Sh. Bablesh Kumar Tiwari, Agra V. I.T.O.-6(4), Lalitpur

ITA 325/AGR/2012

• Counselvise Citation: 32520314 RSA 2012
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-11-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 16-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: VITHAL DAS
• Keywords: Assessment record
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.325/AGR/2012 ASSESSMENT YEAR: 2008-09 SHRI BABLESH KUMAR TIWARI, VS. INCOME TAX OFFICER 6(4), C/O. SHRI VITHAL DAS, ADVOCATE, LALITPUR. 15, BAGH FARZANA, AGRA. (PAN: AAFPT 4385 A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VITHAL DAS, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 20.11.2012 DATE OF PRONOUNCEMENT OF ORDER : 30.11.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 14.03.2012 PASSED BY THE LD. CIT(A)-II, AGRA FOR THE ASSESSMEN T YEAR 2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. BECAUSE THE AUTHORITIES BELOW HAVE BEEN ARBITRA RY AND UNJUST IN RUSHING WITH THE ASSESSMENT/APPELLATE ORDER WITHOUT PROPERLY APPRECIATING THE FACT THAT THE APPELLANT WAS UNDERG OING HEAVY DEPRESSION AND THE VARIOUS CONNECTING STATUS OF THE APPELLANT WERE IN THE RECORDS WITH THEM. ITA NO.325/AGR/2012 A.Y. 2008-09 2 2. BECAUSE THE AMOUNTS DEPOSITED IN CASH IN ALLAHAB AD BANK WERE FOR AND ON BEHALF OF THE BABLESH KUMAR TIWARI (A PARTNE RSHIP FIRMA) AND THAT THE APPELLANT AS AN INDIVIDUAL HAS HAD NO CONNECT ION WITH THE SAID DEPOSITS. IN ANY CASE THE MARGIN MONEY DEPOSITS FOR AND ON BEHALF OF HE FIRM WERE OF RS.19,90,000 ONLY AS PER BANK STATEMEN T, PRODUCED BEFORE THE AO DURING ASSESSMENT PROCEEDINGS. 3. BECAUSE THE LEARNED CIT(A) HAS NOT DISPOSED OF A LL THE CONTENTIONS BEFORE HIM AND HAS PASSED HIS APPELLATE ORDER WITHO UT CALLING FOR THE ASSESSMENT RECORD FORM THE A.O. 4. BECAUSE IN ANY VIEW OF THE CASE, THE INCOME OF B ABLESH KUMAR TIWARI HAVING BEEN ADOPTED ON APPLICATION OF NET PR OFIT RATE ON TOTAL TURNOVER OF THE PARTNERSHIP FIRM, NO ADDITION COULD HAVE BEEN MADE UNDER ANY PRESUMPTIVE PROVISIONS OF THE ACT. 5. BECAUSE THE ORDERS OF THE AUTHORITIES BELOW ARE ERRONEOUS ON FACTS AND IN LAW AND ARE LIABLE TO BE QUASHED. 3. THE BRIEF FACTS OF THE CASE ARE THAT INSPITE OF VARIOUS OPPORTUNITIES THE ASSESSEE DID NOT PUT HIS PRESENCE BEFORE THE A.O. HE DID NOT COMPLY WITH THE NOTICE ISSUED BY THE A.O. THE BOOKS OF ACCOUNT WER E ALSO NOT PRODUCED BEFORE THE A.O. THE A.O. WAS HAVING NO OPTION EXCEPT TO COMPL ETE THE ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (THE ACT H EREINAFTER). THE A.O. MADE ADDITION OF RS.2,25,138/- BY APPLYING 8% NET PROFIT RATE ON GROSS RECEIPTS. THE A.O. ALSO MADE ADDITION OF RS.77,599/-, BEING REMUN ERATION RECEIVED FROM M/S. BABLESH KUMAR TIWARI CONTRACTOR RS.24,000/-, INTERE ST ON PARTNERS CAPITAL FROM M/S BABLESH KUMAR TIWARI RS.97,434/-, REMUNERATION FROM M/S SHIVAM STONE CRUSHER RS.55,500/- AND INTEREST ON PARTNERS CAPIT AL FROM M/S SHIVAM STONE CRUSHER RS.24,240/-. THE A.O. NOTICED THAT TOTAL R ECEIPT WAS RS.2,01,174/- ITA NO.325/AGR/2012 A.Y. 2008-09 3 WHEREAS THE ASSESSEE HAS SHOWN ONLY RS.1,23,575/-. THE ASSESSEE DID NOT EXPLAIN ABOUT THE DIFFERENCE AMOUNT OF RS.77,599/-. THE A. O. MADE THE ADDITION ACCORDINGLY. 4. THE A.O. HAS MADE ADDITION OF RS.1,14,400/- ON A CCOUNT OF AGRICULTURAL INCOME AS THE ASSESSEE HAS FAILED TO FURNISH ANY EV IDENCE IN SUPPORT OF THE AGRICULTURAL INCOME DISCLOSED BY THE ASSESSEE. 5. THE A.O. ALSO MADE ADDITION OF RS.38,80,000/- ON ACCOUNT OF CASH DEPOSITED IN BANK. BEFORE THE CIT(A) ALSO THE ASSESSEE DID N OT PUT HIS PRESENCE. THE CIT(A) DECIDED THE APPEAL EX-PARTE. THE CIT(A) REJ ECTED THE ASSESSEES GROUND RELATING TO COMPLETING OF ASSESSMENT UNDER SECTION 144 OF THE ACT BY THE A.O. ON THE GROUND THAT THE A.O. HAS PROVIDED AMPLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. THE CIT(A) ALSO CONFIRMED THE ACTION OF THE A.O. IN APPLYING THE NET PROFIT RATE OF 8% IN RESPECT OF ADDITION OF RS.1,14 ,400/-. THE CIT(A) CONFIRMED THE ORDER OF THE A.O. ON THE GROUND THAT THE ASSESS EE HAS FAILED TO PRODUCE ANY EVIDENCE BASED ON WHICH IT CAN BE SAID THAT THE ASS ESSEE WAS ABLE TO GENERATE AGRICULTURAL INCOME. THE CIT(A) CONFIRMED THE ADDI TION OF RS.38,80,000/- AS THE ASSESSEE HAS FAILED TO FURNISH ANY EVIDENCE AND EXP LANATIONS REGARDING SOURCE OF CASH DEPOSITED IN BANK. ITA NO.325/AGR/2012 A.Y. 2008-09 4 6. THE SECOND GROUND RAISED BEFORE US IS A NEW GROU ND. THE ASSESSEE DID NOT RAISE SUCH GROUND BEFORE THE REVENUE AUTHORITIES. THE CONTENTION BEFORE US BY THE LD. REPRESENTATIVES OF THE PARTIES WERE THAT EX-PAR TE ORDERS WERE PASSED BY THE REVENUE AUTHORITIES BECAUSE OF THE ACUTE INCAPACITA TION OF ASSESSEE OWING TO HIS SUFFERING FROM DEPRESSION FOR WHICH NO PROPER MEDIC ATION WAS UNDERTAKEN AS THE ASSESSEE WAS IN HIS IMPAIRED MENTAL HEALTH. GRADUA LLY THE ASSESSEE WAS VICTIM OF INSOMNIA AND HE HAD LOST HIS MEMORY. 7. LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTION ON THE PRESCRIPTIONS THE DOCTOR WHICH HAVE BEEN PLACED IN THE PAPER BOOK FRO M PAGE NOS. 1 TO 4. THE CRUX OF THE ARGUMENT OF THE LD. AUTHORISED REPRESENTATIV E WAS THAT THE A.O. AND CIT(A) HAVE PASSED THE ORDERS EX-PARTE WITHOUT PROV IDING OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE WAS HAVING ILL HEALT H. HOWEVER, THE MATTER MAY BE SENT BACK TO THE FILE OF REVENUE AUTHORITIES SO THA T THE ASSESSEE CAN PUT HIS NECESSARY EXPLANATION BEFORE THE REVENUE AUTHORITIE S. 8. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIV E, WE NOTICE THAT THE ORDER OF A.O. AND CIT(A) BOTH ARE EX-PARTE AS THE ASSESSE E DID NOT AVAIL THE OPPORTUNITY OF HEARING INSPITE OF VARIOUS NOTICES AND DATES OF HEARING GIVEN BY THE REVENUE AUTHORITIES. ON PERUSAL OF RECORDS, WE NOTICED THAT THE REVENUE AUTHORITIES PROVIDED REASONABLE OPPORTUNITY TO THE ASSESSEE, BU T THE ASSESSEE HAS FAILED TO AVAIL ITA NO.325/AGR/2012 A.Y. 2008-09 5 THE SAME. THE CONTENTION BEFORE US WAS ONLY IN THE FORM OF MERCY ON ACCOUNT OF ILL HEALTH OF THE ASSESSEE. THE ASSESSEE WAS A PARTNER IN NUMBER OF FIRMS. ON PERUSAL OF PAGE NO.6 OF PAPER BOOK WE NOTICE THAT THERE WAS FIXED DEPOSITS OF RS.18,40,000/- WHICH WAS SAID TO BE PLEDGED WITH P. W.D. IN THE FINANCIAL STATEMENT, OF WHICH COPY HAS BEEN PLACED IN THE PAP ER BOOK, THE ASSESSEE HAD TO SETTLE VARIOUS ISSUES RELATING TO BUSINESS. APART FROM THE ABOVE FACTS, IF WE CONSIDER THE SCHEME OF INCOME TAX ACT, WE NOTICE TH AT CHAPTER-XIV PROVIDES LIABILITY IN SPECIAL CASES, SECTION 159 TELLS ABOUT LEGAL REPRESENTATIVE IN CASE A PERSON DIES. IN SECTION 107 SUCCESSION OF BUSINESS OTHER THAN ON DEATH AND OTHERS HAVE BEEN PROVIDED. EVEN IN CASE OF A DEATH, THE I NCOME TAX PROVISIONS ARE APPLICABLE AND THEY ARE LIABLE TO PAY THE TAX AND A TTEND THE PROCEEDING WHICH THE DECEASED WOULD HAVE BEEN LIABLE TO PAY TAX OR TO AT TEND THE PROCEEDINGS IF HE HAS NOT DIED. UNDER THE FACTS AND CIRCUMSTANCES MERELY THAT THE ASSESSEE WAS ILL, THE CASE CANNOT BE DECIDED IN HIS FAVOUR. THOUGH THE L D. AUTHORISED REPRESENTATIVE REQUESTED TO SEND BACK THE FILE TO THE CIT(A) BUT H E FAILED TO FURNISH ANY SUFFICIENT AND GOOD REASON WITH EVIDENCE AND MATERIAL BASED ON WHICH THE MATTER CAN BE SENT BACK TO THE FILE OF REVENUE AUTHORITIES. THE REVEN UE AUTHORITIES HAVE ALREADY PROVIDED AMPLE AND REASONABLE OPPORTUNITY OF HEARIN G. IN THE LIGHT OF THE FACT, WE DO NOT FIND SUBSTANCE IN THE SUBMISSION OF THE ASSE SSEE. THE ASSESSEE HAS FAILED TO POINT OUT ANY CONTRARY MATERIAL TO THE FINDING OF T HE CIT(A). THE GROUND RAISED BEFORE US WHICH IS SUBJECT TO VERIFICATION AND SUCH GROUND IS NOT ADMISSIBLE AT THIS ITA NO.325/AGR/2012 A.Y. 2008-09 6 STAGE AS THE SAME IS REQUIRED VERIFICATION FROM THE RECORDS. IN THE LIGHT OF ABOVE DISCUSSIONS, WE DO NOT FIND ANY INFIRMITY IN THE OR DER OF CIT(A). ORDER OF THE CIT(A) IS CONFIRMED. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY