The Dy. CIT, Vijayawada V. Sri Vijay Kumar Poddar., Vijayawada

ITA 473/VIZ/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6765 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 25-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y SESHA SRINIVAS
• Assessee Lawyers: P SRINIVASA PRASAD
• Keywords: Gift
• Section: 142(1); 131; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM SMC BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, HON'BLE JUDICIAL MEMBER ITA NO. 473 / VIZ /201 6 (ASST. YEAR : 20 08 - 09 ) DCIT , CIRCLE - 2(1), VIJAYAWADA. VS. VIJAY KUMAR PODDAR, PROP. MARUTHI ALUMINIUM, D.NO. 27 - 37 - 139/C, M.G. ROAD, VIJAYAWADA. PAN NO. AKLPP 8772 D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P. SRINIVASA PRASAD FC A. DEPARTMENT BY : SHRI Y. SESHA SRINIVAS - SR. DR DATE OF HEARING : 18 / 0 8 /201 7 . DATE OF PRONOUNCEMENT : 23 / 0 8 /201 7 . O R D E R THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), VIJAYAWADA , DATED 23/08/2016 FOR THE ASSESSMENT YEAR 2008 - 09 . 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IS IN THE BUSINESS OF ALUMINIUM PRODUCTS IN THE NAME AND STYLE OF M/S. MARUTHI ALUMINIUM AT VIJAYAWADA , HAD FILED HIS RETURN OF INCOME BY DECLARING TOTAL INCOME OF 1 , 94,580/ - AND AGRICULTURAL INCOME OF 80,000/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY . NOTICES ISSUED UNDER SECTION 142(1) & 143(2) WERE SERVED UPON THE ASSESSEE BY AFFIXTURES. THE QUESTIONNAIRE WAS ALSO ISSUED TO THE ASSESSEE BY POST VIDE OFFICE LETTER 2 ITA NO. 473/VIZ/2016 (VIJAY KUMAR PODDAR) DATED 18/05/2010, WHICH WAS RETU RNED UN - SERVED. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS OBSERVED THAT SEVERAL OPPORTUNITIES WERE GRANTED TO THE ASSESSEE FO R PRODUCING BOOKS OF ACCOUNT, BILLS , VOUCHERS, BANK STATEMENTS AND OTHER RELEVANT DOCUMENTS, BUT ASSESSEE REMAINED UNRESPONSIVE AND NEVER MADE ANY COMPLIANCE. THE ASSESSING OFFICER FURTHER OBSERVED THAT ASSESSEE INTENTIONALLY AVOIDED APPEARANCE AND PRODUC TION OF BOOKS OF ACCOUNT, BILLS , VOUCHERS, BANK STATEMENTS AND OTHER RELEVANT DOCUMENTS WHICH IS EVIDENT BY A FACT THAT WHEN EARLIER NOTICES ISSUED UNDER SECTION 142(1) & 143(2) WERE RETURNED UN - SERVED , LATER ON , W ERE SERVED BY AFFIXED REQUIRIN G COMPLIANCE ON 15/10/2009 & 22/10/2009 . THE ASSESSEE RESPONDED ONLY WHEN SHOW - CAUSE NOTICE IS ISSUED ON 23/10/2009 BY S TATING THAT HE HAS NOT RECEIVED ANY PREVIOUS NOTICE. THE ASSESSING OFFICER HAS FURTHER OBSERVED THAT THE ASSESSEE NEVER ATTENDED NOR REPRESENTED THROUGH HIS COUNSEL AND NO BOOKS OF ACCOUNT, BILLS , VOUCHERS, BANK STATEMENTS AND OTHER RELEVANT DOCUMENTS WERE VERIFIED . IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS FURTHER OBSERVED THAT LETTER WAS ISSUED TO THE ASSESSEE FOR INTIMATIN G PROPOSED ADDITION TO BE MADE TO THE TOTAL INCOME OF THE ASSESSEE BY REGISTERED POST VIDE OFFICE LETTER NO S . 1032 DATED 29/09/2010 & 1179 DATED 18/11/2010 ON BOTH THE ADDRESSES OF THE ASSESSEE SEEKING COMPLIANCE ON OR BEFORE 29/11/2010 . IN RESPONSE TO FIRST LETTER , THERE WAS NO COMPLIANCE , BUT ON SECOND LETTER BEARING NO. 1179 DATED 18/11/2010 , THE ASSESSEE PREFERRED SENDING A TELEGRAM 3 ITA NO. 473/VIZ/2016 (VIJAY KUMAR PODDAR) WHICH WAS BOOKED ON 27/11/2010 AND RECEIVED IN TH IS OFFICE ON 30/11/2 010 SEEK ING ONE MONTH S TIME ADJOURNMENT . THE ASSESSING OFFICER HAS GIVING A FINAL OPPORTUNITY BY FIXING THE CASE ON 14/12/2010. IN THE MEANWHILE, SUMMON S ISSUED UNDER SECTION 13 1 VIDE LETTER N O . 1250 DATED 02/12/2010 WAS ALSO SERVED ON THE ASSESSEE VIDE DDIT (INVESTIGATION) , VIJAYAWADA SEEKING HIS PERSONAL APPEARANCE AND TO FILE RELEVANT JOURNAL, LEDGER, CASH/BANK BO O KS ETC. ON OR BEFORE 14/12/2010 . AGAIN IN RESPONSE TO THE SUMMONS, ASSESSEE CHOSE TO SEND A TELEGRAM SEEKING ONE MONTHS TIME FOR ADJOURNMENT . THE ASSESSING OFFICER HAS OBSERVED THAT TILL TODAY I.E. ON 28/12/2010, THE ASSESSEE NEITHER COMPLIED WITH NOTICES NOR APPEARED BEFORE HIM AS PER THE NOTICE ISSUED UNDER SECTION 131. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE , THE ASSESSING OFFICER HAS COM P LETED THE ASSESSMENT UNDER SECTION 144 BY M A KING THE FOLLOWING ADDITIONS: - 1 ADDITION TOWARDS DIFFERENCE FOUND IN PURCHASE FIGURES 26,999/ - 2 ADDITION TOWARDS DIFFERENCE FOUND IN SALE FIGURES 1,10,321/ - 3 ADDITION TOWARDS DIFFERENCE FOUND IN CLOSING BALANCE IN BANK ACCOUNT 1,94,508/ - 4 ADDITION ON ACCOUNT OF INCOME TAX DEBITED TO THE PROFIT & LOSS ACCOUNT 7,830/ - 5 ADDITION ON ACCOUNT OF PAYMENT OF PPF FUND RELATING TO HUF SHOWN IN INDIVIDUAL HANDS 20,000/ - 6 ADDITION TOWARDS UNVERIFIABLE UNSECURED LOAN 19,08,821/ - 7 ADDITION ON ACCOUNT OF AGRICULTURAL INCOME 80,000/ - 8 ADDITION ON ACCOUNT OF GIFT RECEIVED. 1,00,000/ - 9 ADDITION TOWARDS DISALLOWANCE OF EXPENSES DEBITED TO PROFIT & LOSS ACCOUNT 3,24,463/ - 10 ADDITION ON ACCOUNT OF PLEDGED SECURITY NOT SHOWN IN THE BALANCE SHEET 15,27,614/ - 11 ADDITION ON ACCOUNT OF U N PAID VAT 1,20,676/ - 4 ITA NO. 473/VIZ/2016 (VIJAY KUMAR PODDAR) 3. ON APPEAL BEFORE THE LD. CIT(A) , THE ASSESSEE HAS FILED CERTAIN DETAILS. THE LD. CIT(A) BY CONSIDERING THOSE DETAILS, DELETED THE ADDITIONS MENTIONED IN THE ABOVE TABLE AT COLUMN NO S . (1), (2), (5), (6), (10) & (11) AND PARTIAL RELIEF HAS BEEN GRANTED AT COLUMN NOS. (3) & (9) . 4 . ON BEING AGGRIEVED, THE REVENUE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. 5 . LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT ASSESSING OFFICER HAS GIVEN AS MANY AS OPPORTUNITIES TO THE ASSESSEE, BUT HE NEITHER APPEARED NOR FILED ANY DETAILS BEFORE THE ASSESSING OFFICER. THE DETAILS WERE FILED ONLY BEFORE THE LD. CIT(A), WHO WITHOUT CA L LING THE REMAND REPORT, SIMPLY DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER. IT IS CLEARLY VIOLATION OF RULE 46A OF THE INCOME TAX RULES, 1962 . 6 . ON THE OTHER HAND , L EARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED TH A T LD. CIT(A) BY CONSIDERING THE VARIOUS DETA I LS FILED BY THE ASSESSEE , RELIE F IS GRANTED. THEREFORE, HE PRAYED THAT ORDER PASSED BY THE LD. CIT(A) MAY B E UPHELD. 7 . I HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 8 . IN THE ASSESSMENT ORDER , THE ASSESSING OFFICER HAS CLEARLY MENTIONED THAT HE HAS GIVEN VARIOUS OPPORTUNITIES TO THE ASSESSEE . THE ASSESSEE HAS NEVER RES P ONDED TO , MANY OPPORTUNITIES . LASTLY, HE 5 ITA NO. 473/VIZ/2016 (VIJAY KUMAR PODDAR) RESPONDED AND SOUGHT ONE MONTH S TIME . HOWEVER , HE HAS NOT APPEARED BEFORE THE ASSESSING OFFICER NOR FILED ANY DETAILS . UNDER THOSE COMPELLING CIRCUMSTANCES, THE ASSESSING OFFICER HAS COMP L E TED THE ASSESSMENT UNDER SECTION 144 BY MAKING VARIOUS ADDITIONS. THE ASSESSEE HAS FILED THE DETAILS ONLY BEFORE THE LD. CIT(A), WHO SIMPLY WITHOUT CALLING REMAND REPORT , GRANTED RELIEF TO THE ASSESSEE. I FIND THAT THE DETAILS FIELD BY THE ASS ESSEE NEEDS VERIFICATION AND THE LD.CIT(A) WITHOUT VERIFYING THE SAME , SIMPLE ACCEPTED AND RELIEF IS GRANTED . IN MY OPINION , IT IS CLEAR CUT CASE OF VIOLATION OF RULE 46A . T HEREFORE, I SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE S DENOVO IN ACCORDANCE WITH LAW. ACCORDINGLY, APPEAL FILED BY THE DEPARTMENT IS ALLOWED FOR STATIS T ICAL PURPOSE. 9 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORD ER PRONOUNCED IN OPEN COURT ON THIS 2 3 R D DAY OF AUGUST , 201 7 . S D / - ( V. DURGA RAO ) JUDICIAL MEMBER DATED : 2 3 R D AUGUST , 201 7 . VR/ - COPY TO: 1. THE ASSESSEE VIJAY KUMAR PODDAR, PROP. MARUTHI ALUMINIUM, D.NO. 27 - 37 - 139/C, M.G. ROAD, VIJAYAWADA. 2. THE REVENUE - DCIT, CIRCLE - 2(1), VIJAYAWADA. 3. THE PCIT, VIJAYAWADA. 4. THE CIT(A) , VIJAYAWADA. 5. THE D.R. , VISAKHAPATNAM . 6. GUARD FILE. BY ORDER