Tajinder Singh, Chandigarh V. ITO, W-5(3), Chandigarh

ITA 355/CHANDI/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4020 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 20-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANKUR ALYA JCIT DR
• Keywords: Opportunity of being heard
• Section: 69

Judgement Text

, . , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !', # $ %!, %! & ' ( ) * , +, $ BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ITA NO. 355/CHD/2018 ASSESSMENT YEAR : 2011-12 SHRI TAJINDER MITTAL HOUSE NO. 3340/1, SECTOR 45-D, CHANDIGARH. VS THE ITO, WARD 5(3), CHANDIGARH. PAN NO: AQQPS7291H APPELLANT RESPONDENT !' ASSESSEE BY : SHRI ATUL GOYAL #!' REVENUE BY : SHRI ANKUR ALYA, JCIT (DR) $ %! & DATE OF HEARING : 08.08.2018 '()*! & D ATE OF PRONOUNCEMENT : 09.10.2018 +-/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 17.11.2016 OF CIT(A)-2 CH ANDIGARH PERTAINING TO 2011-12 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : 1. THAT THE ORDER OF THE WORTHY CIT(A)-2, CHANDIGAR H IS BEING CHALLENGED ON THE GROUND OF IT BEING BAD IN LAW AND AGAINST THE P ROVISIONS OF THE INCOME TAX ACT, 1961. 2. THAT THE ADDITIONS MADE BY THE LD. ASSESSING OFF ICER AS UPHELD BY THE WORTHY CIT(A), CHANDIGARH U/S 69 OF THE INCOME TAX ACT, 19 61, ON ACCOUNT OF CASH PAYMENT OF RS. 29 LACS GIVEN BY RELATIVES/FRIENDS F OR PURCHASE OF FLAT IS NOT SUSTAINABLE AND IS AGAINST THE PROVISIONS OF THE AC T ON THE FACT THAT AFFIDAVITS, BANK ACCOUNT STATEMENTS, ETC. OF THESE PERSON WERE DULY SUBMITTED & THEREFORE THE SAID ORDER OF THE CIT(A), CHANDIGARH DESERVES T O BE SET ASIDE. 2. MR. ATUL GOYAL APPEARING ON BEHALF OF THE ASSESSEE SUBM ITTED THAT IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE PURCHASE D A HOUSE WHEREIN AVAILABILITY OF RS. 29 LACS WAS QUESTIONED BY THE AO. THE S PECIFIC PROPERTY WAS PURCHASED FOR RS. 32 LACS AND THE AVAILABILITY OF RS. 3 LACS WAS ACCEPTED. WITH REGARD TO THE REMAINING AMOUNT OF R S. 29 LACS, THE ASSESSEE EXPLAINED BEFORE THE AO THAT THE MONEY WAS BO RROWED AND ARRANGED FROM FRIENDS AND RELATIVES. INVITING ATTENTION TO PAGE 2 OF THE ITA 355/CHD/2018 A.Y.2011-12 PAGE 2 OF 3 ORDER, IT WAS SUBMITTED THAT FOR THE FIRST TIME ON 17.03.20 15, THE ASSESSEE WAS REQUIRED TO PRODUCE THE PARTIES WHOSE AFFID AVITS AND COPIES OF BANK ACCOUNTS ETC. WERE FILED. ON THE SAID DATE, TIME WA S SOUGHT. THE AO ON 20.03.2015 GRANTED ANOTHER FEW DAYS TIME AND ADJ OURNED THE CASE TO 25.03.2015 AND PASSED THE ORDER ON THE VERY SAME DAY. 2.1 INVITING ATTENTION TO PAPER BOOK PAGE 8 AND 9, IT WAS SUBMITTED THAT OUT OF 10 PEOPLE WHO HAD FUNDED THE ASSESSEE, TWO PERSONS HAD DIED BEFORE COMMENCEMENT OF THE PROCEEDINGS, THE ASSESSEE'S FATHER AND HIS BROTHER OUT OF THE OTHER FIVE PERSONS, THREE WERE LIVING OUTSIDE CHANDIGARH I.E. IN HOSHIARPUR, JALANDHAR AND KAPURTHALA AND TWO PERSONS WERE THOUGH LIVING IN CHANDIGARH COULD NOT COME ON THE SAID DATE. INVITING ATTENTION TO THE IMPUGNED ORDER, IT WAS SU BMITTED, THE CIT(A) RELYING UPON THE REMAND REPORT OF THE AO AS DISCU SSED AT PAGE 3 OF HIS ORDER , CONFIRMS THE ADDITION. READING THEREFROM, IT WAS SUBMITTED, THE AO MERELY REITERATES THAT THESE PARTIES WERE NOT PRODUCED AT THE ASSESSMENT STAGE AND REFUSES TO CONSIDER THE EVIDENCES . ACCORDINGLY, IT WAS HIS PRAYER THAT CONSIDERING THE EVIDENCES, THE ADDITIO N MAY BE DELETED. IT WAS ALSO HIS SUBMISSION THAT THE ASSESSEE HA S NEVER EXPRESSED HIS UN-WILLINGNESS TO PRODUCE THE PARTIES BEFOR E THE AO. IT WAS ONLY DUE TO THE SHORTAGE OF TIME THEN THAT THEY COULD NOT BE PRODUCED. IT WAS HIS SUBMISSION THAT HE IS READY AND WILLING TO PRODUCE THEM BEFORE THE AO AND CIT(A) EXCEPT HIS FATHER AND BROTHER WHO IS NO MORE. HOWEVER, AFFIDAVITS OF THE FAMILY MEMBERS IN SUPPORT OF THE AVAILABILITY OF FUNDS IS AVAILABLE ON RECORD. 3. THE LD. SR.DR RELIES UPON IMPUGNED ORDER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. A PERUSAL OF THE ORDER SHOWS THAT THE CIT(A) HA S CONFIRMED THE ADDITION RELYING UPON THE FACT THAT DURING THE ASSESSMEN T STAGE, THE CREDITORS WERE NOT PRODUCED. HE HAS ALSO NOTED THAT MERE FILING OF AFFIDAVIT AND STATING THE SOURCE OF INCOME DO NOT EX PLAIN THE SOURCE OF MONEY IN THE HANDS OF CREDITORS. WE FIND IN THE AFFIDAVITS FILED ON BEHALF OF THE ASSESSEE, THE AVAILABILITY OF FUNDS HAS BEEN EXPLAINED. HOWEVER, IT IS NOTICED THAT NEITHER THE AO NOR CIT(A) THE HAVE CARE D TO ADDRESS THE AFFIDAVITS FILED. CONSIDERING THE SUBMISSIONS THAT THE ASSESSE E IS IN A POSITION TO PRODUCE THE SURVIVING FRIENDS AND RELATIVES, WE RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ITA 355/CHD/2018 A.Y.2011-12 PAGE 3 OF 3 ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE RE ASONABLE OPPORTUNITY OF BEING HEARD. AT THE SAME TIME, IT IS MADE CLE AR THAT THE OPPORTUNITY SO PROVIDED, IT IS HOPED, IS NOT ABUSED BY TH E ASSESSEE AS IN THE EVENTUALITY OF ABUSE OF THE SAME, THE LD. CIT(A) WOULD BE AT LIBERTY PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THUS, IT IS HOPED THAT THE ASSESSEE IN ITS OWN INTEREST MAKES FULL AND PROPER COMPLIANCE BEFORE THE SAID AUTHORITY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.10.2018. SD/- SD/- ( & ' ( ) * ) ( !' ) (ANNAPURNA GUPTA) (DIVA S INGH) +, $/ ACCOUNTANT MEMBER # $/ JUDICIAL MEMBER ' & (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT - 2. THE RESPONDENT - 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR