Gulam Haider, Bhopal V. The ITO 3(2), Bhopal

ITA 344/IND/2012

• Counselvise Citation: 34422714 RSA 2012
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 07-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 344/IND/2012 A.Y. 2006-07 GULAM HAIDER BHOPAL PAN AARPH 9069B :: APPELLANT VS INCOME TAX OFFICER 3(2) BHOPAL :: RESPONDENT APPELLANT BY SHRI SUMIT NEMA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 29.11.2012 DATE OF PRONOUNCEMENT 29.11.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 2.2.2012 PASSED BY THE LEARNED FIRST APPELLATE AUTH ORITY, BHOPAL, ON THE GROUNDS AS STATED IN THE GROUNDS OF APPEAL. 2 2. DURING HEARING WE HAVE HEARD SHRI SUMIT NEMA, L EARNED COUNSEL FOR THE ASSESSEE, AND SHRI R.A. VERMA, LEAR NED SENIOR DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSE E IS THAT THE ASSESSEE SOLD SOME AGRICULTURAL LAND AND THE CHEQUE WORTH RS. 20 LACS AS MENTIONED IN THE AGREEMENT WAS DULY RECE IVED. IT WAS ALSO PLEADED THAT THE OTHER AMOUNTS, DEPOSITED IN T HE BANK WERE ALSO EXPLAINED THROUGH SCHEDULE NO. 1 FILED BEFORE THE LOWER AUTHORITIES EXPLAINING THE SOURCE AND MODE OF DEPOS IT OF EACH AND EVERY AMOUNT. AFTER INVITING OUR ATTENTION TO S CHEDULE I PLACED AT PAGES 13 TO 16 OF THE PAPER BOOK, A PASSI ONATE PLEA WAS RAISED BY THE LEARNED COUNSEL THAT IN THE INTEREST OF JUSTICE, NO PERSON SHOULD BE CONDEMNED UNHEARD. ON THE OTHER H AND, MR. R.A. VERMA CONTENDED THAT OPPORTUNITY HAS ALREADY B EEN PROVIDED TO THE ASSESSEE AND THE ASSESSEE FAILED TO PROVE EACH AND EVERY ENTRY FOUND IN THE BANK ACCOUNT. HOWEVER , MR. VERMA STATED THAT THE INTEREST OF THE REVENUE SHOULD BE S AFEGUARDED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE WAS MAINTAINING AN ACCOUNT WITH HDFC BANK WHEREIN THERE WERE TOTAL DEPOSITS OF RS.1,20,01,000/- INCLU DING CASH OF RS.36,51,000/-. THE CLAIM OF THE ASSESSEE FROM THE ASSESSMENT 3 STAGE ITSELF IS THAT THESE DEPOSITS WERE OUT OF SAL E PROCEEDS OF AGRICULTURAL LAND MEASURING 180.64 ACRES. THE ASSE SSEE ALSO FILED CONFIRMATION FROM M/S KESSELE ENGG. WORKS PVT . LTD. REGARDING PAYMENT OF SALE CONSIDERATION OF RS. 70 L ACS ALONG WITH THE CONFIRMATION FROM VARIOUS PARTIES AS MENTIONED IN THE IMPUGNED ORDER. RS. 10 LACS WAS CLAIMED TO HAVE BE EN DEPOSITED BY THE ASSESSEES SISTER. DEPOSIT OF RS. 5,80,000/ - ON 28.2.2006, RS. 4.00 LACS ON 3.3.2006 AND RS. 4.00 LACS ON 10.3 .2006 WAS CLAIMED TO BE OUT OF REFUND OF ADVANCE RECEIVED FRO M SHRI BANSILAL KUSHWAHA. THE ASSESSEE HAD ALSO SUBMITTED AFFIDAVIT OF SHRI BANSILAL TO SUBSTANTIATE THE SAID DEPOSIT. HO WEVER, THE CIT(A) DECLINED TO ACCEPT THE SAME ON THE PLEA OF A DDITIONAL EVIDENCE. THE AFFIDAVIT FILED BY THE ASSESSEE TO S UPPORT THE SOURCE OF DEPOSITS IN BANK ACCOUNT GOES TO THE ROOT OF THE ISSUE. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO VER IFY THE CONTENTS OF THE AFFIDAVIT AND TO DECIDE THE MATTER AFRESH. I F THE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER ARE ANALYSED, I N THE LIGHT OF SCHEDULE I AS PLACED ON RECORD EXPLAINING DATEWISE DEPOSIT IN BANK ACCOUNT ALONG WITH MODE AND SOURCE OF DEPOSIT, WE FIND THAT SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT AFFORDED TO THE ASSESSEE TO EXPLAIN HIS CASE. WE ARE, THEREFORE, O F THE VIEW THAT 4 NO PERSON SHOULD BE CONDEMNED UNHEARD WITHOUT PROVI DING SUFFICIENT AND EFFECTIVE OPPORTUNITY. WE, THEREFORE , TO SAFEGUARD THE INTEREST OF BOTH THE PARTIES, DIRECT THE ASSESS ING OFFICER TO PROVIDE SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO E XPLAIN HIS CASE EFFECTIVELY AND DECIDE THE ISSUE AFRESH IN ACCORDAN CE WITH LAW. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE , IF ANY, IN SUPPORT OF HIS CLAIM. THIS APPEAL IS, THEREFORE, AL LOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 29 TH NOVEMBER, 2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 29 TH NOVEMBER, 2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/- 5