RAMESHWAR LAL CHOUDHARY, Jaipur V. ITO, Jaipur

ITA 486/JPR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5560 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 15-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDER SINGH JCIT DR DHK
• Assessee Lawyers: SHARVAN KUMAR GUPTA
• Section: 143(3); 68; 148

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 VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 485/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2004-05 SHRI SAJJAN KUMAR SHARMA (CHOUDHARY) S/O SHRI CHATRU RAM CHOUDHARY P/OVIKRAM STONE CRUSHER, KALWAR, JAIPUR CUKE VS. THE ITO WARD- 7 (2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AJYPS 6677E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 486/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2004-05 SHRI RAMESHWAR LAL CHOUDHARY S/O SHRI CHATRU RAM CHOUDHARY P/OVIKRAM STONE CRUSHER, KALWAR, JAIPUR CUKE VS. THE ITO WARD- 7 (3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEDPC 1066 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SHARVAN KUMAR GUPTA ADV JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJENDER SINGH, JCIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/12/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28 /01/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM BOTH THESE APPEALS HAVE BEEN FILED BY ABOVE ASSESSE ES AGAINST SEPARATE ORDERS OF THE LD. CIT(A)-3, JAIPUR DATED 22-04-2015 FOR THE ASSESSMENT YEAR 2004-05. ITA NO. 485/JP/2015 SHRI SAJJAN KUMAR SHARMA (CHOUDHARY) VS. ITO WARD- 7(2), JAIPUR . 2 2.0 IN APPEAL IN ITA NO. 486/JP/2015 ASSESSEE I.E. SHRI RAMESHWAR LAL CHOUDHARY IS AGGRIEVED THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN:- (I) UPHOLDING SECTION 147/148 PROCEEDINGS. (II) CONFIRMING THE ADDITION OF RS. 4.35 LACS DEPO SITED BY THE ASSESSEE IN BANK ACCOUNT / PARTNERSHIP FIRM. (III) ALLOWING REBATE U/S 88 OF THE ACT @ 15% AS AG AINST 20% CLAIMED BY THE ASSESSEE. 2.1 IN ITA NO 485/JP/2015, ASSESSE SHRI SAJJAN KU MAR IS AGGRIEVED THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN:- (I) UPHOLDING SECTION 147/148 PROCEEDINGS. (II) CONFIRMING THE ADDITION OF RS. 3.33 LACS DEPO SITED BY THE ASSESSEE IN BANK ACCOUNT / PARTNERSHIP FIRM. (III) DISALLOWING INTEREST AMOUNTING TO RS. 5,000/ - 2.2 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEES ARE REGULARLY ASSESSED, PARTNERS IN TWO FIRMS AND EARN INCOME FROM OTHER SO URCES AND AGRICULTURE. AS PARTNERS BOTH ASSESSEES DEPOSITED ABOVE AMOUNTS OF CAPITAL AS AGITATED IN THE GROUNDS IN THE FIRM OF M/S. BMD STO NE CRUSHER, WHICH WAS EXAMINED IN THE HANDS OF THE FIRM. SINCE THE AD DITION U/S 68 IN THIS BEHALF COULD NOT BE MADE IN THE HANDS OF THE FIRM, AO RECORDED REASONS TO REOPEN THE ASSESSMENTS OF THESE PARTNERS. ACCORDING LY THEIR ASSESSMENTS ITA NO. 485/JP/2015 SHRI SAJJAN KUMAR SHARMA (CHOUDHARY) VS. ITO WARD- 7(2), JAIPUR . 3 WAS REOPENED U/S 147/148 OF THE ACT BY ISSUING NOTI CE DATED 29-03-2011 AFTER A PERIOD OF 4 YEARS BUT BEFORE END OF 6 YEARS FROM THE END OF THE ASSESSMENT YEAR IN QUESTION I.E. 2004-05. ASSESSEE OBJECTED TO REOPENING PROCEEDINGS BEING TIME BARRED AS ALL THE RELEVANT P ARTICULARS WERE SUBMITTED IN FIRMS RETURN AND PARTNERS ACCOUNTS SUB MITTED WITH INDIVIDUAL RETURN, THEREFORE, PERIOD OF 4 YEARS WAS APPLICABLE FOR ISSUING NOTICES U/S 148, BESIDES MERITS WERE ALSO CHALLENGED. HOWEVER T HE FIRST APPEALS WERE DISMISSED. AGGRIEVED ASSESSEES ARE IN SECOND APPEA L. 2.3 THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET RAISED THE GROUND OF 147 PROCEEDINGS BEING TIME BARRED AND CONTENDS THAT ALL THE RELEVANT PARTICULARS ABOUT INTRODUCTION OF CAPITAL AS PARTNE RS WERE FILED BY THE ASSESSEES ALONG WITH FIRMS AND INDIVIDUAL RETURNS. LD. AO RECORDED THE FOLLOWING REASONS FOR ISSUING NOTICE U/S 148: THE ASSESSEE HAD FILED RETURN OF INCOME ON 21-02- 2005 DECLARING TOTAL INCOME OF RS. 1,20,527/-. THE SAME WAS PROCESSED U/S 143(1) OF THE I.T. ACT ON 27-02-2006 AT RETURNE D INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS MADE U/ S 143(3) FOR A.Y. 2004-05 IN THE CASE OF M/S. BMD STONE CRUSHER, IT WAS FOUND THAT THE ASSESSEE WAS PARTNER IN THE FIRM AND HAS I NTRODUCED CAPITAL OF RS. 4,30,000/- DURING THE ENTIRE PERIOD AND THE SAME WAS FOUND TO BE UNEXPLAINED IN THE HANDS OF THE ASSESSE E. THIS FACT WAS ALSO ADMITTED BY THE A.R. OF THE FIRM VIDE NOTE SHE ET ENTRY DATED 20- 12-2006 WRITTEN DURING THE COURSE OF ABOVE ASSESSME NT PROCEEDINGS . ITA NO. 485/JP/2015 SHRI SAJJAN KUMAR SHARMA (CHOUDHARY) VS. ITO WARD- 7(2), JAIPUR . 4 A PERUSAL OF THE REASONS REVEALS THAT THE EVEN LD. AO HAS NOT ALLEGED THAT THE ASSESSEES FAILED TO FURNISH RELEVANT PARTICULAR S IN THIS BEHALF. IN THESE CIRCUMSTANCES, THE TIME LIMIT OF 4 YEARS IS APPLICA BLE AND NOT OF 06 YEARS FOR ISSUING NOTICE U/S 148. THEREFORE, THE SAME SHO ULD HAVE BEEN ISSUED ON OR BEFORE 31-03-2009 WHEREAS THE IMPUGNED NOTICE S WERE ISSUED ON 29-03-2011 I.E. BEYOND 4 YEARS. SINCE THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE IN DISCLOSING THE PARTICULARS OF INCOM E, ACTION OF THE AO IN INITIATING TIME BARRED PROCEEDING IS UNTENABLE AND LIABLE TO BE QUASHED. 2.4 THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORIT IES BELOW ON THIS ISSUE. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND MERIT IN THE CONTENTION S OF THE LD. AR OF THE ASSESSEE ABOUT THE LIMITATION OF PROCEEDINGS U/S 14 7/148 OF THE ACT. THE AO HAS NOWHERE ALLEGED THAT THE ASSESSEE HAS FAILED TO FURNISH RELEVANT PARTICULARS ON THE IMPUGNED ISSUE. BESIDES, IT IS C LEAR FROM THE REASONS THAT BASIS OF ISSUING NOTICE WAS INFORMATION WHICH EMANATED FROM THE RETURN FILED BY THE FIRM IN WHICH THE ASSESSEES WER E PARTNERS. THEREFORE, IT CANNOT BE HELD THAT THE ASSESSEES FAILED TO FURNIS H RELEVANT PARTICULARS IN THE RETURN OF INCOME. NO SUCH ALLEGATION HAS BEEN R AISED BY LD. AO WHILE RECORDING THE REASONS ALSO. IN VIEW THEREOF THE TIM E LIMIT OF 06 YEARS ITA NO. 485/JP/2015 SHRI SAJJAN KUMAR SHARMA (CHOUDHARY) VS. ITO WARD- 7(2), JAIPUR . 5 CANNOT BE APPLLIED TO ASSESSEE'S CASES, AS FROM THE LIMIT FOR ISSUING NOTICE U/S 148 WAS 4 YEARS WHICH EXPIRED ON 31-03-2009. TH US THE PROCEEDINGS INITIATED U/S 147/148 ARE TIME BARRED AND THE SAME ARE QUASHED ACCORDINGLY. SINCE THE PROCEEDINGS ARE QUASHED, THE RE IS NO NEED TO GO INTO MERITS OF THE OTHER GROUNDS. HENCE, BOTH THE A PPEALS OF THE ASSESSEES ARE ALLOWED. 4.0 IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/01/2016 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28 /01/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- (1) SHRI SAJJAN KUMAR SHARMA (CHOUDHARY) JAIPUR AND (2) SHRI RAMESHWAR LA L CHOUDHARY, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO,WARD- 7 (2), JAIPUR AND ITO WARD- 7(3), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 485/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR