MICKEY RAJ, Jaipur V. ITO, Jaipur

ITA 466/JPR/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1998 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 17-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH JCIT DHK
• Keywords: Opportunity of being heard; Additional evidence
• Section: 144

Judgement Text

+VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 466/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 MRS. MICKEY RAJ, B-15, VINOBA BHAVE NAGAR, VAISHALI NAGAR, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 7(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AIFPR 0530 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ROHAN SOGANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA SINGH (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26/05/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 25/07/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER DATED 25/10/2013 PASSED BY THE LD CIT(A)-III, JAIPU R FOR THE A.Y. 2009- 10, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THAT LD ASSESSING OFFICER ERRED TO MAKE THE ADD ITION OF RS. 34,79,800/- ON ACCOUNT OF UNEXPLAINED BANK CREDITS AND LEARNED COMMISSIONER OF INCOME TAX (APPEALS),III, J AIPUR CONFIRMED THAT ADDITION IGNORING FACTS- CERTIFICATE ISSUED BY THE PETROL PUMP OWNER , COPY OF ACCOUNT GIVEN BY THE HI NDUSTAN PETROLEUM CO. LTD. , AFFIDAVITS, RETURN FILED WITH THE INCOME TAX DEPARTMENT AND COMMERCIAL TAXES DEPARTMENT. ITA 466/JP/2014_ MRS. MICKEY RAJ VS ITO 2 2. THAT LD. ASSESSING OFFICER ERRED TO MAKE THE ADD ITION OF RS. 8,79,367/- ON ACCOUNT OF UNEXPLAINED BANK CREDITS A ND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS),III, J AIPUR CONFIRMED THAT ADDITION IGNORING RELEVANT FACTS- CE RTIFICATE ISSUED BY THE PETROL PUMP OWNER, COPY OF ACCOUNT GI VEN BY THE HINDUSTAN PETROLEUM CO. LTD., AFFIDAVITS, RETURN FI LED WITH THE INCOME TAX DEPARTMENT AND COMMERCIAL TAXES DEPARTME NT. 2. IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED EX PARTE DUE TO NON-APPEARANCE OF THE ASSESSEE. THE ASSESSING OFFICE R HAS OBSERVED IN HIS ASSESSMENT ORDER THAT SEVERAL OPPORTUNITIES FOR COMPLIANCE OF THE NOTICES WERE GIVEN TO THE ASSESSEE, BUT SHE FAILED. THEREFORE, HE MADE ADDITION OF RS. 34,79,800/- ON ACCOUNT OF UNEXPLAIN ED CASH DEPOSITS AND RS. 8,79,367/- ON ACCOUNT UNEXPLAINED BANK CREDITS AND ADDED BACK IN THE TOTAL INCOME OF THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING O FFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A). B EFORE THE LD. CIT(A) THE ASSESSEE HAS SUBMITTED ADDITIONAL EVIDENCE, WHIC H WERE REJECTED AND THE ADDITIONS MADE BY THE ASSESSING OFFICER WAS ALSO CONFIRMED BY HIM BY HOLDING AS UNDER:- 6.3 I HAVE CAREFULLY CONSIDERED THE FINDINGS OF TH E A.O. SUBMISSIONS OF THE APPELLANT AS ALSO OTHER RELEVANT FACTS RELATED TO T HIS CASE. FIRST OF ALL THE ISSUE OF ACCEPTANCE OF ADDITIONAL EVIDENCES IS TO B E DECIDED. IT MAY BE NOTED THAT EXCEPT THE FIRST NOTICE ISSUED U/S 143(2 ) OF IT ACT DATED 01.09.2010, NO OTHER NOTICES ISSUED SUBSEQUENTLY U/ S 142(1)/143(2) AND INCLUDING SHOW CAUSE NOTICE U/S 144 OF IT ACT WERE SERVED UPON THE ITA 466/JP/2014_ MRS. MICKEY RAJ VS ITO 3 ASSESSEE. IT IS ALSO A FACT THAT THOUGH THE MISTAKE WAS ON THE PART OF THE APPELLANT AS THE CHANGE IN RESIDENTIAL ADDRESS WAS NOT COMMUNICATED HOWEVER AS NOTICES WERE NOT SERVED INCLUDING THE SH OW CAUSE NOTICE FOR MAKING SUCH ADDITIONS THEREFORE THE APPELLANT WAS P REVENTED BY SUFFICIENT CAUSE FOR PRODUCTION OF SUCH DOCUMENTS B EFORE THE A.O. AND ACCORDINGLY THE APPELLANT CASE IS COVERED UNDER SUB -CLAUSE D OF RULE 46A(1). ACCORDINGLY THE DOCUMENTS FILED BY THE APPE LLANT AS ADDITIONAL EVIDENCE ARE HEREBY ACCEPTED. ALL THE ADDITIONAL DOCUMENTS FILED BY THE APPELLAN T WERE ALSO MADE AVAILABLE TO THE A.O. AND THE A.O. WAS ALSO SUBMITT ED A REPORT ON SUCH DOCUMENTS AS DISCUSSED EARLIER. FIRST OF ALL THE OB JECTION OF THE A.O. THAT NOTICE ISSUED U/S 143(2) WAS NOT VALID IN AS MUCH A S SUCH NOTICE WAS ISSUED AFTER PROCESSING OF THE RETURN, IT MAY BE ST ATED THAT SUCH OBJECTION IS VAGUE AND UNSPECIFIC IN AS MUCH AS THE APPELLANT HAS FILED RETURN OF INCOME ON 29.12.2009 AND THE NOTICE U/S 1 43(2) COULD HAVE BEEN ISSUED BY 30.09.2010 WHEREAS THE NOTICE U/S 14 3(2) WAS ISSUED ON 01.09.2010. THEREFORE THE SAID NOTICE OF SCRUTINY A SSESSMENT WAS ISSUED IN TIME AND THERE WAS NO IRREGULARITY. AS REGARDS ADDITION OF RS. 3479800/- ON ACCOUNT OF CASH DEPOSITS IN THE JOINT ACCOUNT OF THE APPELLANT WITH SH. RAM SINGH S HEKHAWAT WITH UNION BANK OF INDIA AND SIMILAR ADDITION OF RS. 879 367/- ON ACCOUNT OF CREDITS THROUGH CLEARING IN THE SAME BANK ACCOUNT W ITH UNION BANK OF INDIA, IT MAY BE NOTED THAT THE A.O. HAS COLLECTED INFORMATION FROM THE UNION BANK OF INDIA, VAISHALI NAGAR, JAIPUR AND THE RE IS NO DISPUTE ON THE FACT THAT SUCH JOINT ACCOUNT WAS MAINTAINED AND THE FIRST ACCOUNT HOLDER/ FIRST NAME IS THE APPELLANT NAMELY MRS. MIC KEY RAJ AS ALSO THAT SUCH AMOUNT OF RS. 3479800/- WAS DEPOSITED IN CASH ON DIFFERENT DATES AND ANOTHER AMOUNT OF RS. 879367/- WAS FOUND CREDIT ED ON ACCOUNT OF ITA 466/JP/2014_ MRS. MICKEY RAJ VS ITO 4 CLEARING TRANSACTIONS. THE A.O. HAS CONFRONTED THE ASSESSEE AND ALSO ISSUED SHOW CAUSE NOTICE FOR EXPLAINING SUCH TRANSA CTIONS BUT AS SUCH NOTICES WERE NOT SERVED UPON THE APPELLANT THEREFOR E NO EXPLANATION WAS FURNISHED IN RESPECT OF SUCH CREDIT AND A.O. AC CORDINGLY TREATED SUCH AMOUNT AS UNEXPLAINED DEPOSITS/ INCOME. DURING THE APPELLATE PROCEEDINGS THE APPELLANT HAS TRIED TO EXPLAIN SUCH CREDITS/ DEPOSITS BY WAY OF FURNISHING ADDITIONAL EVIDENCES/DOCUMENTS AN D THE ESSENCE OF THE SUBMISSION OF THE APPELLANT FOR EXPLAINING SUCH AMOUNT IS THAT THE HUSBAND OF THE APPELLANT NAMELY SH. RAM SINGH SHEKH AWAT HAPPENED TO BE MANAGER INCHARGE OF M/S KAMAKHYA KRISHNA SERV ICE CENTRE, A PETROL PUMP SITUATED AT VILLAGE- RODAWAS AND THAT S UCH PETROL PUMP IS OWNED BY SH. PURUSHOTTAM AGARWAL AND THAT THE CASH OF SUCH PETROL PUMP WAS DEPOSITED IN THE SAID JOINT ACCOUNT FOR GE TTING PAY ORDERS TO BE REMITTED TO M/S H.P.C.L. LTD. FOR SUCH SUBMISSIO N THE APPELLANT HAS FILED DECLARATION DATED 07.05.2013 OF SH. PURUSHOTT AM AGARWAL OWNER OF THE PETROL PUMP, AFFIDAVIT OF THE APPELLANT DATE D 03.05.2013 ADMITTING THAT FOR THE JOINT BANK ACCOUNT SHE HAD G IVEN HER PAN AND THAT THIS ACCOUNT WAS USED FOR PETROL PUMP OPERATIO N FROM 01.04.2008 TO 31.03.2009 BY HER HUSBAND ON BEHALF OF SH. PURUS HOTTAM AGARWAL. A DECLARATION DATED 07.05.2013 SIGNED BY SH. RAM SING H IS ALSO FILED ADMITTING THE SAME FACTS FOR USING THE JOINT BANK A CCOUNT FOR PETROL PUMP PURPOSES. XEROX COPIES OF PRINTOUTS STATED TO BE OBTAINED FROM M/S H.P.C. L. HAS ALSO BEEN FILED FOR CO-RELATING T HE CASH DEPOSITS WITH ISSUE OF PAY ORDERS. ON CAREFUL EXAMINATION OF ALL THESE DOCUMENTS AND SUBMISSIONS IT IS GATHERED THAT PRIMA FACIE SUCH EX PLANATION APPEARS TO BE SIMPLY AN AFTERTHOUGHT TO EXPLAIN SUCH UNACCOUNT ED CASH DEPOSITS. FIRST OF ALL IT MAY BE NOTED THAT THE PETROL PUMP I S OWNED BY ONE SH. PURUSHOTTAM AGARWAL AND THIS PERSON IS STATED TO HA VE GIVEN ALL RIGHTS FOR COLLECTION OF CASH OF THE PETROL PUMP BY ONE EM PLOYEE WHO ITA 466/JP/2014_ MRS. MICKEY RAJ VS ITO 5 HAPPENED TO BE MANAGER AND TO DEPOSIT SUCH AMOUNT I N THE JOINT ACCOUNT OF THE APPELLANT AND HER HUSBAND. IT IS NOT KNOWN AS TO WHY THE OWNER HAS NOT OPERATED HIS OWN BANK ACCOUNT FOR SUC H PURPOSES. MOREOVER THE JOINT BANK ACCOUNT IS STATED TO BE USE D FROM 01.04.2008 TO 31.03.2009 FOR THE BUSINESS OF THE PETROL PUMP B UT BEFORE USING THIS ACCOUNT BY THE MANAGER, THE OWNER OF THE PETROL PUM P HAS NOT EXECUTED ANY DOCUMENTS IN AS MUCH AS ALL THE DOCUME NTS OF DECLARATION HAVING USED THE JOINT BANK ACCOUNT FOR THE OPERATIO N OF PETROL PUMP ARE OF SUBSEQUENT DATES I.E. SUBSEQUENT TO ASSESSMENT P ROCEEDINGS. THE IMPORTANT POINT IS TO BE NOTED THAT THE OWNER SH. P URUSHOTTAM AGARWAL AND NO PERSON IN NORMAL CIRCUMSTANCES WILL DELEGATE ALL SUCH CASH TRANSACTIONS WITHOUT EXECUTING VALID DOCUMENT AND I N THIS BACKGROUND IF GENUINELY THE SALE PROCEEDS OF THE PETROL PUMP WERE TO BE UTILIZED BY WAY OF DEPOSITING OF SUCH AMOUNT IN THE JOINT BANK ACCOUNT SUCH DOCUMENTATION WOULD HAVE BEEN WELL AND ADVANCE BEFO RE COMMENCEMENT OF DEPOSITS AND NOT AFTER COMMENCEMENT OF THE ASSESSMENT PROCEEDINGS. IT IS WELL SETTLED PRINCIPA L OF LAW THAT IN THE INCOME TAX PROCEEDINGS, THE FACTS OF LIFE, HUMAN PR OBABILITIES AND ECONOMIC REALITIES CANNOT BE IGNORED. IT IS NOT ALW AYS NECESSARY THAT IN INCOME TAX PROCEEDINGS THE FACTS SHOULD BE PROVED B Y STRICT LAW OF EVIDENCE. THE RULES OF EVIDENCE DO NOT GOVERN THE I NCOME TAX PROCEEDINGS AS THE PROCEEDINGS UNDER THE INCOME TAX ARE NOT JUDICIAL PROCEEDINGS AND SUCH PROCEEDINGS ARE QUASI JUDICIAL PROCEEDINGS. THEREFORE THE AO IS NOT FETTERED OR BOUND BY TECHNI CAL RULES ABOUT EVIDENCE. FOR THE ABOVE MENTIONED PROPORTION OF LAW AND DISCUSSION, RELIANCE IS PLACED ON THE FOLLOWING CASE LAWS. 1. CIT VS. DURGAPRASAD MORE 82 ITR 540 (SUPREME CO URT) 2. SUMATIDAYAL VS. CIT 214 ITR 801(SUPREME COURT) 3. JUGGILAL KAMLAPAT VS. CIT 73 ITR 702(SUPREME CO URT) ITA 466/JP/2014_ MRS. MICKEY RAJ VS ITO 6 IT MAY ALSO BE NOTED THAT THOUGH IT IS CLAIMED THA T THE CASH OWNED BY M/S KAMAKHYA KRISHNA SERVICE CENTRE WAS DEPOSITED I N THE JOINT BANK ACCOUNTS ON DIFFERENT DATES BUT THE APPELLANT NEVER PRODUCED THE BOOKS OF ACCOUNTS OF SUCH PETROL PUMP WHICH MAY INDICATE THAT ON THE DATE OF DEPOSITS IN THE BANK ACCOUNT EVEN M/S KAMAKHYA KRIS HNA SERVICE CENTRE WAS HAVING GENUINE CASH AVAILABILITY TO SUCH AN EXTENT. IT MAY BE NOTED THAT THE AMOUNT IS FOUND CREDITED IN THE BANK ACCOUNT OF THE APPELLANT AND THE ONUS IS ON THE APPELLANT TO PROVE THE GENUINENESS OF SUCH CREDITS AND THE GENUINENESS OF SUCH CREDITS CA NNOT SAID TO BE PROVED SIMPLY BY STATING THAT THE AMOUNT WAS RECEIV ED FROM M/S KAMAKHYA KRISHNA SERVICE CENTRE. THEREFORE, PRIMA F ACIE THE APPELLANT HAS FAILED TO PROPERLY EXPLAIN THE SOURCE OF CASH D EPOSITS AMOUNTING TO RS. 3479800/-. AS REGARDS ADDITION OF RS. 879367/- THE APPELLANT HAS SIMPLY STATED THAT ALL THE CREDIT TRANSACTIONS WERE RELATED TO THE PETROL BUSINESS AND EVEN BASIC INFORMATION AS TO FROM WHOM SUCH CLEARING TRANSACTIONS WERE EFFECTED IS NOT FURNISHED. IN THI S BACKGROUND THE ADDITION MADE BY THE A.O. AMOUNTING TO RS. 3479800/ - AND RS. 879367/- ARE CONFIRMED. 4. BEFORE THE TRIBUNAL, THE LD. AR OF THE ASSESSEE H AS SUBMITTED THAT THE ASSESSING OFFICER HAS DECIDED THE APPEAL EX PAR TE WITHOUT GIVING PROPER AND EFFECTIVE OPPORTUNITY OF HEARING. THE LD. CIT(A) HAS DECIDED THE APPEAL WITHOUT GOING INTO THE MERIT OF EVIDENCES , THEREFORE, HE PRAYED TO RESTORE THE MATTER BACK TO THE FILE OF TH E ASSESSING OFFICER. THE AR PLEADED THAT THE ASSESSING OFFICER MAY BE DIRECT ED TO GIVE PROPER AND EFFECTIVE OPPORTUNITY OF BEING HEARD. ITA 466/JP/2014_ MRS. MICKEY RAJ VS ITO 7 5. ON THE CONTRARY, THE LD. SR. DR HAS VEHEMENTLY S UPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTE D THAT THE ASSESSING OFFICER HAD GIVEN SEVERAL OPPORTUNITIES TO THE ASSE SSEE BUT THE ASSESSEE DOES NOT WANT TO PURSUE HER MATTER. THE LD. CIT(A) HA S RIGHTLY DECIDED THE APPEAL, THEREFORE HE PRAYED TO SUSTAIN THE ORDE R OF THE LD. CIT(A). 6. I HAVE HEARD BOTH THE PARTIES AND HAVE ALSO GON E THROUGH THE RECORDS. BEFORE THE LD. CIT(A), THE ASSESSEE FILED A DDITIONAL EVIDENCES, WHICH HAS BEEN REJECTED BY HIM, THEREFORE, FOR THE I NTEREST OF JUSTICE AND EQUITY, I ADMIT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. FROM PERUSAL OF THE RECORDS, IT ALSO TRANSPIRES THAT THE ASSESSING OFFICER GAVE OPPORTUNITY TO THE ASSESSEE. HOWEVER, THERE IS NO EV IDENCE ON RECORD TO JUSTIFY OR CONFIRM THE FACT THAT ASSESSEE WAS PROVID ED ADEQUATE AND EFFECTIVE HEARING WITH REGARD TO THE DIRECTION SOUGH T AND PROVIDED. THE FACTS OF THE CASE SHOWS THAT THE ASSESSEE HAS NOT BE EN PROVIDED AN EFFECTIVE OPPORTUNITY OF BEING HEARD WITH REGARD TO DIRECTIONS ISSUED BY THE ASSESSING OFFICER, WHICH IS A MANDATORY REQUIREM ENT OF LAW. THEREFORE, BY KEEPING IN VIEW OF ALL THESE FACTS, I R ESTORE ALL THE ISSUES TO THE FILE OF THE ASSESSING OFFICER TO DECIDE DE NOVO AFTER GIVING ADEQUATE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE ASSESSING OFF ICER IN DECIDING THE ITA 466/JP/2014_ MRS. MICKEY RAJ VS ITO 8 CASE IN ACCORDANCE WITH LAW. IF THE ASSESSEE FAILS IN COOPERATING THE ASSESSING OFFICER THEN NO FURTHER OPPORTUNITY WOULD BE GIVEN TO HER. ACCORDINGLY, THIS APPEAL IS RESTORE BACK TO THE FIL E OF THE ASSESSING OFFICER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 25/07/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 TH JULY, 2017. *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- MRS. MICKEY RAJ, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-7(1), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 466/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR