Sh. Darshan Singh Virk, Patiala V. ITO, W-5, Patiala

ITA 420/CHANDI/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7488 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 05-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 420/CHD/2018 (ASSESSMENT YEAR: 2014-15) SHRI. DARSHAN SINGH VIRK VS. THE ITO, #320, URBAN ESTATE, PHASE-1 WARD-5, PATIALA PATIALA PAN NO. ABZPV8788J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI TEJ MOHAN SINGH REVENUE BY : SHRI MANOJ KUMAR DATE OF HEARING : 21/06/2018 DATE OF PRONOUNCEMENT : 16/07/2018 ORDER PER DIVA SINGH, J.M. THE PRESENT APPEAL HAS BEEN FILED BY ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DT. 24/01/2018 OF CIT(A)-3, LUD HIANA PERTAINING TO A.Y. 2013-14 ON THE FOLLOWING GROUNDS OF APPEALS: 1. THAT THE LD. CIT(A) HS ERRED IN LAW AS WELL AS ON F ACTS IN UPHOLDING THE ADDITION OF RS. 15,93,800/- MADE ON ACCOUNT OF ALLE GED UNEXPLAINED DEPOSITS IN BANK ACCOUNT WHICH IS ARBITRARY AND UNJUSTIFIED. 2. THAT THE LD. CIT(A) HAS WITHOUT APPRECIATING THE FA CTS AS PLACED BEFORE HIM IN THE RIGHT PERSPECTIVE UPHELD THE ADDITION WH ICH IS ARBITRARY AND UNJUSTIFIED. 3. THAT THE LD. CIT(A) HAS FURTHER ERRED IN HOLDING TH AT THE ASSESSEE HAD AGREED TO THE ADDITION WHICH IS FACTUALLY INCORRECT AND AS SUCH UPHOLDING OF THE ADDITION ON A WRONG PREMISE IS ARBITRARY AND UNJUST IFIED. 4. THAT THE ORDER OF THE LD. CIT(A) IS ERRONEOUS, ARBI TRARY, OPPOSED TO LAW AND FACTS OF THE CASE AND IS THUS, UNTENABLE. 2. THE LD. AR INVITING ATTENTION TO GROUND NO. 2 RAISED BE FORE THE LD. CIT(A) AND THE FINDINGS ARRIVED AT IN PARA 3.2 SUBMITTED THA T THE DETAILED SUBMISSION EXTRACTED IN PARA 3.2 WHICH IS EXTRACT OF THE LE TTER DT. 19/01/2018 WOULD SHOW THAT THE ORDER HAS BEEN PASSED WITHOUT CONSIDERING THE FACTS. INVITING ATTENTION TO THE UNNUMBER ED PAGE 5 OF THE ASSESSMENT ORDER IT WAS HIS SUBMISSION THAT THE CONCLUSI ON OF THE AO THAT THE ASSESSEE HAS AGREED TO THE ADDITION IS BASED ON A MISCONCEPTION AND BASED ON WRONG FACTS. FOR THE SAID PURPOSES ATTEN TION WAS INVITED TO THE EXTRACT OF THE ORDER SHEET ENTRY DT. 20/07/2016, C OPY OF WHICH HAS BEEN FILED AT PAGE 31 TO 36. REFERRING TO THE RECORD, IT WAS HIS ITA NO. 420/CHD/2018 (ASSESSMENT YEAR: 2014-15) 2 OF 3 SUBMISSION THAT AT NO POINT OF TIME EITHER THE ASSESSEE O R THE COUNSEL APPEARING ON HIS BEHALF EVER AGREED TO THE ADDITION. THIS S PECIFIC FACT, IT WAS SUBMITTED, HAD BEEN ASSAILED BEFORE THE CIT(A) BEFORE WHOM THE FOLLOWING SPECIFIC GROUND HAD BEEN RAISED : 2. THAT THE LD. AO WAS NOT JUSTIFIED IN HOLDING TH AT THE ADDITION WAS MADE ON AGREED BASIS AS ANY SUCH AGREEMENT IS DENIED. 2.1 ADDRESSING THE ISSUE ON MERIT, IT WAS SUBMITTED THE ADDITION IS NOT MAINTAINABLE AND HAS BEEN SUSTAINED ON INCORRECT FACTS. HENCE, IT WAS HIS PRAYER THAT IT MAY BE DELETED. ALTERNATIVELY THE ISSUE MAY BE REMANDED DIRECTING THE AO TO ADDRESS THE CORRECT FACTS. 3. THE LD. SR. DR ON CONSIDERING THE IMPUGNED ORDER; THE SPECIFIC GROUND RAISED BY THE ASSESSEE BEFORE THE CIT(A) AS WELL AS THE ARGUMENTS ADVANCED EXTRACTED IN THE IMPUGNED ORDER ITSELF READ ALON GWITH THE ORDER SHEET ENTRY DT. 20/07/2016 OF THE AO SUBMITTED THAT TH E ISSUE MAY BE REMANDED TO THE AO. HOWEVER, IT WAS HIS REQUEST THAT RE LIEF MAY NOT BE GRANTED AT THIS STAGE WITHOUT FIRST GIVING TIME TO THE DEP ARTMENT TO ADDRESS THE FACTS. 4. I HAVE HEARD THE SUBMISSION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE AO IN VERY CATEGORICAL TER MS AT UNNUMBERED PAGES OF HIS ORDER HAS HELD; THIS FACT HAVE BEEN DISCUSSED VIDE ORDER SHEET ENTRY DATED 20/07/2016 WITH THE COUNSEL OF THE ASSESSEE, ASSESSEE HIMSELF AND HAVE OFFERED THE SAME FOR TAXATION. IT IS SEEN BEFORE THE LD. CIT(A) THE ASSESSEE SPECIFICALLY TOOK GROUND NO. 2 EXTRACT ED IN THE EARLIER PART OF THIS ORDER CHALLENGING THE CONCLUSION NAMELY THAT THE LD. AO WAS NOT JUSTIFIED IN HOLDING THAT THE ADDITION WAS MADE ON AGREED BASIS AS THERE WAS NO SUCH AGREEMENT . ON PERUSAL OF THE EXTRACT OF WRITTEN SUBMISSION DT. 19/01/2018 EXTRACTED IN PARA 3.2 FROM PAGE 2 TO 4 OF THE ORDER ON WHICH THE AO HAS RELIED, IT IS SEEN THAT THERE WAS NO SUCH CONCESSION. 20.7.2016 SHRI PRITPAL SINGH ANAND, ADV & SHRI DA RSHAN SINGHVIRK A ATTENDED. AS PER QUERRIES AND FACTS PLACED ON RECORD, THE ASSESSEE W AS AFFORDED AMPLE OPPORTUNITIES TO EXPLAIN THE CASH DEPOSIT IN HIS SAVING BANK A/C WITH INDIAN OVERSEAS BANK, URBAN ESTATE, PHASE-II, PATIALA. HE HAS STATED IN HIS SUB MISSIONS THAT THE DEPOSIT ARE FROM THE WITHDRAWALS FROM HIS OBC BANK A/C ON BEHALF OF M/S SWASTIK FILLING STATION, SHAMBHU, RAJPURA, WHICH WAS DEPOSITED IN MY SAVING BANK ACCOUNT AND THEN TRANSFERRED TO THE C/A OF M/S SWASTIK FILLING STATI ON WITH IOB, URBAN ESTATE PATIALA A/C NO. 0039. THE SAVING BANK OF THE A CO NSISTS DEPOSITS OF RS. 68,99,800/- BUT THE TRANSFERS TO C/A OF M/S SWASTIK FILLING STA TION IS OF RS. 5306000/-. THE ASSESSEE COULD NOT EXPLAIN THE BALANCE AMOUNT OF RS . 1593800 I.E. THE SOURCE OF SUCH DEPOSIT. HENCE, THE SAME HAS BEEN DETERMINED FOR TA XATION BY ADDING TO RETURNED INCOME OF THE A WITH PENALTY PROCEEDINGS U/S 271( 1)(C) OF THE ACT. CASH DISCUSSED. ITA NO. 420/CHD/2018 (ASSESSMENT YEAR: 2014-15) 3 OF 3 SD/- ITO 4.1 ON MERITS ALSO, AS PER SUBMISSIONS EXTRACTED IN TH E ORDER ITSELF, IT IS SEEN THAT THE ASSESSEE HAD ALSO ARGUED THAT THE FAC TS WERE INCORRECTLY APPRECIATED : (E) IT IS ALSO SUBMITTED THAT M/S SWASTIK FILLING STATION IS A SEPARATE ASSESSEE AND BEING ASSESSED SEPARATELY BY ITO RAJPURA. THUS AS EVIDENT FROM THE ABOVE FACT, THE APPELLANT HAD DULY FURNISHED THE REQUISITE DETAILS AS SPECIFICALLY REQUIRED BY THE A.O. AND MAINTAINED BY THE APPELLANT. (F) THE LEARNED ASSESSING OFFICER IN HER ENTHUSIASM OF MAKING ADDITION HAS NOT PROPERLY INVESTIGATED THE CASE AND HAD NOT GIVEN THE PROPER OPPORTUNITY TO MY CLIENT TO EXPLAIN HIS VIEW . THE LEARNED ASSESSING OFFICER HAS NOT APPLIE D HER MIND AND WITHOUT VERIFYING THE DOCUMENTS HAS MADE THE ADDITION U/S 69 OF THE ACT. (G) THE LEARNED ASSESSING OFFICER HAS ADOPTED THE B ANK STATEMENT OF M/S SWASTIK FILLING STATION AS THE BASIS OF ADDITION OF RS. 15,93,800.0 0 WHICH IS ABSURD AND TOTALLY WRONG. MY CLIENT S. DARSHAN HAS MADE CASH DEPOSITS TO THE TUNE OF 68,99,800. WHERE AS LEARNED ASSESSING ICER HAS MADE ADDITION BY FINDING THE DIF FERENCE BETWEEN THE CASH DEPOSITED BY DARSHAN SINGH VIRK IN HIS INDIAN OVERSEAS BANK AND THE CASH DEPOSITED BY SWASTIK FILLING STATION IN ACCOUNT NUMBER 238902000000039. WHICH IS TOTALLY ABSURD AND THE ADDITION MADE HAS NO RELEVANCE AND TOTALLY BAD IN L AW . BECAUSE BOTH ARE SEPARATE ASSESSEES AND CASH DEPOSITED IN M/S SWASTIK FILLING STATION CANNOT IN ANYWAY LINKED TO THE CASH DEPOSITED BY DARSHAN SINGH IN HIS SAVING ACCOU NT. 4.2. ACCORDINGLY, IN VIEW OF THE ABOVE, I FIND THAT THE CONCLU SIONS DRAWN BY THE CIT(A) CANNOT BE UPHELD AS THE SAID AUTHORITY HAS PROCEEDED ON INCORRECT FACTS. CONSIDERING THE PECULIAR FACTS AND CIRCUMS TANCES OF THE PRESENT CASE AS HAVE BEEN SET OUT HEREIN ABOVE, I FIND THAT THE CONCLUSIONS DRAWN BOTH BY THE LD. CIT(A) AND BY THE AO CANNOT BE UPHELD. ACCORDINGLY IN TERMS OF THE PRAYER OF THE PARTIES BEFORE THE BENCH THE ISSUES ARE RESTORED BACK TO THE FILE OF THE AO WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE AS SESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.07. 2018. SD/- (DIVA SINGH) JUDICIAL MEMBER DNS/AG/POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, THE CIT(A), THE D R ASSTT. REGISTRAR ITAT, CHANDIGARH