Yogesh Dhir, Ludhiana V. ITO, W-2, Jagraon

ITA 38/CHANDI/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1531 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 10-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH CIT DR
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 147; 148; 144

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BEN CHES, SMC CHANDIGARH .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.38/CHD/2019 ASSESSMENT YEAR : 2010-11 YOGESH DHIR S/O SHRI. SUBHASH DHIR, H.NO. 1780/49-B, STREET NO. 3 KACHA MALAK ROAD, JAGRAON, LUDHIANA, PUNJAB THE ITO W-2, SHERPURA ROAD JAGRAON, PUNJAB PAN NO:AKGPD2088R APPELLANT RESPONDENT !' ASSESSEE BY : SHRI SUDHIR SEHGAL, ADVOCATE #!' REVENUE BY : SHRI MANJIT SINGH, CIT DR $ %! & DATE OF HEARING : 12/06/2019 '()*! & DATE OF PRONOUNCEMENT : 12/06/2019 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT.26/10/2018 OF LD. CIT(A)-3, LUDHIANA. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED THE FO LLOWING GROUNDS: 1. THAT THE LD. CIT (APPEALS)-3, LUDHIANA IN LAW AS WE LL AS ON FACTS HAS ERRED IN CONFIRMING LEGALITY AND VALIDITY OF INITIATION O F PROCEEDINGS U/S 147 OF THE ACT AND ISSUE OF NOTICE U/S 148 OF THE ACT BY THE LD. A SSESSING OFFICER. 2. THAT THE LD. CIT(APPEALS)-3, LUDHIANA HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN ISSUING NOTICE U/S 148 OF THE ACT AS THERE WAS NO REASON TO 'BELIEVE WITH THE AO THAT THE INCOME OF THE APPELLANT HAS ES CAPED ASSESSMENT. 3. NOTWITHSTANDING THE ABOVE GROUND OF APPEALS, THE LD . CIT (APPEALS)-3, LUDHIANA IN LAW AS WELL AS ON FACTS HAS ERRED IN RE JECTING THE APPLICATION OF THE APPELLANT UNDER RULE 46-A OF THE INCOME TAX RULES,1 962 FOR ADMISSION OF ADDITIONAL EVIDENCE. 4. THAT THE LD. CIT (APPEALS)-3, LUDHIANA IN LAW AS WE LL AS ON FACTS HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE LD. ASSESSIN G OFFICER AT RS. 17,41,695/- WHILE FRAMING ASSESSMENT OF THE APPELLANT U/S 144 R .W.S..147 OF THE ACT. 5. THAT THE LD. CIT (APPEALS)-3, LUDHIANA WHILE CONFIR MING THE ADDITION OF RS. 17,41,695/- MADE BY THE LD. ASSESSING OFFICER HAS E RRED IN NOT CONSIDERING THE EXPLANATION GIVEN AND EVIDENCE PRODUCED BEFORE HER EXPLAINING THE SOURCE OF CASH DEPOSIT MADE IN SAVING A/C OF THE APPELLANT DU RING THE RELEVANT YEAR. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 2 3. VIDE GROUND NO. 3 WHICH WAS ARGUED AT THE FIRST INSTANCE THE GRIEVANCE OF THE ASSESSEE IS THAT THE ADDITIONAL EVIDENCES FURNI SHED UNDER RULE 46A OF THE OF THE INCOME TAX RULE, 1962 (HEREINAFTER REFERRED TO AS RULES) WHICH GO TO THE ROOT OF THE MATTER WERE NOT CONSIDERED BY THE LD. C IT(A). 4. FACTS OF THE CASE RELATING TO THIS ISSUE IN BRIE F ARE THAT ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING THAT T HE SUM OF RS. 17,41,695/- WAS DEPOSITED BY THE ASSESSEE IN CASH IN HIS SAVING BAN K ACCOUNT MAINTAINED WITH HDFC LTD. 5. THE A.O. INITIATED THE PROCEEDING UNDER SECTION 147(A) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT), BY IS SUING THE NOTICE UNDER SECTION 148 OF THE ACT. SINCE THERE WAS NO COMPLIANCE FROM THE ASSESSEE SIDE, THE A.O. MADE THE ADDITION OF RS. 17,41,695/- UNDER THE HEAD INCOME FROM OTHER SOURCES. 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND FURNISHED THE ADDITIONAL EVIDENCES UNDER RULE 46A O F THE INCOME TAX RULES 1962 AND SUBMITTED THAT HE WAS SUFFERING FROM BAD HEALTH AND HAD MET WITH ROAD ACCIDENT IN DECEMBER 2014. IN SUPPORT OF THE ABOVE THE ASSESSEE FURNISHED THE MEDICAL REPORT AND COPY OF THE FIR. THE LD. CIT(A) OBSERVED THAT THE ASSESSEE MET WITH AN ACCIDENT WAY BACK IN DECEMBER 2014, THE REFORE IT HAD GOT NO CONNECTION WITH THE BAD HEALTH IN FINANCIAL YEAR 20 17. LD. CIT(A) REJECTED THE CONTENTION OF THE ASSESSEE FOR ADMITTING THE ADDITI ONAL EVIDENCES UNDER RULE 46A OF THE RULES AND ALSO OBSERVED THAT THE A.O. PA SSED THE ORDER AFTER GIVING SUFFICIENT OPPORTUNITY TO PRODUCE THE ADDITIONAL EV IDENCES. LD. CIT(A) SUSTAINED THE ADDITION MADE BY THE A.O. 7. NOW THE ASSESSEE IS IN APPEAL. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE COULD NOT PRODU CE THE RELEVANT EVIDENCES DUE TO HIS BAD HEALTH AND THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 144 OF THE ACT, EX-PARTE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD. IT WAS FURTHER SUBMITTED THAT THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE GO TO THE ROOT OF THE MATTER THEREFORE THE LD. CIT( A) OUGHT TO HAVE ADMITTED THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE RULES 19 62. 3 9. IN HIS RIVAL SUBMISSIONS THE LD. CIT DR SUPPORTE D THE ORDERS OF THE AUTHORITIES BELOW. 10. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE A.O. FRAMED THE ASSESSMENT EX-PARTE. IN THE FIR ST APPEAL, THE ASSESSEE FURNISHED THE ADDITIONAL EVIDENCES UNDER RULE 46A I N SUPPORT OF HIS CLAIM WHICH THE LD. CIT(A) HAD NOT ADMITTED. IN MY OPINION THE LD. CIT(A) OUGHT TO HAVE ADMITTED THE ADDITIONAL EVIDENCES WHICH GO TO THE R OOT OF THE MATTER PARTICULARLY WHEN THE A.O. FRAMED THE ASSESSMENT EX -PARTE AND COULD HAVE ASKED THE REMAND REPORT FROM THE A.O. ON THE ADDITI ONAL EVIDENCES FURNISHED BY THE ASSESSEE. I THEREFORE CONSIDERING THE TOTALI TY OF THE FACTS, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FIL E OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER CON SIDERING THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE BEFORE HIM AND BY PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 11. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 12/06/2019 (+! ,-.- 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