Ismudeen, Alwar V. ITO, Bhiwadi

ITA 487/JPR/2023

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 1874 (ITAT-JAIPUR)
• Duration Of Justice: 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 30-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Application of stay; Reasonable cause; Reassessment proceedings; Set aside
• Section: 147; 144; 142(1); 133(6); 69A

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 laanhi xkslkbZ] U;kf;d lnL; ds le{k BEFORE: Hon’ble SHRI SANDEEP GOSAIN, JUDICIAL MEMBER SA No.5/JP/2023 & ITA No 487/JP/2023 fu/kZkj.ko"kZ@Assessment Year :2011-12 Shri Ismudeen Isroda Shekhpur Aheer Tijara Alwar – 301 411 (Raj) cuke Vs. The ITO Bhiwadi LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAWPJ 0459 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri Yuvraj Singh, Adv. jktLo dh vksj ls@Revenue by: Mrs. Monisha Choudhary, Addl. CIT-DR lquokbZ dh rkjh[k@Date of Hearing : 24/08/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 30 /08/2023 vkns'k@ORDER PER: SANDEEP GOSAIN, JM The assessee has filed a Stay Application for the stay operation of the impugned order dated 31-05-2023 to restrain the respondents from proceedings further till the final disposal of the present appeal. 2.1 During the course of hearing, the Bench noted that the assessee has filed accompanying appeal (supra) under section 253 of the Act, 1961 against the order dated 31-05-2023 passed by the ld. CIT(A), NFAC Delhi on the various grounds 2 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi raised therein. For the sake of convenience, the grounds raised by the assessee in his appeal before this Bench are as under:- A. Because the impugned OIA is wholly without jurisdiction, bad in law, illegal and has been passed without proper appreciation of the facts. B. Because the impugned OIA has been passed without considering and examining the actual facts of the case, upholding the demand on the income which does not belong to the Appellant. C. Because the impugned OIA has been passed without proper application of mind. D. Because the Ld. Appellate Authority has not considered the documents which were already on record i.e., the bank statement of an account number 61063753275, which does not belong to the Appellant E. Because the alleged account number 61063753275 against which the statement of account was called from the Bank Manager, from the Assessing Officer does not belong to the Appellant. Therefore, imposition of tax and interest on the alleged income of Rs. 12.20 Lacs, which has been taken from the statement of account number 61063753275, not belonging to the Appellant, is wholly erroneous, incorrect, bad in law, arbitrary and the impugned OIA is liable to be set aside on this ground only. F. Because the Appellant does have any bank account in the PNB bank therefore, the interest of Rs. 1,687/- which has been alleged to have been received from PNB Bank and has been added in the income of the Appellant, is wholly erroneous, illegal, incorrect, arbitrary, bad in law. G. Because the impugned reassessment proceedings have been carried out on the assumptions and presumptions and solely with the premeditated mind. 3 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi H. Because the tax cannot be demanded from the Appellant on the income which does not belong to the Appellant. I. Because the case of the Appellant has not been properly presented before the Appellate Authority. There is no fault of the Appellant, and the Appellant cannot be made to suffer on account of not being adequately represented before the Appellate Authority. J. Because the Appellant was prevented for a reasonable cause from producing the complete supporting documents. K. Because the Appellant should not be made to suffer for laxity of its counsels. L. Because in the interest of justice the Appellant has every right to produce proper and correct facts before this Hon'ble Tribunal. M. Because the Appellant is a farmer, not very well educated, who cultivates crops, did not have any Bank Account till 15.06.2010, did not have any PAN Card till 05.01.2017 and the Income Tax Login ID till 15.05.2023. The Appellant cannot be compared with the normal taxpayer and expected to participate in the proceedings, cannot be expected to understand the language of Notices, the consequences which may occur for not furnishing replies etc. N. Without prejudice to the submission that whole of the addition of Rs. 12.20 Lacs and Interest of Rs. 1,687/- do not pertain to the bank account of the Appellant, it is humbly submitted that: i. The Appellant opened his first bank account on 15.06.2021 with account number 61097283311 in the SBI Bank ii. Whatever the cash, the Appellant had saved in previous years as also in the year under consideration, on account of sale of agricultural crops such as Wheat, Groundnuts, Pulses, Mustard, etc., and was deposited in the bank account number 61097283311 during the Financial Year 2010-11, opened in the name of the Appellant on 15.06.2010. 4 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi iii. It is submitted that during the whole year, an amount of Rs. 11,79,250/- was deposited by the Appellant, which is the savings of the Appellant earned by selling agricultural products. iv. The amount of Rs. 11,79,250/- being the agricultural income is exempt from taxation by virtue of Section 10(1) of the Income Tax Act. To quote Section 10(1) of the Income Tax Act: "Incomes not included in total income. 10. In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included (1) agricultural income: .....’’ Agricultural Income has been defined in Section 2(1A) of the Act. To quote: (1A) "agricultural income" means- (a) any rent or reverse derived from land which is situated in India and in word for agricultural purposes: (b) any income derived from such land by- (i) agriculture; or (ii) the performance by a cultivator or receiver of rent-in- kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market; or (iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in paragraph (1) of this sub-clause; 5 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi v. Therefore, Rs. 11,79,250/- being agricultural income of the Appellant is not liable to be taxed. O. Because impugned reassessment proceedings have been carried out without any independent application of mind and in a complete mechanical manner by simply relying on the NON-PAN AIR data/information. The Ld. Authority has completely failed to understand and examine the source of the income of the Appellant. P. Because the reassessment proceedings have been carried in gross violation of principles of natural justice, in complete contravention of Article 14, 265 and 300A of the Constitution of India. Q. Because the Appellant is a small farmer, who does not have any land of his own and is no position to pay the tax and interest demand as confirmed in the impugned OIA. R. Because in the end substantial justice should prevail. S. Because in the given sets of peculiar facts and circumstances and in the interest of substantial justice, this Hon'ble Tribunal may consider the plea of the Appellant.’’ 2.2 The Bench has taken into consideration the grounds of appeal raised by the assessee (supra) and found that in first appeal the ld. CIT(A) has dismissed the grounds raised by the assessee before him by observing as under:- ‘’7. GROUND NO.1, 2, 3 & 4:- In these grounds, the appellant has contested the re-opening of assessment u/s. 147 r.w.s. 148 of the I. T. Act, 1961 and so also passing of ex-parte order u/s. 144 r.w.s. 147 of the Act. The facts of the case have been stated in detail above and therefore the same are not repeated. In this regard, the appellant has not made any 6 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi submission neither at the time of assessment proceedings not at the appellate proceedings. 7.1. DECISION: - I have gone through and duly considered the facts emanating from grounds of appeal and statement of facts and other facts of the case available on the record. 7.1.1 Before going to the specific grounds of appeal here I would like to bring to record the non-cooperative attitude of the appellant despite granting sufficient time and issuing multiple notices. During the appellate proceedings the appellant has not submitted any submission or evidences which supports his case. It is clearly seen that the appellant has failed to comply with the terms of notices and has squarely failed to avail the opportunity granted to furnish his say. The appeal is therefore deserved to be decided ex-parte by dismissing it. However, to give a fair opportunity to the appellant ground wise decision is given hereunder to specify the principle of natural justice. I have perused the assessment order. I find no merit on the submission and contention of the appellant as far as re-opening of the case for AY 2011-12 u/s. 147 of the Act and issuing of notice u/s. 48, From the facts as evident from the assessment order, there was prima-facie credible evidence that the appellant had deposited cash amounting to Rs. 11,79,250/- on various dates in his saving bank with SBBJ Bank (now SBI). The AO also called for Bank statement u/s. 133(6) of the I.T. Act from the bank. The bank statements also confirmed that the appellant had made cash deposits of Rs 12,20,000/-. To ascertain the above facts, while notice u/s 148 of the Act had been issued to the appellant, the appellant should have raised, the objection before the AO for issuing such notice. The appellant did not comply to the said notices issued. As such, the re- opening of assessment u/s 147 and issuing of notice u/s 148 of the Act is held as valid. No interference in AO's order in this regard is called for. The contention of the appellantlis hereby rejected Ground nos. 1,2,3 and 4 raised by the appellant are hereby dismissed. 8. GROUND NOS. 5 & 6:- In these grounds, the appellant has contested the addition of Rs. 12,20,000/- made u/s. 69A and Rs. 1,6877- u/s. 57. The facts of the case have been stated in detail above and therefore the same are not repeated. 7 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi 8.1 In these grounds, the appellant has mainly contested the addition u/s. 69A and u/s, 57. I have considered the assessment order and the statement of facts filed by the appellant. It is seen that except for stating the grounds the appellant has not given any documentary evidence or any submission explaining his case that the additions is factually and legally incorrect. Even otherwise in the absence of any submission or plausible evidence there remains no alternative with the AO but to make the additions. I, therefore, confirm the action of the AO. This additions are therefore confirmed. Grounds of Appeal No. 5 & 6 are therefore dismissed. 8.2. DECISION: - I have gone through and duly considered the facts emanating from grounds of appeal and statement of facts and other facts of the case available on the record. 8.2.1 Before going to the specific grounds of appeal here I would like to bring to record the non-cooperative attitude of the appellant despite granting sufficient time and issuing multiple notices. During the appellate proceedings the appellant has not submitted any submission or evidences which supports his case. It is clearly seen that the appellant has failed to comply with the terms of notices and has squarely failed to avail the opportunity granted to furnish his say. The appeal is therefore deserved to be decided ex-parte by dismissing it. However, to give a fat opportunity to the appellant ground wise decision is given hereunder to specify the principle of naturaljustice. 8.2.2 In these grounds, the appellant has mainly contested the addition u/s. 69A and u/s. 57. I have considered the assessment order and the statement of facts filed by the appellant. It is seen that except for stating the grounds the appellant has not given any documentary evidence or any submission explaining his case that the additions is factually and legally incorrect. Even otherwise in the absence of any submission or plausible evidence there remains no alternative with the AO but to make the additions. I, therefore, confirm the action of the AO. This additions are therefore confirmed. Grounds of Appeal No. 5 & 6 are therefore dismissed. 9. In this ground, the appellant craves his indulgence to add amend, alter or delete any or all of the ground of appeal at any time before decision of appeal. No such option has been exercised by the appellant at the appellate stage and, therefore, this ground is treated as dismissed 10. In the result, the appeal is dismissed.’’ 8 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi 2.3 During the course of hearing, the ld. AR of the assessee prayed for stay operation of the impugned order dated 31-05-2023. 2.4 On the other hand, the ld. DR objected to the stay application of the assessee and relied upon the order of the ld. CIT(A). 2.5 We have heard both the parties and perused the materials available on record. The Bench noted that the main appeal of the assessee in ITA No.487/JP/2023 which is fixed for hearing on 19-10-2023 has now been preponed to hear it alongwith the stay application of the assessee. The Bench in the appeal of the assessee noted that both orders i.e. assessment order as well as ld. CIT(A)’s order were ex-parte as nothing was advanced by the assessee before them in spite of various opportunities. Therefore, the additions were made in the hands of the assessee. Brief facts of the case are that the assessee is an individual. The assessee individual did not file his return of income for A.Y. 2011-12. As per information available on Non PAN AIR data it was seen that the assessee individual during the year under consideration had deposited cash to the tune of Rs. 11,79,250/- on various dates in the bank account maintained in SBBJ Bank (now SBI). The AO therefore initiated proceedings u/s. 147 and issued notice u/s. 148 on 28.03.2018 and served through speed post on 30.03.2018. The assessee did not comply with the said notice. The AO therefore issued notice u/s, 142(1) alongwith a questionnaire on 24.07.2018 to furnish return of income. The assessee individual 9 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi did not comply with this notice also. The AO Further, issued a show cause notice dt. 25.09.2018. The assessee neither appeared nor filed any written submissions. The AO passed an order u/s. 147/144 of the Act on 28.02.2016 assessing the income of the assessee at Rs. 12,21,687/-. The assessee was in appeal against the said assessment order before the ld. CIT(A) who also confirmed the action of the AO in spite of providing various opportunities to the assessee. It is not imperative to repeat the facts of the case as has been elaborately discussed hereinabove by the lower authorities. It is also an undisputed fact that the assessee was granted several opportunities either by the ld. CIT(A) or by the AO to argue the case but the assessee remained non-cooperative and negligent in pursuing his case on the dates of hearing of the appeal for which the Bench awards cost of Rs.2,000/- directing the assessee to deposit the same in the Prime Minister Relief Fund and copy of the same shall be submitted to the AO by the assessee for proof. Thus the appeal of the assessee is restored to the file of the AO to decide the issues (supra) afresh by providing one more opportunity of hearing to the assessee, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of assessment proceedings before the AO. Thus the appeal of the assessee is allowed for statistical purposes and the stay application of the assessee becomes infructuous accordingly. 10 SA NO.5/JP/2023 AND ITA NO. 487/JP/2023 Shri Ismudeen, Alwar vs ITO, Bhiwadi 3.0 In the result, the appeal of the assesee is allowed for statistical purposes and that of the stay application of the assessee becomes infructuous.. Order pronounced in the open court on 30/08/2023. Sd/- ¼lanhi xkslkbZ½ (Sandeep Gosain) U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 30/08/2023 *Mishra vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Shri Ismudeen, Alwar 2. izR;FkhZ@ The Respondent- The ITO, Bhiwadi 3. vk;djvk;qDr@ The ld CIT 4. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 5. xkMZQkbZy@ Guard File (SA No. 5 /JP/2023 & ITA No.487/JP/2023) vkns'kkuqlkj@ By order, lgk;diathdkj@Asstt. Registrar