2008 ASSESSING INCOME OF RS.45,94,889/-. IN APPEAL AGAINST THE ADDITION LD. CIT(A) PARTLY ALLOWED. ADDITIONS SUSTA INED TRAVELLED BEFORE THE TRIBUNAL. VIDE ORDER DATED 29.11.12 ITA NO.344 /IND/2012 THE ISSUE RELATING TO UNEXPLAINED CASH DEPOSIT IN THE BANK AC COUNT OF THE ASSESSEE WAS SET ASIDE TO THE FILE OF LD. A.O. IN COMPLIANCE THERETO ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S. 254 OF THE ACT WERE C OMPLETED AFTER CONSIDERING THE SUBMISSION FILED BY THE ASSESSEE. APART FROM OTHER GULAM HAIDER ITA NO.317/IND/2015 3 ADDITIONS ONE ADDITION RELATING TO UNEXPLAINED CASH OF RS.46,11,000/- WAS CONFIRMED. AGAIN THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND PARTLY SUCCEEDED WHO AFTER CONSIDERING THE SUBMISSI ON OF THE ASSESSEE CONFIRMED THE ADDITION OF UNEXPLAINED CASH OF RS.39 ,34,600/-, AGAINST WHICH THE ASSESSEE IS NOW IN APPEAL BEFORE THE TRIB UNAL. 4. AT THE OUTSET SR. COUNSEL FOR THE ASSESSEE REFERR ING TO THE CASH DEPOSIT DETAILS PLACED AT PAGE 64 TO 80 OF THE PAPE R BOOK SUBMITTED THAT BOTH THE LOWER AUTHORITIES HAVE NOT CONSIDERED THE FACT THAT THE ASSESSEE WAS HAVING SUFFICIENT CASH TO EXPLAIN THE DEPOSIT A S THERE WERE CONSISTENT WITHDRAWAL FROM BANK BEFORE THE DATES OF CASH DEPOS IT. HE PLEADED FOR ONE MORE ROUND OF ADJUDICATION/VERIFICATION AND REQUEST ED THAT THE ISSUE RAISED IN THIS APPEAL TO BE SET ASIDE AND SUBMISSIO NS OF THE ASSESSEE AND PAPER BOOK INCLUDING CASH BOOK PLACED ON RECORD SHO ULD BE CONSIDERED AND TO THE EXTENT THE ASSESSEE IS ABLE TO EXPLAIN, THE RELIEF MAY BE GRANTED. 5. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEME NTLY ARGUED SUPPORTING THE ORDERS OF LOWER AUTHORITIES BUT DID NOT RAISE ANY OBJECTION IF THE ISSUE IS SET ASIDE TO THE LOWER AUTHORITIES. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE SOLE ISSUE RAISED BY THE ASSESSEE R ELATES TO THE ADDITION FOR GULAM HAIDER ITA NO.317/IND/2015 4 UNEXPLAINED CASH DEPOSIT OF RS.39,34,600/- CONFIRME D BY LD. CIT(A). PERUSAL OF THE RECORDS SHOWS THAT AS PER AIR INFORM ATION THE APPELLANT WAS FOUND TO HAVE MADE DEPOSIT IN ACCOUNT HELD WITH HDFC BANK OF RS.1,20,00,100/- WHICH INCLUDED THE CASH DEPOSIT OF RS.36,51,000/-. THERE WERE CERTAIN PETTY CASH DEPOSIT ALSO WHICH MA DE A FIGURE OF TOTAL CASH DEPOSIT OF RS.39,34,600/- . IN VIEW OF BOTH T HE LOWER AUTHORITIES THIS AMOUNT OF RS.39,34,600/- IS UNEXPLAINED AT THE END OF THE ASSESSEE. NOW BEFORE US LD. COUNSEL FOR THE ASSESSEE TOOK US THROUGH BANK STATEMENT AND CASH BOOK PLACED AT PAGE 36 TO 41 AND PAGE 64 TO 80. IT HAS BEEN PLEADED THAT THE ASSESSEE APART FROM RECEI VING THE SALE CONSIDERATION FROM SALE OF AGRICULTURE LAND HAVE AL SO WITHDRAWN CASH ON VARIOUS DATES AND MOST OF THE ALLEGED CASH DEPOSITS COULD BE EXPLAINED THROUGH THE CASH IN HAND ON THE DATE OF RESPECTIVE DEPOSITS. WE ARE CONSCIOUS OF THE FACT THAT THIS IS THE SECOND ROUND AND NORMALLY THE ISSUE SHOULD NOT BE SET ASIDE BACK TO THE LOWER AUTHORITI ES UNLESS OTHERWISE IT IS VERY IMPORTANT TO EXAMINE THE FACTS OF THE CASE AND GIVE JUSTICE TO BOTH THE PARTIES. 7. IN THE INSTANT APPEAL ON GOING THROUGH THE CASH B OOK AND OTHER DOCUMENTS PLACED IN THE PAPER BOOK, WE FIND CONSIDE RABLE WEIGHTAGE IN THE ARGUMENTS PLACED BY THE LD. COUNSEL FOR THE ASS ESSEE AND IN THE GULAM HAIDER ITA NO.317/IND/2015 5 INTEREST OF JUSTICE WE ACCEPT THE REQUEST AND SET A SIDE THE ISSUE OF UNEXPLAINED CASH DEPOSIT OF RS.39,34,600/- TO THE F ILE OF LD. CIT(A) WHO SHALL CALL FOR A REMAND REPORT FROM THE LD. A.O ON THE ABOVE REFERRED ISSUE OF UNEXPLAINED CASH DEPOSIT OF RS.34,39,600/- , AFTER DIRECTING THE LD. A.O TO TAKE COMPLETE DETAILS FROM THE ASSESSEE ABOUT THE SOURCE OF WITHDRAWALS OF CASH DEPOSITS CLAIMED TO BE AVAILABL E WITH THE ASSESSEE TO EXPLAIN THE ALLEGED CASH DEPOSITS ON RESPECTIVE DAT ES. NEEDLESS TO MENTION THAT DUE OPPORTUNITY OF BEING HEARD AS PER LAW SHOULD BE PROVIDED TO THE ASSESSEE, WHO SHALL NOT TAKE ANY AD JOURNMENT UNLESS OTHERWISE REQUIRED UNDER UNAVOIDABLE CIRCUMSTANCES. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 09.04.2 019. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 09 APRIL, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE