Gopal Sharma, Jharsuguda V. ITO, Jharsuguda

ITA 339/CTK/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52371 (ITAT-CUTTACK)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 23-06-2011
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: S K JENA
• Keywords: Principle of natural justice

Judgement Text

+ IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 339/CTK/2011 (ASSESSMENT YEAR 205 - 06) SRI GOPAL SHARMA, S/O. LATE KISHAN LAL SHARMA, AT: MAIN ROAD, BRAJARAJNAGAR, DIST. JHARSUGUDA. VERSUS INCOME - TAX OFFICER, WARD 2, JHARSUGUDA. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI S.K.JENA, AR FOR THE RESPONDENT SHRI S.C.MOHANTY, DR ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE AGITATES THE ACTION OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) IN CONFIRMING THE ADDITION OF 2,51,000 AS UNEXPLAINED MONEY. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. DURING THE ASSESSMENT YEAR THE ASSESSEE CLAIMED TO HAVE OBTAINED LOANS OF 2,51,000 (I.E., 19,500 EACH FROM EIGHT PERSONS AND 1,9000 EACH FROM FIVE PERSONS). ON THE GROUND THAT THE ASSESSEE PRODUCED CONFIRMATION LETTERS OF THE LENDERS AT 5 PM ON 31.12.20 08 I.E., THE LAST DATE OF ASSESSMENT AND THAT THE ASSESSEE COULD NOT PRODUCE THE LENDERS FOR CROSS EXAMINATION, THE ASSESSING OFFICER TREATED THE SAID AMOUNT OF 2,51,000 AS UNEXPLAINED MONEY AND ACCORDINGLY HE MADE THE ADDITION. WHILE DOING SO, THE ASSESS ING OFFICER HAS OBSERVED IN HIS ORDER THAT WITH THE HELP OF PANS MENTIONED IN THE CONFIRMATION LETTERS OF THE LENDERS, THE RELEVANT CASE RECORDS WERE TRACED OUT AND VERIFICATION OF SUCH RECORDS UNEARTHED THAT NONE OF THE PERSONS CLAIMED TO HAVE LENT MONEY TO THE ASSESSEE HAS DISCLOSED ABOUT LOAN/ADVANCE GIVEN TO THE ASSESSEE IN THEIR RESPECTIVE STATEMENT OF AFFAIRS/CAPITAL ACCOUNT/BALANCE SHEET AS ON 31.3.2005. THE LEARNED CIT(A) HAS UPHELD THE REASONING OF THE ASSESSING OFFICER IN MAKING THE IMPUGNED ADDIT ION. ITA NO.339/ CTK/2011 2 3. FROM UNDISPUTED FACTS NARRATED IN THE FOREGOING PARAGRAPHS, IT IS SEEN THAT THE ASSESSEE COULD NOT PRODUCE THE LENDERS, BUT HAS ADMITTEDLY PRODUCED THE CONFIRMATION LETTERS OF THE LENDERS AT 5 PM ON 31.12.2008 AND THE ASSESSMENT ORDER HAS BEEN PAS SED ON THE SAME DATE I.E., 31.12.2008. THEREFORE, THERE MIGHT NOT HAVE ANY OCCASION FOR THE ASSESSING OFFICER TO VERIFY THE SAME . THUS, THERE IS NO DOUBT THAT THE ASSESSEE FURNISHED THE EVIDENCE WHAT IT COULD, BUT THOSE REMAINED UNVERIFIED BECAUSE OF PAUCI TY OF TIME , THE ASSESSING OFFICER HAVING PASSED THE IMPUGNED ASSESSMENT ORDER ON 31.12.2008 ON WHICH DATE AT 5 PM THE ASSESSEE HAD FURNISHED SUCH EVIDENCE BEFORE THE ASSESSING OFFICER. THEREFORE, THE OBSERVATION OF THE ASSESSING OFFICER, NOTICED SUPRA, AS REGARDS THE VERIFICATION OF CASE RECORDS OF LENDERS ON THE BASIS OF THEIR PERMANENT ACCOUNT NUMBERS GIVEN IN THE CONFIRMATION LETTERS , MUST BE HELD TO BE THE OUTCOME OF HASTY ACTION OF THE ASSESSING OFFICER AND THAT TOO WITHOUT GIVING ANY OPPORTUNITY TO TH E ASSESSEE IN THIS REGARD. IN SUCH VIEW OF THE MATTER, IN OUR CONSIDERED VIEW, WHEN THE EVIDENCES IN SUPPORT OF THE CLAIM OF CASH CREDITS SUBMITTED BY THE ASSESSEE COULD NOT BE VERIFIED BY THE ASSESSING OFFICER BECAUSE OF PAUCITY OF TIME AS NOTICED EARLIER , THE LEARNED CIT(A) SHOULD HAVE CONSIDERED THE SAME. LAW IS WELL SETTLED THAT THE LEARNED CIT(A) HAS PLENARY POWERS IN DISPOSING OF AN APPEAL. THE SCOPE OF HIS POWER IS CO - TERMINUS WITH THAT OF THE ITO. HE CAN DO WHAT THE ITO CAN DO AND ALSO DIRECT HIM T O DO WHAT HE HAS FAILED TO DO. (SEE - CIT V. KANPUR COAL SYNDICATE [153 ITR 225 (SC) ]. DCIT V. MAHIVA LLEY HOTELS & RESORTS [201 CTR 308 (GUJ)], ITO - CIT V. NIRBHERAM DALURAM [ 224 ITR 610 (SC) ] AND JUTE CORPN. OF INDIA LTD. V. CIT [187 ITR 688 ]. FURTHERMORE, THE LEARNED CIT(A) HAS NOT CALLED FOR ANY RE MAND REPORT FROM THE ASSESSING OFFICER IN THIS REGARD. THE EVIDENCE SO PRODUCED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM HAVING NOT BEEN EXAMINED EITHER BY THE ASSESSING OFFICER OR THE ITA NO.339/ CTK/2011 3 LEARNED CIT(A), WE DEEM IT PROPER, FOR THE ENDS OF NATURAL JUSTICE, TO S ET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE FOR THE SAID PURPOSE AND TO PASS CONSEQUENTIAL ORDER AS IN ACCORDANCE WITH LAW . THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE ASSESSING OFFICER FOR EARLY DISP OSAL OF HIS CASE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON DT. 5 TH AUGUST, 2011 SD/ - SD/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 5 TH AUGUST, 2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: SRI GOPAL SHARMA, S/O. LATE KISHAN LAL SHARMA, AT: MAIN ROAD, BRAJARAJNAGAR, DIST. JHARSUGUDA. 2. THE RESPONDENT: INCOME - TAX OFFICER, WARD 2, JHARSUGUDA. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.