Pankaj Kumar Singh, Faizabad V. Income Tax Officer- II, Faizabad

ITA 320/LKW/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7988 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Assessee Lawyers: S K AGRAWAL
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.320/LKW/2013 ASSESSMENT YEAR:2008-09 PANKAJ KUMAR SINGH 1/13/130, MATRA CHHAYA CIVIL LINES, FAIZABAD V. INCOME TAX OFFICER II FAIZABAD TAN/PAN:ARAPS1495A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. S. K. AGRAWAL, ADVOCATE RESPONDENT BY: SHRI. K. C. MEENA, D.R. DATE OF HEARING: 10 12 2014 DATE OF PRONOUNCEMENT: 16 12 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH ARE AS UNDER:- 1. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN NOT CONSIDERING THE FACT THAT THE ORDER AT ASSESSMENT CASE HAS BEEN PASSED EX PARTE WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD AND EXPLAINING THE THINGS. 2. THAT THE LEARNED CIT(APPEALS) HAS ERRED IN NOT CONSIDERING THE LEGALITY OF THE EX PARTE ORDER AND THAT EVEN AN EX PARTE ORDER SHOULD BE BASED ON FACTS AND CIRCUMSTANCES OF THE CASE AND SHOULD BE BASED ON PAST ASSESSMENT AND BALANCE SHEET WHICH WERE AVAILABLE WITH THE LEARNED ASSESSING AUTHORITY. 3. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN NOT CONSIDERING THE FACT THAT UNSECURED LOANS OF RS. 6,86,780/- WERE OLD AND REFLECTED IN OLD BALANCE SHEETS WHICH WERE PART OF THE RECORD :- 2 -: AND WERE AVAILABLE WITH THE LEARNED ASSESSING AUTHORITY. 4. THAT THE LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE ESTIMATION OF NET PROFIT @ 8% OF THE GROSS RECEIPT WITHOUT CONSIDERING THE ENTIRE FACT AND CIRCUMSTANCES OF THE CASE AND PAST RECORD IN THIS REGARD. 5. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN NOT CONSIDERING THE FACT THAT THE AGRICULTURAL INCOME ALSO EXISTED IN THE PAST YEARS AND IS NOT NEW THIS YEAR AND HE SHOULD HAVE NOT CONFIRMED THE SAME IN SUCH SUMMARY MANNER. 6. THAT THE ORDER OF THE LEARNED CIT(APPEALS) IS UNJUST AND UNFOUNDED AND AGAINST THE PAST RECORD AND FACT AND CIRCUMSTANCES OF THE CASE. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ADDITION SUSTAINED BY THE LD. CIT(A) ON ACCOUNT OF UNSECURED LOAN OF RS.6,86,780/- AND ESTIMATION OF GROSS PROFIT @ 8% OF THE GROSS RECEIPTS, WITH THE SUBMISSION THAT THOUGH THE ASSESSEE HAS FILED ALL THE RELEVANT EVIDENCE BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A), BUT THE SAME WERE NOT LOOKED INTO BY THEM. IN SUPPORT OF THIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO INVITED OUR ATTENTION TO THE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A). 3. IT WAS FURTHER CONTENDED THAT THE UNSECURED LOAN OF RS.6,86,780/- WAS BROUGHT FORWARD CREDIT AND WAS NOT INTRODUCED IN THE IMPUGNED ASSESSMENT YEAR, BUT THIS ASPECT WAS NOT EXAMINED BY THE AUTHORITIES BELOW. IN SUPPORT OF THIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE BALANCE SHEETS ENDING ON 31.3.2007 AND 31.3.2006 WHEREFROM IT PRIMA FACIE APPEARS THAT THE UNSECURED LOAN MAY BE A BROUGHT FORWARD LOAN, BUT FROM THE TOTAL AMOUNT, IT IS NOT CLEAR WHETHER THE CASH CREDITORS REMAINED THE SAME DURING THE ENTIRE PERIOD. THEREFORE, WE ARE OF THE VIEW THAT THIS ISSUE SHOULD BE RE-EXAMINED BY THE :- 3 -: LD. CIT(A) AFTER MAKING NECESSARY VERIFICATION AND IF THE UNSECURED LOANS IS HELD TO BE BROUGHT FORWARDS LOANS, THE ADDITION UNDER SECTION 68 OF THE ACT IS NOT CALLED FOR. 4. WITH REGARD TO THE ESTIMATION OF NET PROFIT, IT WAS CONTENDED THAT THE RELEVANT BILLS & VOUCHERS AND BOOKS OF ACCOUNT WERE PRODUCED, BUT THE REVENUE AUTHORITIES HAVE NOT TAKEN COGNIZANCE THEREOF. IN THE LIGHT OF THESE FACTS, WE SET ASIDE THIS ISSUE ALSO TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE SAME AFRESH IN THE LIGHT OF THE BOOKS OF ACCOUNT AND BILLS & VOUCHERS MAINTAINED BY THE ASSESSEE. 5. NEEDLESS TO MENTION HERE THAT THE LD. CIT(A) WILL ADJUDICATE THE APPEAL AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO PLACE ALL THE RELEVANT EVIDENCE BEFORE THE LD. CIT(A) FOR PROPER ADJUDICATION OF THE IMPUGNED ISSUES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH DECEMBER, 2014 JJ:1012 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR