Dr. Raj Kumar Gupta, Lucknow V. ACIT, Lucknow

ITA 478/LKW/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54814 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-11-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 08-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Keywords: Reopening of assessment; Unexplained cash credit; Opportunity of being heard; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI B. R. JAIN , ACCOUNTANT MEMBER ITA NO S . 478 & 479/LKW/2010 ASSESSMENT YEAR S : 2004 - 05 AND 2005 - 06 DR. RAJ KUMAR GUPTA 538KA/31K/I I, MAUSAMBAGH SITAPUR ROAD, LUCKNOW V. ACIT RANGE VI LUCKNOW PAN: AEUPG1408C (APPELLANT) (RESPONDENT) ITA NO S . 480 & 481/LKW/2010 ASSESSMENT YEAR S : 2004 - 05 AND 2005 - 06 DR. SUMAN GUPTA 538KA/31K/II, MAUSAMBAGH SITAPUR ROAD, LUCKNOW V. ACIT RANGE VI LUCKNOW PAN: AEUPG1415P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. P. K. BAJAJ, D.R. DATE OF HEARING: 03.11.2011 DATE OF PRONOUNCEMENT: 18.11.2011 O R D E R PER S UNIL KUMAR YADAV : THESE APPEA LS ARE PREFERRED BY T HE ASSESSEES AGAINST RESPECTIVE ORDERS OF THE LD. CIT(A) ON VARIOUS CO MMON GROUNDS. THE MAIN GROUNDS INVOLVED IN THESE APPEALS ARE WITH REGARD TO THE REOPENING OF ASSESSMENTS AND ADDITIONS OF UNEXPLAINED CREDITS. : - 2 - : 2. DURING THE COURSE OF HEARING OF THE APPEALS, IT WAS BROUGHT TO OUR NOTICE THAT THE ASSESSEES IN THESE APPEALS ARE HUSBAND AND WIFE AND EX - PARTE ASSESSMENTS UNDER SECTION 144 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER IN SHORT THE ACT) WERE FRAMED IN THEIR RESPECTIVE HANDS FOR ASSESSMENT YEARS 2004 - 05 AND 2005 - 06. THE REASONS FOR NON - APPEARANCE AND NON - PROSECUTION OF THE CLAIM BEFORE THE ASSESSING OFFICER WAS THAT DR RAJ KUMAR GUPTA WAS A JUNIOR RESIDENT OF KGMU, LUCKNOW AND WAS ONE OF THE ACCUSED IN AN INCIDENT OF ARSON AND LO OT IN THE UNIVERSITY CAMPUS. AT THE TIME OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ENTANGLED IN CRIMINAL LITIGATIONS AND FOR THIS REASON HE COULD NOT PRESENT HIS CASE BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAS FRAMED EX - PARTE ASSESSMENT. 3. BEFORE THE LD. CIT(A), BOTH THE ASSESSEES HAVE FILED ALL THE RELEVANT EVIDENCES WITH REGARD TO THE ADDITIONS MADE BY THE ASSESSING OFFICER. THESE EVIDENCES WERE CONFRONTED TO THE ASSESSING OFFICER BY THE LD. CIT(A) AND CALLED HIS REMAND REPORT, BUT AFT ER RECEIVING THE REMAND REPORT, THE LD. CIT(A) DID NOT EXAMINE THE ADDITIONAL EVIDENCES & THE REMAND REPORT AND HAS OUT RIGHTLY REJECTED THE ADDITIONAL EVIDENCES FILED BEFORE HIM BY THE ASSESSEE AND CONFIRMED THE ADDITIONS. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) SHOULD HAVE TAKEN NOTE OF THE CIRCUMSTANCES UNDER WHICH THE ASSESSMENT PROCEEDINGS WERE COMPLETED AND SHOULD HAVE ADMITTED THE ADDITIONAL EVIDENCES AFTER CALLING REMAND REPORT FROM THE ASSESSING OFFICER THEREON. 5. THE LD. D .R., ON THE OTHER HAND, HAS SUPPORTED THE STAND OF THE LD. CIT(A). 6. HAVING CAREFULLY EXAMINED THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT UNDISPUTEDLY THE ASSESSEE WAS ENTANGLED IN CRIMINAL LITIGATIONS AT THE TIME WHEN THE ASSESSMENT PROCEEDINGS WERE ON. THE ASSESSEES HAVE FILED EVIDENCES ON ALL THE ADDITIONS MADE BY THE ASSESSING OFFICER. THE LD. : - 3 - : CIT(A) ADMITTEDLY CALLED REMAND REPORT FROM THE ASSESSING OFFICER, BUT DID NOT ACT ON IT AND HE HAS RATHER REFUSED TO ADMIT THE ADDITIONAL EVIDENCES. WE ARE UNABLE TO UNDERSTAND THAT WHEN THE LD. CIT(A) HAS DECIDED NOT TO ADMIT THE ADDITIONAL EVIDENCES , FOR WHAT HE HAS CALLED FOR THE REMAND REPORT THEREON. IN ANY CASE, WE DO NOT APPRECIATE THE ACT OF THE LD. CIT(A). WHILE ENTERTAINING THE ISSUE OF ADMISSION OF ADDITIONAL EVIDENCES, HE SHOULD HAVE EXAMINED THE CIRCUMSTANCES UNDER WHICH THE ASSESSEES COULD NOT PROSECUTE THEIR CASES BEFORE THE ASSESSING OFFICER. IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT LET THE ADDITIONAL EVIDENCES BE EXAMINED BY THE ASSESSING OFFICER AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO ADJUDICATE UPON THE ISSUES AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18.11.2011. SD/ - SD/ - [B. R. JAIN ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18.11.2011 JJ: 1411 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR