Shri Vinay Jain, Ferozepur Cantt. V. The Income-tax Officer, Ferozepur

ITA 381/ASR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0483 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.381(ASR)/2014 ASSESSMENT YEAR: 2009-10 SHRI VINAY JAIN PROP. M/S. BM MEDIA HOUSE NO.50 STREET NO.3 FEROZEPUR CANTT. PAN:AFFPJ5362J VS. INCOME TAX OFFICER, WARD III (2), FEROZEPUR. (APPELLANT) (RESPONDENT) APPELLANT BY: WRITTEN SUBMISSIONS RESPONDENT BY: SH. UMESH TAKYAR (DR.) DATE OF HEARING: 31.05.2016 DATE OF PRONO UNCEMENT: 25.07.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE OR DER OF LEARNED CIT(A), BATHINDA, DATED 25.03.2014 FOR ASST. YEAR:2 009-10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. I) THAT THE LEARNED COMMISSIONER OF INCOME TAX APP EAL, BTHINDA HAS ERRED IN CONFIRMING THE DISALLOWANCE OF DEPRECIATIO N AMOUNTING TO RS.58,320/- WITHOUT CONSIDERING THE SUBMISSION/EVID ENCE MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS DUR ING THE APPELLATE PROCEEDINGS. II) THAT THE LEARNED COMMISSIONER OF INCOME TAX AP PEAL, BATHINDA ERRED IN CONFIRMING THE ADDITION OF RS.18,32,000/- ON ACC OUNT OF CASH DEPOSITED IN THE SAVING ACCOUNT MAINTAINED WITH AXIS BANK BY THE ASSESSEE INSTEAD OF CURRENT ACCOUNT IN SPITE OF THE FACTS THAT THE A SSESSEE WAS HAVING SUFFICIENT CASH IN HAND AS PER CASH BOOK ON THE DAT ES WHEN THE CASH WAS DEPOSITED. III) THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL), BATHINDA IS NOT BASED ON THE FACTS AND CIRCUMSTANCE S OF THE CASE. ITA NO.381 (ASR)/2014 ASST. YEAR : 2009-10 2 3. AT THE TIME OF HEARING, NO BODY WAS PRESENT ON B EHALF OF ASSESSEE, HOWEVER, THE LEARNED COUNSEL OF THE ASSESSEE HAD FI LED WRITTEN SUBMISSIONS AND HAD REQUESTED THAT THE CASE OF THE ASSESSEE BE DISPOSED OFF ON THE BASIS OF WRITTEN SUBMISSIONS. 4. THE LEARNED DR WAS HEARD, WHO HEAVILY PLACED HIS RELIANCE ON THE ORDER OF AUTHORITIES BELOW. 5. WE HAVE GONE THROUGH THE WRITTEN SUBMISSIONS AND HAVE HEARD THE LEARNED DR. WE FIND THAT ASSESSEE HAD DECLARED AN I NCOME OF RS.3,95,010/-. THE CASE OF THE ASSESSEE WAS SELECTE D FOR SCRUTINY. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER O BSERVED THAT ASSESSEE HAD CLAIMED DEPRECIATION OF RS.58,320/- ON SHOP. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS AS TO THE DATE OF PURCHASE OF SHOP. ON PERUSAL OF PURCHASE DEED FILED BY ASSESSEE THE ASSE SSING OFFICER OBSERVED THAT THE SAID PURCHASE DEED WAS OF A RESIDENTIAL HO USE AND THEREFORE ASSESSEE WAS CONFRONTED. THE ASSESSEE CONTENTED THA T THIS RESIDENTIAL HOUSE IS BEING USED FOR BUSINESS PURPOSES, BUT HE C OULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE, THEREFORE, THE DEPRECIATION C LAIM OF THE ASSESSEE WAS DISALLOWED. THE ASSESSING OFFICER FURTHER OBSER VED THAT ASSESSEE HAD MADE CASH DEPOSITS IN HIS SAVING BANK ACCOUNT MAINT AINED WITH THE AXIS BANK. THE ASSESSEE WAS CONFRONTED TO EXPLAIN T HE CASH DEPOSITS. THE ASSESSEE SUBMITTED THAT THE CASH DEPOSITS WERE NOT EXPLAINABLE ITA NO.381 (ASR)/2014 ASST. YEAR : 2009-10 3 THEREFORE, HE SURRENDERED THIS AMOUNT. THE ASSESSIN G OFFICER HAS REPRODUCED THE SURRENDER LETTER IN THE ASSESSMENT O RDER, WHICH IS REPRODUCED BELOW. WITH DUE RESPECT, AS PER SCRUTINY ASSESSMENT PROCE EDINGS UNDER WAY WITH YOUR GOODSELF I SUBMIT HERE AS UNDER THAT DURI NG THE SCRUTINY ASSESSMENT PROCEEDING GOING TO THE COMPLETE. DURING THE ASSESSMENT PROCEEDINGS I/WE HAVE BEEN CONFRONTED WITH THE CASH ENTRY OF RS.18,32,000/- DEPOSITED IN THE AXIS BANK ACCOUNT N O.042010100225182 SITUATED AT LUDHIANA. THE SAID ENTRY ARE NOT EXPLAI NABLE BY US. AS SUCH WE SURRENDER THIS AMOUNT OF RS.18,32,000/-. WE ARE READY TO DEPOSIT THE TAX CALCULATED ON THIS AMOUNT PAST VIDE ORDER OR SC RUTINY ASSESSMENT FOR THE YEAR 2009-10. 6. AGGRIEVED WITH THE ORDER THE ASSESSEE FILED APPE AL BEFORE LEARNED CIT(A) AND SUBMITTED THAT THE PROPERTY WAS SITUATED IN A COMMERCIAL AREA AND ALSO FILED PHOTO COPIES OF SALE DEEDS, BUT DID NOT FILE THE APPLICATION UNDER RULE 46A, THEREFORE, LEARNED CIT( A) REJECTED THE GROUNDS OF APPEAL REGARDING THE CLAIM OF DEPRECIATI ON ON SHOP. 7. SIMILARLY, THE LEARNED CIT(A) DID NOT AGREE WITH THE CONTENTION OF ASSESSEE THAT THE SAID SURRENDER LETTER WAS SIGNED BY BROTHER OF ASSESSEE. THE LEARNED CIT(A) DID NOT AGREE WITH THE CONTENTIO N AS HE HELD THAT ASSESSEE WAS NOT PERSONALLY APPEARING AND THEREFORE , HE HAD AUTHORIZED COUNSEL FOR REPRESENTING HIS CASE AND THEREFORE, TH E ACCEPTANCE FILED ON BEHALF OF ASSESSEE CANNOT BE IGNORED. SIMILARITY, H E HELD THAT ON MERITS THE ASSESSEE DID NOT FILE ANY EVIDENCE REGARDING AV AILABILITY OF CASH. 8. IN THIS RESPECT, WE FIND THAT IT IS AN UNDISPUTE D FACT THAT THE SURRENDER LETTER WAS NOT SIGNED BY ASSESSEE. THE AS SESSEE HAD SUBMITTED ITA NO.381 (ASR)/2014 ASST. YEAR : 2009-10 4 BEFORE LEARNED CIT(A) THAT HE HAD EVIDENCE OF AVAIL ABILITY OF CASH IN HAND. THE LEARNED CIT(A) SHOULD HAVE ALLOWED THE ASSESSEE AN OPPORTUNITY TO EXPLAIN THE AVAILABILITY OF CASH IN HAND IN THE INT EREST OF SUBSTANTIAL JUSTICE. THEREFORE, WE DEEM IT APPROPRIATE TO REMIT THE ISSUE BACK TO THE OFFICE OF LEARNED CIT(A), WHO SHOULD DECIDE THE ISS UE AFRESH AND SHOULD EXAMINE THE AVAILABILITY OF CASH AS PER BOOKS OF AC COUNT OF ASSESSEE AND SHOULD ALSO EXAMINE THE DEPRECIATION CLAIM OF THE A SSESSEE. NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OPPOR TUNITY OF BEING HEARD. 9. IN VIEW OF THE ABOVE, THE APPEAL FILED BY ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 .07.2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:25.07.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER