Shri Greesh Chander, Chandigarh V. ITO Ward-3(2), Chandigarh

ITA 44/CHANDI/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1673 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-06-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 13-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEENAKSHI VOHRA CIT
• Assessee Lawyers: B K NOHRIA
• Keywords: Invalid notice; Additional evidence; Assessment record; Set aside
• Section: 142(1); 147; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH (VIRTUAL COURT) .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO. 44/CHD/2020 ASSESSMENT YEAR : 2010-11 SHRI GREESH CHANDER S/O SHRI RAJ KUMAR CHOPRA H.NO. 3081, SECTOR 20-D, CHANDIGARH THE ITO WARD 3(2) ROOM NO. 322 AAYAKAR BHAWAN SECTOR-17, CHANDIGARH-160017 PAN NO: ACOPC1012G APPELLANT RESPONDENT !' ASSESSEE BY : SHRI B.K. NOHRIA, CA #!' REVENUE BY : SMT. MEENAKSHI VOHRA, ADDL. CIT $ %! & DATE OF HEARING : 29/06/2021 '()*! & DATE OF PRONOUNCEMENT : 29/06/2021 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT. 16/10/2019 OF LD. CIT(A)-1 CHANDIGARH. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED CIT (A)-L CHANDIGARH HAS ERRED IN LAW AND FACTS IN UPHO LDING THE CONTENTION OF LEARNED AO THE APPELLANT HAS FAILED TO PROVIDE NATUR E AND SOURCE OF CASH DEPOSIT WHICH IS AGAINST THE PRINCIPLE OF PREPONDER ANCE OF PROBABILITY. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED CIT (A)-L CHANDIGARH HAS ERRED IN LAW AND FACTS IN UPHO LDING THE CONTENTION OF THE LEARNED A 0 BY TREATING INFORMATION RECEIVED THROUG H AIR TRANSACTION AS VALID EVIDENCE AND NOT VERIFYING THE SAME FROM THE BANK B EFORE RECORDING OF THE REASONS AND BEFORE COMPLETION OF ASSESSMENT. 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED CIT (A)-L CHANDIGARH HAS ERRED IN LAW AND FACTS IN UPHOLDING THAT THE LEARNED A.O. HAS RECORDED VALID REASONS TO BELIEVE INSPITE OF TH E FACT THAT THEY ARE BASED ON INVALID NOTICES AND TREATING CASH DEPOSIT AS INCOME UNDER SECTION 2(24) OF THE INCOME TAX ACT, 1961. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, AMEND OR DELETE ONE OR MORE OF THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DISPOSED OFF. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE BASIS OF INFORMATION THAT THE ASSESSEE HAD DEPOSITED CASH OF RS. 10,00,000/- OR MORE IN HIS SAVING BANK ACCOUNT REOPENED THE ASSESSMENT BY INITIATING THE P ROCEEDINGS UNDER SECTION 147 R.W.S 148 OF THE INCOME TAX ACT, 1961 (HEREINAF TER REFERRED TO AS ACT). THE A.O. MENTIONED IN PARA 2.2 OF THE IMPUGNED ORDER TH AT THE NOTICE UNDER SECTION 142(1) WAS SERVED UPON THE ASSESSEE THROUGH AFFIXTU RE ON 15/11/2017 REQUIRING HIM TO SHOW CAUSE ON OR BEFORE 21/11/2017 AS TO WHY THE ASSESSMENT MAY NOT BE COMPLETED UNDER SECTION 144 OF THE ACT BY MAKING AN ADDITION OF RS. 13,50,000/- WHICH WAS THE CASH DEPOSITED IN THE BAN K ACCOUNT. SINCE NOBODY APPEARED BEFORE THE A.O. AND NO RETURN WAS FURNISHE D IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT, THE A.O. MADE THE ADD ITION OF RS. 13,50,500/- IN THE HANDS OF THE ASSESSEE. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND FURNISHED AN APPLICATION REQUESTING FOR ADMISSION O F THE ADDITIONAL EVIDENCE UNDER RULE 46A OF THE ACT. THE ASSESSEE SUBMITTED T HAT THE CASH DEPOSITED IN THE ASSESSEES BANK ACCOUNT WAS OUT OF THE WITHDRAW AL OF CASH FROM THE SAVING BANK ACCOUNT OF SHRI R.K. CHOPRA, FATHER OF THE ASS ESSEE. THE LD. CIT(A) FORWARDED THE ADDITIONAL EVIDENCES TO THE A.O. AND ASKED FOR HIS REMAND REPORT ON THE SAME. THE A.O. COMMENTED AS UNDER: B) COMMENTS OF ADDITIONAL EVIDENCE U/S 46A(3) THE ASSESSEE'S CONTENTION THAT HE WAS PREVENTED BY SUFFICIENT CAUSE FROM PROVIDING THE INFORMATION/ DOCUMENTS SINCE HE WAS O UT OF INDIA FOR THE PERIOD W.E.F. 18.07.2017 TO 05.12.2017 IS NOT CORRECT. AS ALREADY DISCUSSED ABOVE, THE 3 ASSESSEE HAD REFUSED TO ACCEPT THE NOTICE DATED 31. 03.2019 ISSUED U/S 148 OF THE ACT AND HAD NOT FILED ANY RETURN OF INCOME IN RESPO NSE TO THE NOTICE U/S 148 OF THE ACT. NOTICE U/S 142(1) OF THE ACT ALONG WITH QU ESTIONNAIRE WAS ISSUED TO THE ASSESSEE ON 29.05.2017 AND THE CASE WAS FIXED FOR H EARING ON 10.06.2017. THE ASSESSEE NEITHER ATTENDED THE ASSESSMENT PROCEEDING NOR FILE ANY REPLY. THE ASSESSEE DID NOT EVEN SOUGHT ANY ADJOURNMENT. FROM THESE FACTS IT IS VERY CLEAR THAT THE NOTICES WERE ISSUED AND DULY SERVED UPON THE ASSESSEE BEFORE HIS DEPARTURE ON 18.07.2017. BUT THE ASSESSEE HAD NEITHER RESPONDED TO THESE NOTICES NOR HAD BOTHERED TO INTI MATE THE OFFICE ABOUT HIS DEPARTURE FROM INDIA. THUS THE ASSESSEE WAS NOT PRE VENTED BY ANY SUFFICIENT CAUSE TO FURNISH INFORMATION BUT HE HAD NOT COOPERA TED IN THE ASSESSMENT PROCEEDINGS DELIBERATELY. ' 4.1 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE AND THE REMAND REPORT OF THE A.O. ADMITTED THE ADDITIONAL E VIDENCES IN THE FORM OF COPY OF BANK ACCOUNT STATEMENT OF SHRI R.K. CHOPRA FATHER OF THE ASSESSEE. THE LD. CIT(A) HOWEVER SUSTAINED THE ADDITION MADE BY T HE A.O. BY OBSERVING IN PARA 5.2 OF THE IMPUGNED ORDER AS UNDER: 5.2 HELD: I HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER A ND EXAMINED THE REPLY OF THE ASSESSE AND ASSESSMENT RECORD. ADDITIO NAL EVIDENCE SUBMITTED DURING APPELLATE PROCEEDINGS STAND ADMITTED SUPRA. REMAND REPORT WAS CALLED FOR AND THE SAME WAS CONFRONTED TO THE APPELLANT. A O DURING REMAND PROCEEDINGS HAS ISSUED LETTER TO THE APPELLANT FOR FURNISHING DOCUMENTS IN SUPPORT OF CASH DEPOSITS AND COPIES OF ITR OF HIS FATHER SH .R.K. CHOPRA ALONGWITH HIS CASH FLOW STATEMENT FOR AY 2009-10 & 2010-11 VIDE LETTER DATED 30.07.2019. HE FURTHER VIDE LETTER DATED 07.08.2019 ASKED THE APPELLANT TO FURNISH COPIES OF ITRS ALONGWITH COMPUTATION CHART OF INCOME, BALANCE SHEE T, PROFIT & LOSS ACCOUNT OF SH.R.K. CHOPRA FOR AY 2009-10 & 2010-11. AR SUBMITT ED THE SAME DURING REMAND PROCEEDINGS. HENCE, OBJECTION OF LACK OF OPPORT UNITY BECOMES INFRUCTUOUS. DURING APPELLATE PROCEEDINGS, APPELLANT ARGUED TH AT CASH WAS DEPOSITED IN HIS BANK ACCOUNT OUT OF CASH WITHDRAWN BY HIS FATHER FR OM HIS BANK ACCOUNT. ON PERUSAL OF BANK STATEMENT OF SH. GREESH CHANDER-THE APPELLANT AND HIS FATHER SH. R.K. CHOPRA, IT IS OBSERVED THAT CASH DEPOSIT ENTRI ES IN THE ACCOUNT OF ASSESSEE TOTALING TO THE TUNE OF RS. 12,40,000/- WERE REFLEC TING IN VARIOUS INTERVALS STARTING FROM 02.04.2009 TO 31.03.2010. HOWEVER, THE WITHDRA WAL ENTRY TO THE TUNE OF RS.23,00,000/- REFLECTING IN THE ACCOUNT OF SH. R.K . CHOPRA (FATHER OF THE ASSESSEE) WAS MADE THROUGH CHEQUE IN SINGLE TRANSACTION ON 09 .12.2009 WHICH DOES NOT JUSTIFY THE CASH DEPOSITS MADE IN THE ACCOUNT OF TH E ASSESSEE. MOREOVER, THE ASSESSEE HAS NOT BROUGHT ANY EVIDENCE ON RECORD TO AUTHENTICATE HIS CLAIM THAT THE CASH DEPOSIT OF RS. 12,40,000/- & RS. 1,10,000/ - IN HIS BANK ACCOUNTS WAS OUT OF WITHDRAWALS/ADJUSTMENT OF CASH FROM HIS FATHER'S BA NK ACCOUNT. THE ONUS IS, THEREFORE, UPON' THE ASSESSEE TO PROVE THE SOURCE O F CASH DEPOSIT WHICH HAS NOT BEEN PROVED BY THE ASSESSEE THROUGH ANY EVIDENCE OR MATERIAL ON RECORD DURING THE ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS. TH EREFORE, THE ADDITION MADE 4 BY THE ASSESSING OFFICER IS ACCORDINGLY UPHELD. GROU ND OF APPEAL NO. 2 IS DISMISSED. 5. NOW THE ASSESSEE IS IN APPEAL. 6. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBM ISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE A. O. HAD NOT GIVEN PROPER TIME TO THE ASSESSEE THEREFORE THE ADDITIONAL EVIDENCES WERE TO BE FURNISHED BEFORE THE LD. CIT(A) UNDER RULE 46A OF THE INCOME TAX RUL ES, 1962 WHICH WERE ALTHOUGH ADMITTED BY THE LD. CIT(A) BUT THOSE WERE NOT APPRECIATED IN RIGHT PERSPECTIVE. THEREFORE, THE LD. CIT(A) WAS NOT JUST IFIED IN SUSTAINING THE ADDITION MADE BY THE A.O. 7. IN HIS RIVAL SUBMISSIONS THE LD. SR. DR STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND REITERATED THE O BSERVATIONS MADE BY THE AUTHORITIES BELOW IN THEIR RESPECTIVE ORDERS. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS NOTICED THAT THE A.O. FRAMED THE ASSESSMENT EXPARTE AND MADE THE ADDITION OF RS. 13,50,500/- WHICH WAS THE AMOUNT DEPOSITED BY THE ASSESSEE IN HIS SAV ING BANK ACCOUNT. SINCE THE ASSESSMENT ORDER WAS PASSED BY THE A.O. EXPARTE , THE ASSESSEE FURNISHED THE ADDITIONAL EVIDENCES BEFORE THE LD. CIT(A) WHO ADMITTED THE SAME. HOWEVER THE LD. CIT(A) SUSTAINED THE ADDITION BY OB SERVING THAT THE ASSESSEE HAD NOT BROUGHT ANY EVIDENCE ON RECORD TO AUTHENTIC ATE HIS CLAIM THAT THE CASH DEPOSITED IN HIS BANK ACCOUNT WAS OUT OF THE W ITHDRAWAL / ADJUSTMENT OF CASH FROM HIS FATHERS BANK ACCOUNT. ON THE CONTRAR Y THE CLAIM OF THE ASSESSEE WAS THAT THE CASH WAS DEPOSITED IN HIS BANK ACCOUNT OUT OF CASH WITHDRAWN BY HIS FATHER FROM HIS BANK ACCOUNT. IN THE PRESENT CA SE, IT IS NOT BROUGHT ON RECORD AS TO WHAT WERE THE CONTENTS OF THE BANK STATEMENT FURNISHED BY THE ASSESSE AND IT IS NOT CLEAR AS TO WHETHER THERE WERE SUFFIC IENT WITHDRAWALS TO JUSTIFY THE 5 DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. WE THE REFORE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE A.O. TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE AND CONSIDERING THE DOC UMENTS WHICH WERE FURNISHED BY THE ASSESSEE BEFORE THE LD. CIT(A) AS AN ADDITIONAL EVIDENCE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 29/06/2021 ) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 29/06/2021 (+! ,-.- 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 (+ $ BY ORDER, ; # ASSISTANT REGISTRAR