Naranbhai Rambhai Zala, Rajkot V. Income Tax Officer, Ward-1(2), Junagadh

ITA 477/RJT/2017

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7296 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 28-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 144; 44AD

Judgement Text

आयकरअपील यअ धकरण, राजकोट यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER And SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER आयकरअपीलसं./ITA No. 477/Rjt/2017 नधा रणवष /Asstt. Year:2011-12 Naranbhai Rambhai Zala, C/o D.R. Adhia, “OM Shri Padmalaya”, Beside Trikamraiji Haweli, Opp. Hotel Imperial Palace, 16 Jagnath Plot, Dr. Yagnik Road, Rajkot PAN: ABAPZ9606J Vs. ITO Ward-1(2), Junagadh (Applicant) (Respondent) Assessee by : Written Submission Revenue by : Shri B. D. Gupta, Sr. DR स ु नवाईक तार ख/Date of Hearing : 06/07/2022 घोषणाक तार ख/Date of Pronouncement: 14/09/2022 आदेश/O R D E R PER BENCH: The captioned appeal has been filed at the instance of the assessee against the order of the Ld. Commissioner of Income Tax-(Appeals)-3, (in short the Ld. CIT(A)), Rajkot dated 16/11/2017arising in the matter of assessment order passed under Section 144of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2011-12. 2. The assessee has raised the revised grounds of appeal: “1. The Ld. CIT(A) has erred in law as well as on facts in confirming an assessment order U/s. 144 of the act. The order deserves annulment. ITA No.477/Rjt/2017 A.Y. 2011-12 2 2. The Ld. CIT(A) has erred in law as well as on facts considering that the Ld. A.O. has erred in not providing reasonable opportunity to the appellant. The order deserves annulment. 3. The Ld. CIT(A) has erred in law as well as on facts in confirming order U/s. 144 passed without properly service of the notice on the appellant. The proceedings being bad in law deserve annulment. 4. The Ld. CIT(A) has erred in law as well as on facts in not confirming providing the material available with him and utilized against the assessee. The assessment thus made is in violation of principles of natural justice and deserves annulment following the guidelines issued by the Hon. Supreme Court in 249 ITR 216 (SC). 5. The Ld. CIT(A) erred in not considering that the Ld. A.O. has erred in not giving any notice against propose determination of total income as made by him and thereby violated the principals of natural justice. 6. The Ld. CIT(A) erred in not considering that the Ld. A.O. has erred in not giving any notice against propose determination of total income as made by him and thereby gave no opportunity to the assessee for invocation a provisions of section 144A and deprived the assessee to have the benefit of valuable guidance of Joint CIT Sir, though statutorily provided. 7. The assessment order passed is bad in law deserves annulment. 8. The Ld. C1T(A) has erred in law as well as on facts in confirming addition of Rs. 9,73, 562/- . The same needs deletion. 9. The Ld. CIT(A) has erred in law as well as on facts in confirming addition Rs. 9,73,562/- based on irrelevant material. The same needs deletion. 10. The Ld. CIT(A) has erred in law as well as on facts in not considering that the expenses, deductions and exemptions available to the appellant under the various provisions of the Act has not been granted by the Ld. A.O. as well as himself also. 11. Without prejudice, the Ld. CIT(A) has erred in law as well as on facts in not applying guidelines available U/s. 44AD. The taxability of gross income in full is neither legal nor statutory nor logical. 12. Without prejudice, the income determined needs suitable reduction. 13. Without prejudice the Ld. CIT(A) erred confirming disallowance of expenditure at 100%. The same needs suitable reduction. 14. Without prejudice the Ld. CIT(A) erred in not considering the identical cases to compare his own action. The assessment needs annulment. 15. The appellant craves leave to add/alter/amend and/or substitute any or all grounds of appeal before the actual hearing takes place.” 3. The only interconnected issue raised by the assessee is that the Ld. CIT(A) erred in confirming the addition made by the AO for Rs. 9,73,562/- representing the expenditure incurred under the provision of Section 57 of the Act. 4. The facts in brief are that the assessee in the present case is an individual and filed his return of income declaring an income of Rs. ITA No.477/Rjt/2017 A.Y. 2011-12 3 1,59,953/- under the head other sources. The assessee calculated income from other sources in the manner as detailed below: Gross Income 11,33,515/- Lease expenditure under Section 57 9,73,562/- Balance Income 1,59,953/- 4.1 However, the assessee during the assessment proceedings failed to furnish the details of the expenses for Rs. 9,73,562/- claimed under Section 57 of the Act. Therefore, the AO disallowed the same and added to the total income of the assessee. 5. Aggrieved assessee carried the matter before the Ld. CIT(A) who confirmed the order of the AO by observing as under: “5.1 There cannot be any dispute that if any assessee has claimed deduction of any expenditure onus is squarely upon him to provide the details along with evidences in respect of such expenses. In present case no details were provided nor any evidences were submitted before the AO justifying claim of the appellant towards such expenses. Even before me no such details have been provided nor any evidence has been submitted. The only effective submission made before me is that entire income receipt cannot be taxed and deduction to the reasonable expenditure is to be allowed. It is apparent that assessee has preferred not to submit any details regarding such expenditure and is hoping for the best reasonable estimate of income which the assessing officer or the appellate authority or CIT(Appeals) can grant to him. Such course of action is very unfortunate. In present case the income is arising from other sources and not from the business activities. The indulgence in a systematic business activities will definitely lead to incurrence of certain expenditure and in absence of exact quantification of such expenses or reasonable estimates should be made of such expenditure and only the expected reasonable profit should be taxed out of the said business transaction. 5.2 However, this proposition is not correct in the present case. Here the income receipt has arisen to the assessee not due to systematic and continuous business adventures. The appellant has received income from other sources, meaning by the receipts are not likely to be accompanied with significant expenses. By their nature itself receipts falling under income from other sources did not require much expenditure barring the exception of interest expenditure, which is not there in the present case. The case laws referred by the appellant are not going to help him as there is no evidence of any systematic business activities in the present case. Alternate claim of appellant of estimating income u/s 44AD ITA No.477/Rjt/2017 A.Y. 2011-12 4 cannot be granted in present situation when there is no evidence of any business activities being undertaken by the appellant. The appellant has not revealed the real nature of the income received on the basis of which any estimate of possible expenditure can be made. In such circumstances I do not find any fault in the AO's action of rejecting the appellants claim of expenditure of Rs. 9,73,562/- under the head income from other sources.” 6. Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us. 7. The Ld. AR before us filed a written submission running into 5 pages wherein it was contended that the gross amount cannot be made subject to tax without considering the corresponding expenses. 8. On the contrary, the Ld. DR vehemently supported the order of the authorities below. 9. We have heard the rival contentions of both the parties and perused the materials available on record. In the case on hand, the assessee has shown gross income from other sources amounting to Rs.11,33,515/- against which a deduction of Rs.9,73,562/- was claimed under Section 57 of the Act. But both the authorities below have disallowed the same i.e. deduction/expenses of Rs.9,73,562/- in the absence of necessary documentary evidence. Even at the time of hearing before us, the Ld. AR in the written submission has submitted that the gross amount of income cannot be taxed without allowing the corresponding expenses which were claimed in the return of income. 10. However, the onus lies upon the assessee to furnish the necessary documentary evidences in support of the claim made in the income tax return. If the assessee fails to discharge the onus, there is no remedy available to the revenue to disallow the claim of the assessee. Nevertheless, in the interest of justice and fair play we are inclined to give one more ITA No.477/Rjt/2017 A.Y. 2011-12 5 opportunity to the assessee to produce the necessary documentary evidence in support of his contention before the AO. Hence, the ground of appeal raised by the assessee is allowed for the statistical purposes. 11. In the result, the appeal filed by the assessee is allowed for the statistical purposes. Order pronounced in the Court on 14/09/2022 at Ahmedabad. Sd/- Sd/- (SIDDHARTHA NAUTIYAL) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 14/09/2022 Tanmay, Sr. PS TRUE COPY आदेशक त ल प े षत/Copy of the Order forwarded to : आदेशान ु सार /BY ORDER, उप/सहायकपंजीकार (Dy./Asstt.Registrar) आयकरअपील यअ!धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation : 12/09/2022 2. Date on which the typed draft is placed before the Dictating Member 13/09/2022 3. Date on which the approved draft comes to the Sr.P.S./P.S. - /09/2022 4. Date on which the fair order is placed before the Dictating Member for Pronouncement /09/2022 5. Date on which the file goes to the Bench Clerk: 14/09/2022 6. Date on which the file goes to the Head Clerk.................................. 7. The date on which the file goes to the Assistant Registrar for signature on the order.......................... Date of Despatch of the Order.................. 1. अपीलाथ / The Appellant 2. !यथ / The Respondent. 3. संबं धतआयकरआय ु #त/ Concerned CIT 4. आयकरआय ु #त(अपील) / The CIT(A) 5. $वभागीय 'त'न ध, आयकरअपील यअ धकरण/ DR, ITAT, 6. गाड)फाईल / Guard file.