Shri Deepesh Savla, Vidisha V. THE ITO, Vidisha

ITA 500/IND/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9950 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-03-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 12-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: N D PATWA S
• Keywords: Unexplained investment; Business income; Opportunity of being heard; Additional evidence; Set aside
• Section: 143(3); 69; 148

Judgement Text

DEEPESH AND GIRISH SAVLA ITA 500, 503 AND 504 OF 2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.500/IND/2016 A.Y. 2008-09 DEEPESH SAVLA, VIDISHA PAN ADAPS 8441 E :: APPELLANT VS ITO-VIDISHA :: RESPONDENT ITA NOS.503 & 504/IND/2016 A.YS. 2008-09 & 2011-12 GIRISH SAVLA, VIDISHA PAN ADAPS 8438 D :: APPELLANT VS ITO-VIDISHA :: RESPONDENT ASSESSEES BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA, ADVOCATES REVENUE BY SHRI K.G. GOYAL, SR. DR DATE OF HEARING 27.3.2019 DATE OF PRONOUNCEMENT 01.4.2019 O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.500/IND/2016 IN CASE OF DEEPESH SAVLA THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. CIT(A)-II, BHOPAL, DATED 14.1.2016 FOR THE ASSESSMENT YEAR 200 8-09 ON THE FOLLOWING GROUNDS OF APPEAL: DEEPESH AND GIRISH SAVLA ITA 500, 503 AND 504 OF 2016 2 1. THAT THE ORDER OF LD. CIT(A) IS BAD-IN-LAW, CON TRARY TO FACTS ON RECORD AND ALSO AGAINST THE PROVISIONS OF LAW, WITHOUT JURISDICTION AND VOID AB-INITIO AND HENCE L IABLE TO BE QUASHED. 2. THAT LD. CIT(A) ERRED IN HOLDING THAT ASSESSEE H AS FAILED TO SATISFACTORILY EXPLAIN THE SOURCE OF DEPOSIT IN SAV ING ACCOUNT AMOUNTING TO RS.2,62,99,275/- WHICH SUBSTAN TIAL EVIDENCE. 3. THAT LD. CIT(A) ERRED IN HOLDING THAT AMOUNT OF RS.2,62,99,275/- BEING AMOUNT DEPOSITED IN SAVING ACCOUNT SHOULD BE ADDED TO THE INCOME OF THE ASSESS EE BY CONSIDERING THE SAME AS UNEXPLAINED INVESTMENT AS P ER THE PROVISION OF SECTION 69 OF THE INCOME TAX ACT, 1961 WITHOUT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE. 2. FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGE D IN THE BUSINESS OF TRADING IN FOOD GRAINS CARRIED IN THE NAME OF M/S. MOHAK TRADERS. THE ASSESSEE FILED RETURN OF INCOME DECLARING INCOME AT RS.1,05,904/-. AS PER AIR INFORMATION, THE ASSESSEE HAD MADE CASH DEPOSIT S TO THE TUNE OF RS.2,62,99,275/- IN HIS TWO SAVING ACCOUNTS IN HDFC BANK AND ICICI BANK. THE NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE AND T HE ORDER U/S 143(3) R.W.S. 148 WAS PASSED BY THE ASSESSING OFFICER MAKI NG ADDITION OF RS.2,62,99,275/- U/S 69A OF THE INCOME TAX ACT ON A CCOUNT OF UNEXPLAINED SOURCES HOLDING THAT THE ASSESSEE FAILED TO INCLUDE SAVING ACCOUNTS IN BALANCE-SHEET, TOTAL SALES DO NOT INCLUDE CASH DEPO SITS IN BANK ACCOUNTS AND BOOKS OF ACCOUNT ARE NOT AUDITED U/S 44AB. BEING AG GRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A), WHO ALSO CONF IRMED THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE F AILED TO SATISFACTORILY EXPLAIN THE SOURCE OF DEPOSITS IN THE BANK ACCOUNTS WITH DOCUMENTARY EVIDENCES. STILL AGGRIEVED, THE ASSESSEE IS BEFORE THIS TRIBUNAL. DEEPESH AND GIRISH SAVLA ITA 500, 503 AND 504 OF 2016 3 3. AT THE OUTSET OF THE HEARING, LD. COUNSEL FOR TH E ASSESSEE CONTENDED THAT THE ASSESSEE HAS FILED APPLICATION FOR ADMISSI ON OF ADDITIONAL EVIDENCES UNDER RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL ) RULES STATING THAT THE BANKS PROVIDED AN ADDITIONAL FACILITY OF ZERO CHARG ES ON MAKING DEMAND DRAFT FROM THE ACCOUNTS. THE ASSESSEE IN HIS GOOD F AITH AND WITH A VIEW TO EARN COMMISSION INCOME, ALLOWED THIRD PARTIES TO DE POSIT CASH IN HIS BANK ACCOUNTS AND ISSUED DEMAND DRAFT IN FAVOUR OF UNKNO WN OIL AND SUGAR COMPANIES. HOWEVER, THE ASSESSEE IS NOW SUBMITTING RECORDS I.E. REGISTER WHEREIN THE ASSESSEE HAD MAINTAINED DATE-WISE DEPOS IT AND COMMISSION EARNED THEREON, WHICH WILL PROVE THAT THE CASH DEPO SITS ARE NOT HIS UNDISCLOSED INCOME BUT WERE DEPOSITED BY VARIOUS TH IRD PARTIES AND WAS IMMEDIATELY WITHDRAWN IN THE FORM OF DEMAND DRAFT. THE LEARNED COUNSEL FOR THE ASSESSEE RELYING UPON RELEVANT JUDICIAL PRO NOUNCEMENTS PRAYED FOR ADMISSION OF THESE ADDITIONAL EVIDENCES STATING THA T SAME COULD NOT BE SUBMITTED EARLIER AS THE ASSESSEE WAS NOT PROPERLY ADVISED IN THIS MATTER BY THE EARLIER COUNSEL. ON THE OTHER HAND, LD. SR. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF LOWER AUTHORITIES. BEFORE US, THE ASSESSEE HAS FILED AN A PPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES UNDER RULE 29 OF THE INCOME TA X (APPELLATE TRIBUNAL) RULES IN THE FORM OF REGISTER WHEREIN THE ASSESSEE HAD MAINTAINED DATE-WISE DEPOSIT AND COMMISSION EARNED THEREON. THE ASSESSEE HAS EXPLAINED REASON FOR NON-FURNISHING OF THE SAME BEFORE THE ASSESSING OFFICER. LOOKING TO THE DEEPESH AND GIRISH SAVLA ITA 500, 503 AND 504 OF 2016 4 CIRCUMSTANCES, WE ADMIT THE APPLICATION FOR ADDITIO NAL EVIDENCES. OUR VIEW IS FORTIFIED WITH THE RATIO LAID DOWN IN THE CASES OF CIT VS. KUM. SATYA SETIA (1983) 37 CTR 66 (MP); CIT VS. GANI BHAI WAHAB BHAI (1998) 145 CTR 526 (MP) AND RAJMOTI INDUSTRIES VS. ITO (1995) 52 ITD 2 86 (AHD.). THUS, TOTALITY OF FACTS CLEARLY SUGGESTS THAT ADDITIONAL EVIDENCES REQUIRES DELIBERATION AT THE LEVEL OF THE ASSESSING OFFICER, THEREFORE, IN T HE INTEREST OF JUSTICE, THE ASSESSEES MATTER SHOULD BE RECONSIDERED BY THE ASS ESSING OFFICER AFRESH. ACCORDINGLY, THE ORDERS OF THE REVENUE AUTHORITIES ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSIN G OFFICER WHO WILL RECONSIDER THE RELEVANT DOCUMENTS/SUBMISSIONS IN TH E LIGHT OF THE ADDITIONAL EVIDENCES AFRESH. ASSESSEE WOULD APPEAR WITHOUT WAI TING BEFORE THE ASSESSING OFFICER FOR FURTHER NECESSARY ACTION. THE ASSESSING OFFICER WOULD EXAMINE THE CONTENTION OF THE ASSESSEE FROM THE PAP ERS FILED BEFORE US AND THEN REFRAME THE ASSESSMENT AFRESH IN TERMS AS INDI CATED HEREINABOVE AFTER AFFORDING DUE OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE AS PER LAW AND THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE EVIDENCE/S UBMISSION, IF ANY, IN SUPPORT OF HIS CLAIM AND COOPERATE BEFORE THE ASSES SING OFFICER IN THIS REGARD. THUS, THE APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES ONLY. ITA NOS.503 & 504/IND/2016 IN CASE OF GIRISH SAVLA 5. BOTH THE ABOVE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE DIFFERENT ORDERS OF LD. CIT(A)-II, BHOPAL, DATED 14.1.2016 FO R THE ASSESSMENT YEARS 2008-09 & 2011-12 ON THE FOLLOWING GROUNDS OF APPEA L: DEEPESH AND GIRISH SAVLA ITA 500, 503 AND 504 OF 2016 5 1. THAT THE ORDER OF LD. CIT(A) IS BAD-IN-LAW, CON TRARY TO FACTS ON RECORD AND ALSO AGAINST THE PROVISIONS OF LAW, WITHOUT JURISDICTION AND VOID AB-INITIO AND HENCE L IABLE TO BE QUASHED FOR BOTH THE ASSESSMENT YEARS. 2. THAT LD. CIT(A) ERRED IN HOLDING THAT ASSESSEE H AS FAILED TO SATISFACTORILY EXPLAIN THE SOURCE OF DEPOSIT IN SAV ING ACCOUNT AMOUNTING TO RS.1,30,92,720/- & RS.63,24,47 0/- WHICH SUBSTANTIAL EVIDENCE, RESPECTIVELY, FOR THE ASSESSMENT YEARS 2008-09 & 2011-12. 3. THAT LD. CIT(A) ERRED IN HOLDING THAT AMOUNT OF RS.1,30,92,720/- & RS.63,24,470/- BEING AMOUNT DEPOSITED IN SAVING ACCOUNT SHOULD BE ADDED TO THE INCOME OF THE ASSESSEE BY CONSIDERING THE SAME AS UNEXPLAINED INVESTMENT AS PER THE PROVISION OF SECT ION 69 OF THE INCOME TAX ACT, 1961 WITHOUT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE, RESPECTIVELY, FOR THE ASSESSMENT YEARS 2008-09 & 2011-12. 6. BOTH THE PARTIES SUBMITTED THAT FACTS AND ISSUES RAISED IN BOTH THESE APPEALS ARE IDENTICAL TO THAT OF DEEPESH SAVLA (SUP RA) AND THE DECISION TAKEN IN THE CASE OF DEEPESH SAVLA WOULD ALSO BE APPLICAB LE TO THE CASE OF GIRISH SAVLA. THUS, FOLLOWING THE FINDING RECORDED IN THE CASE OF DEEPESH SAVLA (SUPRA), THE ORDERS OF THE REVENUE AUTHORITIES ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFIC ER WHO WILL RECONSIDER THE RELEVANT DOCUMENTS/SUBMISSIONS IN THE LIGHT OF THE ADDITIONAL EVIDENCES AFRESH. ASSESSEE WOULD APPEAR WITHOUT WAITING BEFOR E THE ASSESSING OFFICER FOR FURTHER NECESSARY ACTION. THE ASSESSING OFFICER WOULD EXAMINE THE CONTENTION OF THE ASSESSEE FROM THE PAPERS FILED BE FORE US AND THEN REFRAME THE ASSESSMENT AFRESH IN TERMS AS INDICATED HEREINA BOVE AFTER AFFORDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER L AW AND THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE EVIDENCE/SUBMISSION, I F ANY, IN SUPPORT OF HIS DEEPESH AND GIRISH SAVLA ITA 500, 503 AND 504 OF 2016 6 CLAIM AND COOPERATE BEFORE THE ASSESSING OFFICER IN THIS REGARD. THUS, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATI STICAL PURPOSES ONLY. 7. FINALLY, APPEALS FILED BY ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 01.4.2019 . SD/- (MANISH BORAD) ACCOUNTANT MEMBER SD/- ( KUL BHARAT) JUDICIAL MEMBER DATED : 01.4.2019 !VYAS! COPY TO: ASSESSEE/RESPONDENT/CIT(A)/CIT/DR, INDORE