Smt. Manju Devi Singhvi, JODHPUR V. ITO, NAGAUR

ITA 490/JODH/2013

• Counselvise Citation: 49023314 RSA 2013
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-03-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: U C JAIN
• Keywords: Business income; Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 490/JODH/2013 (A.Y. 2009-10) SMT. MANJU DEVI SINGHVI, VS. ITO, WARD-2, C/O SHRI U.C. JAIN, ADVOCATE. NAGAUR. SHATRUNJAY HARI SINGH NAGAR, PALI ROAD, JODHPUR. PAN NO. ACDPS 4507 P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI U.C. JAIN DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 11/03/2014. DATE OF PRONOUNCEMENT : 13/03/2014. O R D E R PER N.K. SAINI, A.M THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 21/08/2013 OF LD. CIT (A), JODHPUR. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) ERRED IN CONFIRMING ALL THE ADDITIONS MADE BY AO SO LELY ON THE GROUND THAT THE ASSESSEE APPELLANT WAS NOT INTERESTED IN P ERUSING THE APPEAL 2 PARTICULARLY WHEN NO NOTICE FIXING THE HEARING OF A PPEAL ON 20/08/2013 WAS SERVED ON THE ASSESSEE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) GROSSLY ERRED IN SUSTAINING THE FOLLOWING ADDITIONS WHICH WERE BEYOND THE SCOPE OF PROCEEDINGS BEFORE THE AO. A) TRADING ADDITIONS RS. 30,950/- B) DEPOSIT IN BANK ACCOUNT RS. 1,11,531/- C) UNEXPLAINED DEPOSIT RS. 1,20,700/- D) INVESTMENT RS. 17,656/- E) ALLEGED ACCRUED INTEREST RS. 14,421/- F) ADDITION ON ACCOUNT OF LOW HOUSEHOLD EXPENSES RS. 36,000/- 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN CONFIRMING TRADING ADDITION OF RS. 30,590/ - 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 1,11,531/- ON A CCOUNT OF DEPOSIT IN BANK ACCOUNT PARTICULARLY WHEN THE CREDIT IN THE BANK IS LESS THAN TOTAL SALES DISCLOSED BY THE ASSESSEE. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 1,20,700/- ON A CCOUNT OF DEPOSIT PARTICULARLY WHEN PROVISIONS OF SECTION 68 ARE NOT APPLICABLE. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 17,656/- ON ACC OUNT OF INVESTMENT. 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 14,421/- ON ACC OUNT OF ALLEGED ACCRUED INTEREST. 8. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 36,000/- ON ACC OUNT OF HOUSEHOLD EXPENSES. 9. THAT THE PETITIONER MAY KINDLY BE PERMITTED TO R AISE ANY ADDITIONAL OR ALTERNATIVE GROUND AT OR BEFORE THE TIME OF HEARING . 10. THE PETITIONER PRAYS FOR JUSTICE & RELIEF. 2 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 21/08/2009 DECLARING AN INCOME OF RS. 1,7 9,250/-, WHICH WAS 3 PROCESSED ON 13/08/2010 UNDER SECTION 143(1) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT). L ATER ON, CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER OBSER VED THAT THE ASSESSEE CLAIMED TOTAL SALES OF RS. 33,37,350/- AND AS PER T HE PROVISIONS OF SECTION 44AF OF THE ACT, THE NET PROFIT RATE OF 5% WILL BE APPLIED FOR THE RETAIL TRADERS WHERE THE TURNOVER IS LESS THAN RS. 40, 00, 000/-, BUT THE ONUS WAS ON THE ASSESSEE TO PROVE THAT THE SAME WAS LESS THA N THE AMOUNT PRESCRIBED UNDER SECTION 44AF OF THE ACT. THE ASSE SSING OFFICER ESTIMATED THE SALES OF THE ASSESSEE AT RS. 40,00,00 0/- AND WORKED OUT THE NET PROFIT AT RS. 2,00,000/- INSTEAD OF RS. 1,69,05 0/- DISCLOSED BY THE ASSESSEE. ACCORDINGLY, THE ADDITION OF RS. 30,950/ - WAS MADE. THE ASSESSING OFFICER ALSO MADE OTHER ADDITIONS AND WOR KED OUT THE TOTAL INCOME OF THE ASSESSEE AT RS. 5,10,510/- AS PER THE FOLLOWING DETAILS:- INCOME DECLARED RS. 1,79,250/- ADD: 1) TRADING ADDITIONS RS. 30,950/- 2) DEPOSIT IN BANK ACCOUNT RS. 1,11,531/- 3) UNEXPLAINED DEPOSIT RS. 1,20,700/- 4) INVESTMENT RS. 17,656/- 5) ALLEGED ACCRUED INTEREST RS. 14,421/- 6) ADDITION ON ACCOUNT OF LOW HOUSEHOLD EXPENSES RS. 36,000/- ------------------ TOTAL RS. 5,10,508/- ROUNDED OFF RS. 5,10,510/- 4 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER T O THE LD. CIT(A), WHO DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE ON ACCOUNT OF NON- PROSECUTION. NOW THE ASSESSEE IS IN APPEAL. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE LD. CIT(A) PASSED THE ORDER EXPARTE WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS FURTHER STATED THAT THE LD. CIT(A) HAD NOT DECIDED THE ISSUES ON MERIT, THE REFORE, THE ADDITIONS SUSTAINED BY HIM WERE NOT JUSTIFIED. IT WAS FURTHE R STATED THAT THE ASSESSING OFFICER ALSO WITHOUT APPRECIATING THE FAC TS AND WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE MADE TH E ARBITRARY ADDITIONS. IT WAS REQUESTED THAT THE MATTER MAY BE SENT BACK T O THE ASSESSING OFFICER SINCE THE PROPER OPPORTUNITY TO EXPLAIN THE CASE WAS NOT PROVIDED TO THE ASSESSEE. 5. IN HIS RIVAL SUBMISSIONS, LEARNED D.R. ALTHOUGH SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW, BUT DID NOT OBJECT IF THE MATTER IS SENT BACK TO THE ASSESSING OFFICER TO BE DECIDED AFRESH AS PRAYE D BY LEARNED COUNSEL FOR THE ASSESSEE. 6 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT 5 CASE, IT IS NOTICED THAT THE ASSESSING OFFICER WHIL E MAKING THE IMPUGNED ADDITIONS HAD NOT MENTIONED THE EXPLANATION AND SUB MISSIONS OF THE ASSESSEE IN THE ASSESSMENT ORDER. SIMILARLY, THE L D. CIT(A) ALSO HAD NOT DECIDED THE ISSUES ON MERIT AND DISMISSED THE APPEA L OF THE ASSESSEE IN LIMINE . IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMN ED UNHEARD AS PER THE DICTUM OF AUDI ALTERAM PERTAM. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE PRESENT CASE, REMAND THIS ISSUE BACK TO THE FILE OF THE ASS ESSING OFFICER TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER P ROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARING TO THE ASSESSEE. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 13 TH MARCH, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 13 TH MARCH, 2014. VR/- COPY TO: 1. THE APPELLANT, 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR .