Jayeshkumar P Chauhan, Ahmedabad V. ITO, Ward-5(3)(3), Ahmedabad

ITA 333/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8972 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMIT KR VARMA
• Assessee Lawyers: PRAVIN SAHU
• Keywords: Business income; Principle of natural justice; Corroborative evidences; Set aside
• Section: 143(3); 142(1); 234B; 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I SUDHANSHU SRIVASTAVA , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER JAYESHKUMAR P. CHAUHAN, 1894/7/3, KESHABALU NI CHALI, OPP: NAGRI MILL, RAIPUR ROAD, GOMTIPUR, AHMEDABAD PAN: AIRPC0956A (APPELLANT) VS THE IT O , WARD - 5(3)(3) , AHMEDABAD (RESPONDENT) REVENUE BY : S H RI SUMIT KR. VARMA , SR. D . R. ASSESSEE BY: SHRI PRAVIN SAHU, A.R. DATE OF HEARING : 27 - 06 - 2 019 DATE OF PRONOUNCEMENT : 28 - 06 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTA NT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2010 - 11 , ARI SES FROM ORDER OF THE CIT(A) - 5, AHMEDABAD DATED 31 - 01 - 2 019 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GR OUNDS OF APPEAL: - THE ORDER OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - V CONFIRMING THE ORDER OF A.O. IS BAD IN LAW AS WELL ON FACTS ON THE FOLLOWING GROUNDS; I T A NO . 333 / A HD/20 19 A SS ESSMENT YEAR 2010 - 11 I.T.A NO. 333 /AHD/20 19 A.Y. 2010 - 11 PAGE NO JAYESHKUMAR P. CHAUHAN VS. IT O 2 (1) THE LEARNED AO AND CONSEQUENTLY THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND C IRCUMSTANCES OF ASSESSEE'S CASE IN CONFIRMING THE AD DITIONS AMOUNTING TO RS. 21,20,1 80/ - ON ACCOUNT OF UNDISCLOSED CASH DEPOSIT IN BANK, U/S 68 OF THE ACT. APPELLANT FILED ITS RETURN OF INCOME CLAIMING THAT NO BOOKS OF ACCOUNT HAS BEEN MAINTAINED BY HIM. H OWEVER LD.AO AND LD.CTT(A) BOTH IGNORE THIS FACT OF THE CASE AND MADE ADDITION U/S 68 OF THE ACT. HOWEVER IT IS CLEAR FROM THE VARIOUS CITATION OF THE COURT THAT PROVISION OF SECTION 68 CANNOT BE INVOKED IN THE ABSENCE OF BOOKS OF ACCOUNT. HENCE ADDITION M ADE U/S 68 SHOULD NOT BE SUSTAINED IN THE EYES OF LAW, NEEDS TO BE DELETED. (2) THE LEARNED AO AND CONSEQUENTLY THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS BY CONFIRMING ADDITION OF WHOLE CREDIT ENTRIES IN BANK ACCOUNT RATHER THAN MAKING ADDITION OF PR OFIT ELEMENT INVOLVED IN CREDIT ENTRIES IN BANK ACCOUNT, WHICH MAKE THE ORDER AGAINST THE PRINCIPAL OF NATURAL JUSTICE, SHOULD NOT BE SUSTAINED IN THE EYES OF LAW. (3) THE LEARNED CIT(A) AT THE TIME OF PASSING APPELLATE ORDER DID NOT CONSIDERED VARIOUS CASE LAWS IN FAVOUR OF THE APPELLANT THAT CLEARLY SAYS THAT ONLY PROFIT ELEMENT SHOULD BE TAXED RATHER THAN WHOLE SALE TRANSACTION. HENCE OVERRULING CITATION OF THE SUPREME COURT WHICH MEANS APPELLATE ORDER PASSED WITHOUT CONSIDERING MATERIAL ON RECORD, IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. (4) THE LEARNED CIT(A) VIDE PARA NO. 10.6 WRONGLY STATED THAT APPELLANT HAS NOT FILED ANY SUPPORTING EVIDENCE/BIIL/DOCUMENTS IN SUPPORT OF THE GENUINENESS OF SALE & PURCHASE OF THE CLOTHS, AND IN ABSENCE OF THE SAME REGULAR CASH DEPOSIT IN THE BANK ACCOUNT CANNOT BE CONSIDERED AS BUSINESS RECEIPT. WITHOUT PREJUDICE THE SAME, APPELLANT HAS FILED HIS RETURN OF INCOME CLAIMING NO BOOKS OF ACCOUNT HAS BEEN MAINTAINED BY THE ASSESSEE. HOWEVER AT THE TIME OF FIR ST APPELLATE PROCEEDINGS VIDE WRITTEN SUBMISSION DATED 30.01.2019, APPELLANT HAS PLACED ON RECORD CONFIRMATION ALONG WITH ACKNOWLEDGED COPY OF INCOME TAX RETURN FROM M/S. LAXMAN EMPORIUM AND M/S. MAHESH TEXTILE EVIDENCING THE PAYMENTS MADE FOR PURCHASE FRO M THE BANK ACCOUNT IN QUESTION. HENCE IT IS WRONGLY STATED THAT THERE IS NO SUPPORTING EVIDENCES HAS BEEN FILED BY THE ASSESSEE IN RESPECT OF BUSINESS TRANSACTIONS. (5) THAT THE CHARGING OF INTEREST CHARGED U/S 234A, 234B & 234C OF INCOME TAX ACT. 1961 , IS BAD IN LAW AND IS PRAYED NOT TO BE UPHELD. 3. THE FACT IN BRIEF IS THAT ASSESSEE HAS NOT FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2010 - 11 . O N ITS VERIFICATION , IT WAS SEEN THAT ASSESSEE HAS MADE CASH DEPOSIT IN HIS BANK A/C TO THE AMOUNT OF RS. 21 , 20 , 180/ - . THEREFORE, THE CASE WAS REOPENED U/S. 148 ON 30 TH MARCH, 2017. T HE NOTICE U/S. 142(1) /143(2) OF THE AC T WERE ISSUED ON 10 TH NOV, 2017. THE ASSESSEE HAS NEITHER ATTENDED IN RESPONSE TO THE NOTICES ISSUED NOR FILED ANY WRITTEN SUBMISSION. THEREAFTER, THE ASSESSING OFFICER ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE TO EXPLAIN WHY THE CASH DEPOSIT OF RS. 21 , 20 , 180/ - SHOULD NOT BE ADDED TO HIS TOTAL INCOME ON THE BASIS OF DETAIL AVAILABLE ON RECORD. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE HAS NOT MA DE ANY I.T.A NO. 333 /AHD/20 19 A.Y. 2010 - 11 PAGE NO JAYESHKUMAR P. CHAUHAN VS. IT O 3 COMPLIANCE . THEREFORE, THE ASSESSING OFFICER HAS TREATED THE CASH DEPOSIT OF RS. 21 , 20 , 180/ - AS UNEXPLAINED INCOME OF THE ASSESSEE. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESS EE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD CAREFULLY. THE LD. COUNSEL HAS FILED THE PAPER BOOK CONTAINI NG DETAIL OF SUBMISSION AND COPIES OF DOCUMENT S FURNISHED BEFORE THE LD. CIT(A) DURING THE COURSE OF APPELLATE PRO CEEDINGS . HOWEVER , ON PERUSAL OF THE MATERIAL ON RECORD, IT IS OBSERVED THAT LD. CIT(A) HAS NOT CONSIDERED THE SUBMISSION AND INFORMATION FILED DURING THE COURSE OF APPELLATE PROCEEDINGS IN PROPER PERSPECTIVE ON THE GROUND THAT ASSESSEE HAS NOT MADE COMP LIANCE BEFORE THE ASSESSING OFFICER IN SPITE OF GIVING VARIOUS OPPORTUNITIES. IN THIS REGARD, WE HAVE NOTICED THAT AT PAGE NO. 83 OF THE PAPER BOOK , THE ASSESSEE HAS PLACED THE COPY OF AFFIDAVIT DATED 11 TH SEP, 2018 FURNISHED BEFORE THE LD. CIT(A) IN WHIC H IT WAS STATED THAT ASSESSEE HAS PERSONALL Y ATTENDED ASSESSMENT HEARING MORE THAN THREE TIMES AND SUBMITTED INCOME TAX RETURN, BALANCE SHEET, PROFIT AND LOSS ACCOUNT AND COPY OF BANK STATEMENT FOR F.Y. 20 09 - 10, HOWEVER, THE AS SESSMENT WAS COMPLETED U/S. 144 R.W.S 147 OF T HE INCOME TAX ACT VIDE ORDER DATED 15 TH DECEMBER, 2017 . WE CONSIDER THAT LD. CIT(A) HAS NOT GIVEN ANY FINDING IN RESPECT OF AFORESAID MATERIAL FACT REPORTED IN THE AFFIDAVIT INDICATING THAT PROPER OPPORTUNITIES WERE NOT PROVIDED TO TH E ASSESSEE. AFTER PERUSAL OF THE FACTS AND MATERIAL PLACE D IN THE PAPER BOOK, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, IT WILL BE APPROPRIATE TO RESTORE THIS CASE TO THE FILE OF ASSESSING OFFICER FOR DECIDI NG I.T.A NO. 333 /AHD/20 19 A.Y. 2010 - 11 PAGE NO JAYESHKUMAR P. CHAUHAN VS. IT O 4 DE - NOVO AFTER VERIFICATION AND EXAM INATION OF THE DETAIL AND INFORMATION TO BE FURNISHED BY THE ASSESSEE DURING THE COURSE OF SET ASIDE PROCEEDING. ACCORDINGLY , THE CASE IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR DECIDING AFRESH AS DIRECTED ABOVE AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. THE ASSESSE E IS ALSO DIRECTED TO MAKE PROPER COMPLIANCE BEFORE THE ASSESSING OFFICER DURING THE COURSE OF SET ASIDE PROCEEDING. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 28 - 06 - 201 9 SD/ - SD/ - ( SU DHANSHU SRIVASTAVA ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 28 /06 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCER NED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,