Yakubali Abdullatif Qureshi, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2, GANDHIDHAM

ITA 5/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0162 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 03-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DR ADHIA
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAV A, AM ITA NO. 5/RJT/2012 / ASSESSMENT YEAR 2007-08 YAKUBALI ABDULLATIF QURESHI, C/O.D.R. ADHIA, 'OM SHRI PADMALAYA', 16, JAGNATH PLOT, DR. YAGNIK ROAD, RAJKOT PAN: AACPQ1972D ( * / APPELLANT) VS. INCOME TAX OFFICER, WARD-2, GANDHIDHAM +,* / RESPONDENT -. / ASSESSEE BY SHRI. D.R. ADHIA, . / REVENUE BY SHRI AVINASH KUMAR . / DATE OF HEARING 18.9.2012 . / DATE OF PRONOUNCEMENT 21.09.2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 30.11.2011 OF CIT(A) FOR THE ASSESSMENT YEAR 2007-08 CONFIRMING THE ADDITION OF RS.2, 62,370/- MADE BY THE AO FOR THE ASSESSMENT YEAR 2007-08. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVI DUAL ENGAGED IN THE BUSINESS OF TRADING IN MEAT. FOR THE ASSESSMENT YEAR UNDER APPEAL HE FILED RETURN OF INCOME DECLARING TAXABLE INCOME OF RS.1,00,000/-. THE AO FRAMED THE ASSESSMENT U/S 143(3) ON 24.11.2009 WHERE IN HE MADE AN ITA NO. 5/RJT/2012 2 ADDITION OF RS.2,62,370/- FOR THE DETAILED REASONS GI VEN IN PARAGRAPH 4 WHICH READ AS UNDER : 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS SEEN FROM THE BANK STATEMENT OF BANK OF BARODA IN ACCOUN T NO.10080200000416 THAT AN AMOUNT OF RS.3,02,270/- I S SHOWN AS CLOSING BALANCE WHEREAS THE ASSESSEE HAS NOT SHOWN ANY BALAN CE IN THE BALANCE SHEET. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE SAME SHOULD NOT BE DISALLOWED AND TREATED A S UNEXPLAINED INCOME. THE ASSESSEE HAS STATED THAT RS.40,000/- IS T REATED AS BANK BALANCE AND BALANCE OF RS.31,198/- IS TREATED AS CA SH ON HAND OUT OF RS.71,198/- BALANCE SHOWN IN BALANCE SHEE T AS CASH AND BANK. THEREFORE, THE DIFFERENCE AMOUNT OF RS.2 ,62,370/- IS TREATED AS UNEXPLAINED DEPOSIT WITH BANK AND THE SAME I S ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 3. AGAINST THE AFORESAID ORDER, THE ASSESSEE PREFERRED A N APPEAL WHICH WAS DISMISSED BY THE LD. CIT(A) VIDE IMPUGNED ORDE R DATED 30.11.2011 FOR PRESUMING THAT THE ASSESSEE HAS NOTHING TO SAY IN THE MATTER AS HE HAS NOT MADE HIS APPEARANCE BEFORE HIM. FOR DISMISSING THE APPEAL, THE LD. CIT(A) RELIED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. MOTOR GENERAL FINANCE L TD. REPORTED IN 254 ITR 449(DELHI). AGGRIEVED WITH THE ORDER OF THE LD. CIT (A), THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 4. AT THE TIME OF HEARING, BEFORE US, SHRI. D.R. AD HIA, THE LD.AR APPEARED AND POINTED OUT THAT WITH THE RETURN OF IN COME THE ASSESSEE HAS NOT FURNISHED THE BALANCE SHEET. THEREFORE, IT IS NOT KNOWN FROM WHERE IN THE ASSESSMENT ORDER THE AO HAS MENTIONED THAT THE ASSESSE E HAS NOT SHOWN CLOSING BALANCE. THE LD. AR OF THE ASSESSEE SUBMITTE D THAT THE ASSESSEE HAS SHOWN THE TAXABLE INCOME OF RS.1,00,000/- ON ESTIMATED BASIS AS HE IS NOT MAINTAINING BOOKS OF ACCOUNT, THER EFORE, EITHER THE ADDITION OF RS.2,62,370/- MADE BY THE AO BE DELET ED OR THE MATTER BE RESTORED TO THE FILE OF THE AO FOR MENTIONING CORRECT FACT. ITA NO. 5/RJT/2012 3 5. ON THE OTHER HAND, SHRI AVINASHKUMAR, THE LD. DR A PPEARED ON BEHALF OF THE REVENUE AND STRONGLY OBJECTED TO THE A FORESAID CONTENTION OF THE ASSESSEE. THE LD. DR DREW OUR ATTENTION TO THE S TATEMENT OF FACT FILED BEFORE THE LD. CIT(A) AND POINTED OUT THAT N EITHER IN THE STATEMENT OF FACTS NOR IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS TAKEN THE PLEA THAT HE IS NOT MAINTAINING THE BOOKS OF ACCOUNT. HE FURTHE R DREW OUR ATTENTION TO THE GROUND NO.7 RAISED BEFORE THE TRIBUNAL WHICH READS AS UNDER : 7. WITHOUT PREJUDICE, THE LD. CIT(A) HAS ERRED IN LA W AND FACTS IN NOT CONSIDERING THE PEAK POSITION AND AMOUNT TO BE ADDE D ACCORDING TO PEAK WORKING INSTEAD OF FULL ADDITION OF RS.2,62,370/- MADE. THE DISALLOWANCE NEEDS SUITABLE REDUCTION 6. THE LD. DR ALSO POINTED OUT THAT THE PLEA RAISED I N THE AFORESAID GROUND ALSO INDICATE THAT ASSESSEE IS NOT DISPUTING THE FAC TS REGARDING MAINTENANCE OF BOOKS OF ACCOUNT. CONTINUING HIS ARGUME NT, THE LD. DR POINTED OUT THAT BEFORE THE AO THE ACCOUNTANT OF TH E ASSESSEE APPEARED AND AO IN THE ASSESSMENT ORDER CLEARLY MENTIONED THAT HE HAS PRODUCED NECESSARY DETAILS AND ALSO PRODUCED BOOKS OF ACCOUNTS WHICH W ERE TEST CHECKED. 7. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GON E THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NO TE THAT IN PARAGRAPH 3 OF THE ASSESSMENT ORDER, THE AO HAS MENTIONED THAT SHRI NAVINBHAI VIJAYBHAI TANK, ACCOUNTANT OF THE ASSESSEE APPEARED AND PR ODUCED THE BOOKS OF ACCOUNT. THESE BOOKS OF ACCOUNT WERE TEST CHECKED. UN DER THESE CIRCUMSTANCES, THE PLEAS OF THE ASSESSEE AT THIS STAGE THAT THE ASSESSEE IS NOT MAINTAIN BOOKS OF ACCOUNT CANNOT BE ACCEPTED. BE THAT IT MAY, EVEN IN AN EX-PARTE ORDER IT IS THE DUTY OF THE LD. CIT(A) TO CALL THE ITA NO. 5/RJT/2012 4 ASSESSMENT RECORD. PRIMA FACIE, THIS WAS NOT DONE. WE, THE REFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THIS ISSUE TO HIS FILE WITH THE DIRECTION THAT HE WILL CALL THE ASSESSMENT RECORD, CONFR ONT THE ASSESSEE IF THE BALANCE SHEET FILED WITH THE RETURN OF INCOME, IF NECESSARY, THEN HE WILL DECIDE THE PLEAS RAISED IN GROUND NO.7 BEFORE US IN ACC ORDANCE WITH LAW AFTER GIVING OPPORTUNITY IF BEING HERD TO BOTH THE SIDE. 8. WE MAY OBSERVED THAT BEFORE US, THE LD. AR OF THE ASSESSEE ENSURED THAT BEFORE THE LD. CIT(A), HE WILL CO-OPER ATE WITH THE CIT(A). WE ACCORDINGLY DIRECT THE ASSESSEE TO APPEAR BEFORE THE L D. CIT(A) AND PRODUCE RELEVANT DOCUMENTS/EXPLANATION SO THAT THE L D. CIT(A) MAY PROPERLY ADJUDICATE THE ADDITION OF RS.2,62,370/-. 9. IN THE RESULT, FOR THE STATISTICAL PURPOSE, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD SD ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 21-09-2012. /RAJKOT SRL . .. . +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-, 2. +,* / RESPONDENT- 3. : / CONCERNED CIT. 4. :- / CIT (A). 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. ITA NO. 5/RJT/2012 5 / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.