Vikas Behal S/O Sh. Subash Kumar Behal, Amritsar. V. The Dy. Commissioner of Income Tax, Amritsar.

ITA 400/ASR/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1435 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-08-2018
• Assessment Year: 2001-2002
• Appeal Filed On: 22-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R K MAGOW LD
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH.SANJAY ARORA, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.400 (ASR)/2016 ASSESSMENT YEAR: 2001-02 SH. VIKASH BEHAL, S/O SH. SUBASH KUMAR BEHAL, GALI BAGH CHAUDHARY, KATRA KHAZANA, AMRITSAR & NOW AT KOTHI NO.52, NEW ROOP NAGAR, HAKIMA GATE, NEAR SIDHU GAS AGENCY, AMRITSAR [PAN:AALPA 6298D] VS. DY. CIT, CIRCLE-II, AMRITSAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. R.K.MAGOW (LD. CA) RESPONDENT BY: SH. CHARAN DA SS (LD. DR) DATE OF HEARING: 16.08.2018 DATE OF PRONOUNCEMENT: 07.09.2018 ORDER PER N. K. CHOUDHRY (JM): THE INSTANT APPEAL HAS BEEN PREFERRED BY THE AS SESSEE/APPELLANT, ON FEELING AGGRIEVED AGAINST THE ORDER DATED 11.04.201 6, PASSED BY THE LD. CIT(A)-1, AMRITSAR, U/S. 250(6) OF THE I.T. ACT, 196 1 (HEREINAFTER CALLED AS THE ACT), FOR ASST. YEAR: 2001-02. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE NOTICE U /S 148 OF THE ACT WAS ISSUED ON 20.03.2008 AND SERVED UPON THE ASSESSEE ON 21.03 .2008 BY RECORDING THE REASONS AS PER PROVISIONS OF INCOME TAX ACT, 1961, IN RESPONSE TO WHICH THE ASSESSEE HAD FILED RETURN OF INCOME A T RS.46,880/- ON 29.04.2008. THE ASSESSMENT PROCEEDING WAS CHALLENGED BY TH E ASSESSEE ITA NO. 400 (ASR)/2016 (A.Y.: 2001-02) VIKASH BEHAL, AMRITSAR VS. DCIT 2 BEFORE THE ASSESSING OFFICER, ON THE GROUND THAT ALLEGED BANK ACCOUNTS WERE NOT MAINTAINED BY HIM AND HE IS ONLY A BENAMIDAR ACCOU NT HOLDER AND SOME OTHER PERSONS MAY HAVE OPERATED THESE ACCOUNTS WITHOUT HI S KNOWLEDGE AND TRANSACTIONS HAVE BEEN DONE IN HIS NAME, BY SOME OTHER PERSONS, THEREFORE, HE IS HAVING NO KNOWLEDGE ABOUT THE TRANSACTIONS, HOWE VER, THE ASSESSEE DID NOT FIND FAVOUR FROM THE ASSESSING OFFICER AND FINAL LY THE ASSESSING OFFICER MADE AN ADDITION OF RS.43,72,986/- AS WELL AS O F RS.6,71,957/-. THE ASSESSMENT ORDER WAS CHALLENGED BEFORE THE LD. CIT(A) , WHO PARTLY ALLOWED THE RELIEF TO THE ASSESSEE BY CONSIDERING THE PEA K AMOUNT OF ALL FOR BANKS COMBINED AT RS.16,75,848/- OUT OF RS.43,72,986. HOWEVER, AFFIRMED THE INITIATION OF ASSESSMENT PROCEEDING U/S 147 OF THE ACT . 3. ON FEELING AGGRIEVED AGAINST THE ORDER PASSED BY THE CIT(A), THE ASSESSEE HAS PREFERRED THE INSTANT APPEAL, ALTHOUGH, RAI SED SIX GROUNDS OF APPEAL, HOWEVER, CONTESTED THE IMPUGNED ORDER ON THE INITIATION OF ASSESSMENT PROCEEDINGS AND ISSUING A NOTICE U/S. 148 OF THE A CT. 4 . WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIE S, AS IN THE INSTANT CASE A NOTICE U/S. 148 WAS ISSUED WITH THE REASON THAT THE ASSESSEE WAS ENGAGED IN THE LARGE SCALE TRADING OF FOOD GRAINS AND MAINTAINING FOUR BANK ACCOUNTS DURING THE RELEVANT FINANCIAL YEAR AND MADE TR ANSACTIONS AMOUNTING TO RS.22,35,97,821/- DURING THE FINANCIAL Y EAR RELEVANT TO THE ASSESSMENT YEAR:2001-12 WHICH WAS NOT DISCLOSED TO THE DEPA RTMENT. THE NOTICE U/S 148 OF THE ACT WAS CHALLENGED BY THE ASSESSEE BEF ORE THE ASSESSING OFFICER, HOWEVER, NOT YIELDED ANY RESULT, THERE AFTER WENT IN APPEAL BEFORE THE LD. CIT(A). OUR ATTENTION WAS DRAWN BY TH E LD. AR TO THE REPORT DATED 20.03.2007 MADE BY THE ADIT(INV.), AMRITSAR. T HE RELEVANT PART OF THE REPORT IS REPRODUCED HEREIN BELOW. 08. FURTHER IN THIS REGARD STATEMENT OF SH. VIKASH BEHAL, S/O SH. SUBASH BEHAL, RESIDENT OF 1682/11, GALI BAGH CHOUDH ARY, KT. KHAZANA, AMRITSAR WAS RECORDED. HE STATED THAT AFTER THE ILL HEALTH OF HIS FATHER HE ITA NO. 400 (ASR)/2016 (A.Y.: 2001-02) VIKASH BEHAL, AMRITSAR VS. DCIT 3 TOOK OVER THE BUSINESS OF HIS FATHER WHO HAS BEEN D OING THE BUSINESS OF COMMISSION AGENT OF WHEAT AND PADDY. THE BUSINESS W AS BEING RUN IN THE NAME AND STYLE OF THE FIRM M/S BISHAN DASS & SONS. DHAB WASTI RAM, AMRITSAR. AS HIS FATHER DESIRED TO START A SEPARATE BUSINESS, HIS FATHER TOOK THE HELP OF HIS MATERNAL UNCLE (MAMMA) SH. GUL SHAN KUMAR BHATIA. SH. GULSHAN KUMAR BHATIA PROP. M/S DEWAN SINGH GURB ACHAN SINGH, BEGHTANAWALA, AMRITSAR AND RESIDENT OF GALI NO.2, I NSIDE BHAGATANA WALA, AMRITSAR, WAS DOING THE BUSINESS OF COMMISSIO N AGENT OF SALE AND PURCHASE OF FOOD GRAINS I.E. WHEAT AND PADDY. HE FU RTHER STATED THAT AFTER JOINING THE BUSINESS WITH SH. GULSHAN KUMAR BHATIA, HE ALONG WITH HIS UNCLE SH. GULSHAN KUMAR BHATIA AND HIS FATHER SH. S UBASH BELLI WENT TO THE PUNJAB NATIONAL BANK, BATALA ROAD, AMRITSAR FOR OPENING THE ACCOUNT. AT THE INSTANCE OF MY UNCLE SH. GULSHAN KUMAR BHALI A FOUR BANK ACCOUNTS IN FOLLOWING CONCERNS WERE OPENED. EVEN, THE ACCOUN T OPENING FORMS WERE FILLED UP HIS UNCLE SH. GULSHAN KUMAR BHATIA AND TH ESE ACCOUNTS WERE ALSO INTRODUCED BY HIM. THE FOLLOWING BANK ACCOUNTS WERE OPENED AT THE INSTANCE OF SH.GULSHAN KUMAR BHATIA S. NO . NAME OF THE CONCERN NAME OF THE ACCOUNT HOLDER NAME OF BANK BANK ACCOUNT NUMBER FINANCIAL YEAR TO WHICH THE TRANSACTIONS RELATE INTRODUCER 1. SH. VIKASH BEHAL M/S. SATKAR GENERAL MERCHANTS, KALU KHARA, AMRITSAR PUNJAB NATIONAL BANK, BATALA ROAD, AMRITSAR 2763 2001-01 GULSHAN KUMAR FOR M/S DEWAN SINGH GURBACHAN SINGH, A/C NO.CC413 2. SH. VIKASH BEHAL M/S SHREE RADHA RAMAN ENTERPRISES O/S GALI BHAGTANAWALA, AMRITSAR PUNJAB NATIONAL BANK, BATALA ROAD, AMRITSAR 2754 2001-01 GULSHAN KUMAR FOR M/S DEWAN SINGH GURBACHAN SINGH, A/C NO.CC413 3. SH. VIKASH BEHAL M/S ARUN AGENCIES, NEW GRAIN MARKET, BAGHTANAWALA, AMRITSAR PUNJAB NATIONAL BANK, BATALA ROAD, AMRITSAR 2769 2001-01 GULSHAN KUMAR FOR M/S DEWAN SINGH GURBACHAN SINGH, A/C NO.CC413 4. SH. VIKASH BEHAL M/S. SHREE GANESH EXPORTS (INDIA), RACE COURSE PUNJAB NATIONAL BANK, BATALA 2776 2001-01 GULSHAN KUMAR FOR M/S DEWAN ITA NO. 400 (ASR)/2016 (A.Y.: 2001-02) VIKASH BEHAL, AMRITSAR VS. DCIT 4 ROAD, AMRITSAR ROAD, AMRITSAR SINGH GURBACHAN SINGH, A/C NO.CC413 HE WAS FURTHER ASKED TO TELL HOW MANY CHEQUES BOOK WERE GOT ISSUED. HE STATED THAT AFTER OPENING OF THESE BANK ACCOUNTS, ONE CHEQUE BOOK IN EACH ACCOUNT WERE GOT ISSUED. HE WAS ASKED TO EXPLAIN HOW DID HE USE TO ISSUE THE CHEQUES. HE STATED THAT HE USED TO SIGN THE BLANK CHEQUES AT THE INSTANCE OF HIS UNCLE SH. GULSHAN KU MAR BHATIA, WHO LATER ON USED TO FILL UP THE NAME OF THE PARTIES AND AMOU NT UNDER HIS OWN HAND WRITING. HE FURTHER STATED THAT HE NEVER WENT TO BA NK EITHER TO DRAW THE PAYMENT OR RECEIVED THE PAYMENT. GENERALLY, SELF AC COUNT CHEQUES WERE ISSUED UNDER HIS HAND WRITING AND PAYMENT WERE COLL ECTED/DRAWN BY HIS UNCLE SH. GULSHAN KUMAR BHATIA AND HE MADE THE PAYM ENT TO THE CONCERNED PARTIES/PERSONS. HE DID NOT KNOWN ANY THI NG ABOUT THE TRANSACTIONS MADE WITH THESE ACCOUNT. HE STATED THA T HE DID NOT MAINTAIN ANY BOOKS OF ACCOUNT OF THESE CONCERNS. EVEN, HE DI D NOT MAINTAIN THE ACCOUNT OF HIS CONCERN AND HIS INDIVIDUAL RETURN HA S BEEN FILED ON ESTIMATED BASIS. FROM THE ENCLOSED STATEMENT, IT IS CLEAR THAT SH. V IKASH BEHAL IS ONLY A BENAMIDAR OF THESE ACCOUNTS WHEREAS THE ACTUAL BENEFICIARY IS SH. GULSHAN KUMAR BHATIA . 5. FROM THE REPORT OF ADIT (INV.), AMRITSAR, WHEREIN, I T IS WRITTEN THAT FROM THE ENCLOSED STATEMENT, IT IS CLEAR THAT SH. VIKASH BEHAL IS ONLY A BANAMIDAR OF THESE ACCOUNTS, WHEREAS THE ACTUAL BENEFICIAR Y IS SH. GULSHAN KUMAR BHATIA. THE REPORT DATED 20.03.2007 WAS AVAILA BLE WITH THE ASSESSING OFFICER AND EVEN OTHERWISE THE ASSESSEE HAS TAKEN THE CLEA R STAND THAT HE WAS NEVER INVOLVED IN ANY OF THE TRANSACTIONS AS HE IS ON LY THE BENAMIDAR ACCOUNT HOLDER AND SOME OTHER PERSONS OPERATED THESE ACCOUN T WITHOUT HIS KNOWLEDGE AND THE TRANSACTIONS WERE DONE BY THEM IN TH E ASSESSEES NAME AND THEREFORE, THE ASSESSEE HAS NO KNOWLEDGE ABOUT THE T RANSACTIONS. HOWEVER, THE ASSESSING OFFICER HAS NOT TAKEN INTO CONSIDERA TION THE INVESTIGATION REPORT OF ADIT(INV.) AND MADE AN ADDIT ION WHICH WAS SUBJECTED TO APPEAL BEFORE THE LD. CIT(A) EVEN THE LD. CIT(A) HAS ALSO NOT CONSIDERED THE PARAMOUNT FACT, WHICH WAS OBSERVED BY THE ADIT(INV .) THAT SH. VIKASH BEHAL (ASSESSEE) IS ONLY A BENAMIDAR ACCOUNT HOLDER OF THE SE ACCOUNTS, ITA NO. 400 (ASR)/2016 (A.Y.: 2001-02) VIKASH BEHAL, AMRITSAR VS. DCIT 5 WHEREAS THE ACTUAL BENEFICIARY IS SH. GULSHAN KUMAR BHA TIA. IT IS ALSO UNDISPUTED FACT THAT REVENUE AUTHORITIES HAVE NOT TAK EN ANY ACTION AGAINST SH. GULSHAN KUMAR BHATIA AGAINST WHOM THE ASSESSMENT WAS TO BE MADE. HENCE, CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY JUSTIFICATION FOR INITIATION OF ASSESSMENT PROCEEDINGS, HE NCE, CONSEQUENTLY, THE SAME IS LIABLE TO BE SET ASIDE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.09.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED:07.09.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. VIKASH BEHAL, S/O SH. SUBASH KUMAR BEH AL, GALI BAGH CHAUDHARY, KATRA KHAZANA, AMRITSAR & NOW AT KOTHI NO.52, NEW ROOP NAGAR, HAKIMA GATE, NEAR SIDHU GAS A GENCY, AMRITSAR (2) THE DY. CIT, CIRCLE-II, AMRITSAR (3) THE CIT(A),1, AMRITSAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER