Rajendra Prasad Gupta, Jajpur V. ITO, Cuttack

ITA 329/CTK/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5340 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 13-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: P C SETHI
• Keywords: Business income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 329 / CTK /20 1 5 ( / ASSESSMENT YEAR : 20 1 1 - 20 1 2 ) RAJENDRA PRASAD GUPTA , NEAR AXIS BANK, BANK STREET, JAJPUR ROAD, DISTRICT : JAJPUR VS. ITO, WARD - 1(2), CUTTACK ./ ./ PAN/GIR NO. : A CDPG 6683 Q ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI P.C.SETHI, AR /REVENUE BY : SHRI D.K.PRADHAN, DR / DATE OF HEARING : 06 / 1 1 /201 7 / DATE OF PRONOUNCEMENT 07 / 11 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF CIT(A), CUTTACK , IN I.T. APPEAL NO. 660 / 2013 - 14 , DATED 10.04.2015 , PASSED U/S. 14 4/ 250 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 201 1 - 201 2 . 2. THE SOLE SUBSTANTIVE GROUND ARGUED BY LD. AR THAT THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS BEF ORE THE APPELLATE AUTHORITIES BUT THE CIT(A) ERRED IN IGNORING THE SUBMISSIONS AND DISMISSED THE APPEAL. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF FMCG PRODUCTS LIKE EDIBLE OIL, BISCUIT, TEA ETC. AND FILED T HE RETURN OF INCOME FOR THE ASSESSMENT YEAR 201 1 - 201 2 ON 20.09.2011 WITH TOTAL INCOME OF RS. 5,95,010/ - AND THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT AND SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S.143(2) & 142( 1) WERE ITA NO. 329 /CTK/201 5 2 DULY SERVED ON THE ASSESSEE . THERE WAS NO COMPLIANCE BY THE ASSESSEE, HENCE, THE AO ISSUED ANOTHER NOTICE U/S.142(1) CALLING ASSESSEES BOOKS OF ACCOUNT AND EXPLANATION S ABOUT THE SOURCES OF THE CASH DEPOSITS. AS THE ASSESSEE HAS NOT RESPONDED THE AO ISSUED NOTICE U/S.133(6) OF THE ACT TO THE ASSESSEES BANKS AND CALLED FOR THE INFORMATION . T HE AO DEALT ON THE DEPOSITS BY THE ASSESSEE IN THE BANK ACCOUNTS AND OBSERVED THAT THE ASSESSEE BEING A DEALER OF HINDUSTAN LEVER PRODUCTS AND OTHER S HAS NOT SU BMITTED THE ENTIRE BUSINESS RECEIPTS FOR INCOME TAX PURPOSE AND ON THE ASSUMPTION OF SUPPRESSION OF BUSINESS RECEIPTS, MADE AN ADDITION OF GROSS PROFIT AT 3% RS.13,75,121/ - ON UNACCOUNTED SALE S OF RS. 4,58,37,381/ - . SIMILARLY, THE AO ALSO MADE ADDITION OF U NACCOUNTED BUSINESS INVESTMENT S OF RS.24,14,766/ - AS THE ASSESSEE HAS NOT PRODUCED THE BOOKS OF ACCOUNTS, AND THE AO W AS DEPRIVED THE VERIFICATION OF ACCOUNTS. THE AO CONSIDERING THE CIRCUMSTANCES OF NON - SUBMISSION OF INFORMATION BY THE ASSESSEE HAS ESTIMA TED THE NET PROFIT AT 1% ON GROSS PROFIT RS.8,05,883/ - AND THE AO ALSO FOUND THAT THE ASSESSEE HAS MADE INVESTMENT S IN MUTUAL FUNDS AND SINCE THE ASSESSEE HAS FAILED TO SUBMIT THE DETAILS, THE AO ESTIMATED INCOME @ 20% AND WORKED OUT TO RS.47,779/ - AND THE AO OBSERVED THAT AS THE ASSESSEE HAS CLAIMED DEDUCTION U/S.80C UNDER CHAPTER VIA OF THE ACT AND NO EVIDENCE WAS PRODUCED , I N RESPECT OF DEDUCTION , THEREFORE, AO DENIED THE CLAIM UNDER CHAPTER VIA AND ASSESSED THE TOTAL INCOME AT RS.66,81,150/ - AND PASSED THE ORDER U/S.144 OF THE ACT DATED 20.02.2014 . ITA NO. 329 /CTK/201 5 3 4. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT( A ). IN THE APPELLATE PROCEEDINGS THE CIT(A) OBSERVED THAT THE ASSESSMENT WAS BEST JUDGMENT ASSESSMENT AND CONSIDERED THE FINDINGS OF THE AO ON VARIOUS STATEMENTS . BEFORE CIT(A) THE ASSESSEE HAS FILED WRITTEN SUBMISSION S SUPPORTING THE FACTS OF THE CASE WHICH WERE NOT PROVIDED IN THE ASSESSMENT PROCEEDINGS . T HE LD. CIT(A) HAS DEALT ON DISPUTED ISSUES AT PARA 2 TO 4 OF THE ORDER AND O BSERVED THAT THE ASSESSEE HAS NOT SUBMITTED THE DETAILS NOR PRODUCED ANY EVIDENCE IN RESPECT OF CLAIMS, AND THE LD. CIT(A) CONCORD WITH THE FINDINGS OF AO AND DISMISSED THE ASSESSEES APPEAL. 5. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS FILED AN A PPEAL BEFORE THE TRIBUNAL. 6. BEFORE US, LD. AR ARGUED THAT THE CIT(A) HAS ERRED IN IGNORING THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND NO PROPER OPPORTUNITY WAS PROVIDED BEFORE DISPOSAL OF THE APPEAL AND THE ASSESSEE HAS THE EVIDENCE S TO SUPPORT T HE CASE BEFORE THE LOWER AUTHORITIES AND THE L D. AR HAS ARGUED ON THE ABOVE SUBJECT MATTER. CONTRA, LD. DR RELIED ON THE ORDERS OF LD. CIT(A) AND OPPOSED TO THE SUBMISSIONS OF LD.AR. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD . THE SOLE SUBSTANTIVE GROUND ARGUED BY THE LD. AR THAT ASSESSEE HAS FILED WRITTEN SUBMISSIONS IN THE APPELLATE PROCEEDINGS ALONG WITH THE EVIDENCE S WHICH THE LD. CIT(A) HAS OVERLOOKED THESE FACT S AND DISMISS ED THE APPEAL OF THE ASSESSEE WITH THE OBSERVATI ONS THAT THE ASSESSEE HAS NOT MADE ANY ATTEMPT TO PRODUCE THE EVIDENCE AGAINST THE FINDINGS OF AO, WHEREAS LD. AR VEHEMENTLY ARGUED THAT THE ASSESSEE HAS SUBSTANTIAL ITA NO. 329 /CTK/201 5 4 EVIDENCE TO SUPPORT HIS CLAIM IN THE RETURN OF INCOME. LD. DR SUBMITTED THAT THE ASSESSEE HAS NOT COOPERATED IN THE ASSESSMENT PROCEEDINGS NOR IN THE APPELLATE PROCEEDINGS WITH THE REVENUE AUTHORITIES. WE FOUND THERE IS A STRENGTH IN THE ARGUMENTS OF LD. AR , AS THE LD. AR EMPHASIZED VEHEMENTLY THAT THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS AND THEY WERE NOT CONSIDERED BY THE CIT(A) IN THE DECISION MAKING OF THE APPEAL. ACCORDINGLY, WE IN THE INTEREST OF SUBSTANTIAL JUSTICE, SHALL PROVIDE AN OPPORTUNITY TO ASSESSEE TO SUBSTANTIATE ITS CASE AND SET ASIDE THE ORDER OF THE CIT(A) AND REMIT THE ENTI RE DISPUTED ISSUE S TO THE FILE OF CIT(A) FOR ADJUDICATION AFRESH AND THE ASSESSEE SHALL BE PROVIDED AN OPPORTUNITY OF HEARING AND ASSESSEE SHALL COOPERATE IN SUBMITTING THE INFORMATION FOR DISPOSAL OF THE APPEAL AND WE ALLOW THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 07 / 11 / 201 7 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 07 / 11 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - RAJENDRA PRASAD GUPTA, NEAR AXIS BANK, BANK STREET, JAJPUR ROAD, DISTRICT : JAJPUR 2. / THE RESPONDENT - ITO, WARD - 1(2), CUTTACK 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CU TTACK 6. / GUARD FILE. ITA NO. 329 /CTK/201 5 5 / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK //TRUE COPY//