Dhiraj Raj Deb, Bhubaneswar V. ITO Ward-2(3), Bhubaneswar

ITA 425/CTK/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3778 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 07-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAV AN KUMAR GADALE, JUDICIAL MEMBER ITA NO.425 /CTK/2013 ASSESSMENT YEAR : 200 8 - 2009 SRI DHIRAJ RAJ DEV, FLAT NO.101, HARAPRIYA APARTMENT, VIVEKANANDA MARG, OLD TOWN, BHUBANESWAR. VS. ITO, WARD 2(3), BHUBANESWAR. PAN/GIR NO. AEHPD 8727 N (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 22 /05/ 2017 DATE OF PRONOUNCEMENT : 26 /05/ 2017 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - II, BHUBANESWAR , DATED 26 .3.2013 , FOR THE ASSESSMENT YEAR 2008 - 09 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT ORDER DATED 27,12.2010 PASSED BY THE LD ASSESSING OFFICER & ORDER DATED 26.03.2013 PASSED BY CIT(APPEALS ) - II, BHUBANESWAR ARE VOID ABINITIO, AGAINST THE NATURAL JUSTICE, UNJUSTIFIED .ERRONEOUS .ARBITRARY , CONTRARY TO FACTS ,BAD IN LAW , WITHOUT JURISDICTION AND /OR IN EXCESS OF JURISDICTION AND LEGALLY UNTENABLE. 2 ITA NO.425 /CTK/2013 ASSESSMENT YEAR : 2008 - 09 2. THAT THE LD CIT APPEALS - II, BHUBANESWAR HAS ERRED ON FACT AS WELL AS ON LAW IN DISMISSING THE APPEAL IN LIME LINE, EVEN WITHOUT CONSIDERING THE MERITS OF THE CASE OTHERWIS E. ' 3. FOR THAT THE ADDING OF RS.31,59,000/ - ON ACCOUNT OF CASH DEPOSIT UNDER UNDISCLOSED SOURCE IS ARBITRARY ILLEGAL AND NOT SUSTAINABLE ON FACT AND LAW AND AS SUCH ARE LIABLE TO DELETED. 4. FOR THAT ADDITION OF RS.91,59,150/ - ON AC COUNT OF OTHER THAN CASH DEPOSIT UNDER UNDISCLOSED SOURCE ON CERTAIN CONJECTURE SURMISE WITHOUT CONDUCTING ANY ENQUIRY UNDER THE HEAD UNEXPLAINED SOURCE ARE NOT SUSTAINABLE ON FACT AND LIABLE TO BE DELETED. 5. THAT THE ASSESSEE WAS DEPRIVED FROM THE BENE FIT OF REASONABLE OPPORTUNITY OF BEING HEARD AND DEPRIVED FROM THE BENEFIT OF NATURAL JUSTICE. 6. THAT THE ORDER OF ASSESSMENT AS FRAMED IS OTHERWISE BAD IN LAW AND LIABLE TO BE QUASHED. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD TO SUPPLEMENT MODIFY TH E GROUNDS HEREIN ABOVE BEFORE OR AT THE HEARING OF THE APPEAL. 8. THAT FOR THESE GROUNDS AND OTHER GROUNDS IF ANY THAT WILL BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF ASSESSMENT BE QUASHED & THE DEMAND BE ANNULLED IN THE INTEREST O F JUSTICE AND EQUITY. 3 . IN GROUND NOS.3,4 & 5 OF THE APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.31,59,000/ - ON ACCOUNT OF CASH DEPOSIT FROM UNDISCLOSED SOURCES AND RS.91,59,150/ - ON ACCOUNT OF OTHER TH AN CASH DEPOSITS WITHOUT ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND DEPRIVED HIM FROM THE BENEFIT OF NATURAL JUS TICE WITHOUT CONSIDERING THE MERIT OF THE CASE AND OTHERWISE. 4 . NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY SPEED POST ON 9.5.2017 FIXING THE DATE OF HEARING OF APPEAL ON 22.5.2017. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE CASE WAS CALLED FOR HEARING AND NEITHER 3 ITA NO.425 /CTK/2013 ASSESSMENT YEAR : 2008 - 09 ANY ADJOURNMENT APPLICATION WAS FILED. THE APPEAL WAS FIXED FOR HEARING ON 25.5.2015 W HEN THE HEARING WAS ADJOURNED AT THE REQUEST OF LD A.R. OF THE ASSESSEE TO 1.8.2016. THE APPEAL WAS AGAIN ADJOURNED TO 31.8.2016 AT THE REQUEST OF LD A.R. OF THE ASSESSEE TO 22.5.2017. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THE BENCH P ROCEED TO HEARING AND DISPOSE OF THE APPEAL CONSIDERING THE SUBMISSION OF LD D.R. AND MATERIALS AVAILABLE ON RECORD. 5 . THE FACTS OF THE CASE ARE THAT THE CIT(A) FIXED THE HEAR ING ON 22.7.2011 AND THE ASSESSEE HAD FILED ADDITIONAL EVIDENCES BEFORE THE CIT(A) AND THE EVIDENCES WERE FORWARDED TO THE ASSESSING OFFICER BY THE CIT(A) ON 18.10.2011 DIRECTING HIM TO SEND THE REMAND REPORT ON OR BEFORE 27.10.2011. SINCE THE REPORT WAS NOT RECEIVED IN TIME, A REMINDER WAS SENT ON 27.10.2011. THE CIT(A) DID NOT RECEIVE THE REMAND REPORT EVEN IN THE FIRST WEEK OF JANUARY, 2012 FROM THE ASSESSING OFFICER AND ACCORDINGLY, ON 9.1.2012, THE CIT(A ) DIRECTED THE AR OF THE ASSESSEE TO SUBSTANTIATE THE GROUND NO S.3 & 4 BY SUBMITTING THE NAMES, ADDRESSES AND OTHER EVIDENCES IN SUPPORT OF THE GROUNDS. IN OTHER WORDS, THE CIT(A) REQUIRED THE LD A.R. OF THE ASSESSEE TO SUBSTANTIATE THE SOURCES OF CASH DEPOSIT IN THE BANK ACCOUNT OTHER THAN CASH AMOUNTING TO RS.91,59 ,150/ - . LD A.R. OF THE ASSESSEE WAS REQUIRED TO FURNISH THE COMPLIANCE ON 3.2.2012. THE CIT(A) ADJOURNED THE HEARING FOUR TIMES AT THE REQUEST OF LD A.R. OF THE ASSESSEE BETWEEN FEBRUARY TO SEPTEMBER, 2012. LD A.R. APPEARED ON 25.10.2012 4 ITA NO.425 /CTK/2013 ASSESSMENT YEAR : 2008 - 09 AND THE CIT(A) REQUIRED HIM TO SUBMIT THE COMPLIANCE AS REQUIRED ON 9.1.2012. THE CIT(A) ALSO SENT A REMINDER TO THE ASSESSING OFFICER FOR SUBMITTING THE OVERDUE REMAND REPORT. THE ASSESSING OFFICER SENT THE REMAND REPORT DATED 4.1.2012, COPY OF WHICH WAS HANDED OVER T O LD A.R. OF THE ASSESSEE ON 21.11.2012. THE CIT(A) HAS STATED THAT SINCE THE ASSESSING OFFICER HAD BEEN ASKED TO SEND A REMAND REPORT THROUGH PROPER CHANNEL, A FURTHER REPORT DATED 10.12.2012 ALONGWITH A COPY OF THE REMAND REPORT DATED 4.1.2012 WAS RECEI VED BY HIM ON 11.12.2012, THE COPY OF THE FRESH REMAND REPORT WAS HANDED OVER TO LD A.R. OF THE ASSESSEE ON 15.1.2013. THE CASE WAS ADJOURNED TO 11.2.2013 AND 8.3.2013 AND NO REJOINDER WAS FILED BY THE ASSESSEE. THE MATTER WAS FINALLY DISCUSSED WITH THE LD A.R. OF THE ASSESSEE AND THE CIT(A) FOUND THAT LD A.R. DOES NOT HAVE ANY REJOINDER TO FILE. ACCORDINGLY, THE CIT(A) DECIDED THE APPEAL ON THE GROUND THAT THE ASSESSEE HAS NOTHING FURTHER TO ADD IN SPITE OF THE ASSESSING OFFICERS REMAND REPOR T DATED 4. 1.2012 AND 10.12.2012 AND, THEREFORE, THE ADDITION OF RS.31,59 ,000/ - ON ACCOUNT OF CASH DEPOSIT AND RS.91,59,150 / - ON ACCOUNT OF DEPOSITS OTHER THAN CASH WAS CONFIRMED BY HIM. 6 . ON THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE CIT(A) H AS CONFIRMED THE ADDITION OF RS.31,59,000/ - AND RS.91,59,150/ - MADE BY THE ASSESSING OFFICER ON THE GROUND THAT LD A.R. HAS NOT FILED A REJOINDER TO THE REMAND REPORT OF THE ASSESSING OFFICER. THE CIT(A) HAS 5 ITA NO.425 /CTK/2013 ASSESSMENT YEAR : 2008 - 09 NOT CONSIDERED THE MERITS OF THE ADDITION ON TH E BASIS OF MATERIALS AVAILABLE ON RECORD BEFORE ADJUDICATING THE SAME. WE ARE THEREFORE OF THE CONSIDERED OPINION THAT IN ORDER TO RENDER SUBSTANTIAL JUSTICE, THE ISSUE SHOULD BE REMANDED TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE ISSUES AFRESH AFTER CONSIDERING THE MATERIALS AVAILABLE ON RECORD AND THE SUBMISSIONS OF THE ASSESSEE AFTER GIVING THE REASONS FOR NOT ACCEPTING THE SUBMISSIONS OF THE ASSESSEE. NEEDLESS TO MENTION THAT THE ASSESSEE SHALL BE ALLOWED A REASONABLE OPPORTUNITY OF HEARING BEFORE ADJUDICATING THE ISSUE AFRESH. 7 . IN THE RESULT, THE APPEAL F ILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 /05/2017 IN THE PRESENCE OF PARTIES. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 26 /05/2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : SRI DHIRAJ RAJ DEV, FLAT NO.101, HARAPRIYA APARTMENT, VIVEKANANDA MARG, OLD TOWN, BHUBANESWAR. 2. THE RESPONDENT. ITO, WARD 2(3), BHUBANESWAR. 3. THE CIT(A) - II, BHUBANESWAR 4. PR.CIT , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY// 6 ITA NO.425 /CTK/2013 ASSESSMENT YEAR : 2008 - 09