Swapnil Juneja, Lucknow V. Dy. Commissioner of Income Tax, Lucknow

ITA 510/LKW/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0175 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 08-10-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 04-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J S MINHAS
• Assessee Lawyers: R P TIWARI
• Keywords: Depreciation; Income from undisclosed sources; Principle of natural justice; Non compliance; Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. N .S. SAINI , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 510/LKW/2017 ASSESSMENT YEAR: 2011 - 12 SWAPNIL JUNEJA 403, A1, ARIF PALACE COURT 6/6 , MALL AVENUE, HAZRATGANJ LUCKNOW V. DCIT RANGE 2 LUCKNOW T AN /PAN : ACKPJ7302G (APP ELL A NT) (RESPONDENT) APP ELL ANT BY: SHRI R.P. TIWARI, A.R. RESPONDENT BY: SHRI J.S. MINHAS, CIT (DR) DATE OF HEARING: 08 10 201 8 DATE OF PRONOUNCEMENT: 09 10 201 8 O R D E R PER N.S. SAINI , A .M : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) RAISING FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS FAILED TO APPRECIATE THAT THE ASSESSMENT HAS B EEN FRAMED WITHOUT AFFORDING PROPER OPPORTUNITY TO THE APPELLANT BLINDLY FOLLOWING THE ORIGINAL ASSESSMENT ORDER AND IS AGAINST THE PRINCIPLES OF NATURE JUSTICE AND BAD IN LAW. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX ACT APPEALS IS NOT JUSTIFI ED IN NOT AFFORDING PROPER OPPORTUNITY TO THE APPELLANT AND PASSING AN EX - PARTE APPELLATE ORDER. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS FAILED TO APPRECIATE THAT ALL THE NOTICES LISTED IN THE APPELLATE IT A NO.510/LKW/2017 PAGE 2 OF 6 ORDER WERE NOT SERVED ON TH E APPELLANT AND HENCE THE SAME COULD NOT BE TREATED AS NON COMPLIANCE. 4. THAT THE ORDER PASSED BY THE CIT(A) PRIMA FACIE APPEARS TO BE 'BACK DATED' IN AS MUCH AS THE DATE OF PASSING OF ORDER IS 31.03.2017 WHEREAS IT WAS SENT BY PAST TO APPELLANT AF TER ABOUT MORE THAN THREE AND A HALF MONTHS ONLY ON 22.07.2017 AND RECEIVED BY APPELLANT ON 27.07.2017 WHICH IS SELF EXPLANATORY AND THEREFORE THE ORDER PASSED DESERVES TO BE SET ASIDE FOR THIS REASON ABOVE. 5. THAT THE ORDER PASSED BY THE ID. CIT(A ) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE WITHOUT GIVING PROPER OPPORTUNITY TO THE APPELLANT TO EXPLAIN THE CASE AND WITHOUT TAKING INTO CONSIDERATION THE SUBMISSIONS MADE BY THE APPELLANT IN THE STATEMENT OF FACTS AND, THEREFORE, THE SAME IS VOID AB - INITIO AND BAD IN LAW. THAT WITHOUT PREJUDICE: - 6(A). THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE FOLLOWING ADDITIONS MADE BY THE ASSESSING OFFICE TO THE INCOME OF THE APPELLANT BY TRE ATING THE PAYMENTS MADE THROUGH CREDIT CARDS AS UNEXPLAINED: I) RS. 2,76,000/ - PAYMENT THROUGH CITI BANK CREDIT CARD, II) RS. 3,60,000/ - PAYMENT THROUGH SBI CREDIT CARD, III) RS. 1,10,000/ - PAYMENT THROUGH SBI CREDIT CARD. 6(B). THAT THE ID. CIT(A) HAS FAILED TO APPRECIATE THAT THE PAYMENTS MADE THROUGH CREDIT CARDS WERE THROUGH BANKING CHANNELS AND IN THE COURSE OF CARRYING ON OF THE BUSINESS OF THE IT A NO.510/LKW/2017 PAGE 3 OF 6 APPELLANT AND, THEREFORE, THERE IS NO JUSTIFICATION IN TREATING THEM TO BE UNEXPLAINED. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER OF A SUM OF RS. 39,84,8567 - ON ACCOUNT OF LONG TERM CAPITAL GAIN. 8(A). THAT ON THE FACTS AND CIRCUMSTANCES O F THE CASE AS WELL AS IN LAW THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF A SUM OF RS. 52,92,000/ - MADE BY ASSESSING OFFICER IN RESPECT OF DEPOSIT IN THE CORPORATION BANK ACCOUNT OF THE APPELLANT AS UNEXPLAINED. 8(B). THE ID. CIT(A) HAS FAILED TO APPRECIATE THAT CORPORATION BANK ACCOUNT OF THE APPELLANT IS DULY INCORPORATED IN THE BOOKS OF ACCOUNT AND IS APPEARING IN THE BALANCE SHEET OF THE APPELLANT AND THE DEPOSITS MADE THEREIN WERE OUT OF REGULAR BUSINESS TRANSACTIONS AND, THEREFORE, THERE IS NO JUSTIFICATION IN CONFIRMING THE ADDITION MADE BY ASSESSING OFFICER AS UNEXPLAINED. 9. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY ID. ASSESSING OFFIC ER IS BY TREATING THE AMOUNT OF RS. 81,24,013/ - ON ACCOUNT OF SUNDRY CREDITORS TO BE IN THE NATURE OF INCOME TO BE FROM UNDISCLOSED SOURCES. 10. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIR MING THE ADDITION MADE BY THE ASSESSING OFFICER OF A SUM OF RS. 1,47,20,000/ - ON ACCOUNT OF UNSECURED LOANS AS INCOME FROM UNDISCLOSED SOURCES. 11. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE ID. CIT(A) IS NOT JUSTIFIED IN CON FIRMING THE ADDITION MADE BY ASSESSING OFFICER BY A SUM OF 85,22,580/ - REPRESENTING 10% OF THE PURCHASES MADE BY THE APPELLANT AS INCOME FROM UNDISCLOSED SOURCES. IT A NO.510/LKW/2017 PAGE 4 OF 6 12 THAT WITHOUT PREJUDICE THE ID. CIT(A) SHOULD HAVE APPRECIATED THAT THE ADDITION MADE BY THE ID. ASSESSING OFFICER OF ON ACCOUNT OF SUNDRY CREDITORS OF RS. 81,24,013/ - ALONGWITH ANOTHER ADDITION OF RS. 85,22,580/ - BY TREATING THE PURCHASES TO BE INCOME FROM UNDISCLOSED SOURCES TANTAMOUNTS TO DOUBLE ADDITION IN THE HANDS OF THE APPELLANT AND DESERVE TO BE DELETED. 13. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIRMING DISALLOW ONCE OF A SUM OF RS. 14,26,3807 - MADE BY ASSESSING OFFICER OUT OF SALARIES AND WAGES, OTHER EXPENSES A ND DEPRECIATION BEING 10% OF THE GROSS EXPENSES DEBITED UNDER THE RESPECTIVE HEADS. 14. THAT IN ANY VIEW OF THE MATTER THE ID. CIT(A) HAS FAILED TO APPRECIATE THAT THE APPELLANT'S BOOKS OF ACCOUNT WERE DULY AUDITED U/S 44AB OF THE INCOME TAX ACT AND, THEREFORE, THERE WAS NO JUSTIFICATION IN MAKING OF ANY ADHOC DISALLOWANCE/ADDITION. 15. THAT THE VARIOUS ADDITIONS/DISALLOWANCES MADE BY THE ID. ASSESSING OFFICER AND CONFIRMING BY CIT(A) ARE UNJUST AND UNCALLED FOR, ALTERNATIVELY HIGHLY EXCESSIVE. 16 . THAT THE ORDER PASSED BY THE ID. CIT(A) IS WITHOUT PROPER OPPORTUNITY AND BAD IN LAW. 17. THAT THE ORDER PASSED BY THE ID. CIT(A) IS AGAINST MERITS, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. 18. THAT THE APPELLANT CRAVES LEAVE TO ADD, AL TER, AMEND - OR WITHDRAW ANY OR ALL THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 2 . THE BRIEF FACTS OF THE CASE ARE THAT THE ORDER OF ASSESSMENT WAS PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 OF THE ACT FOR ASSESSMENT YEAR 2011 - 12 ON 23/3/201 4 ASSESSING THE INCOME OF THE ASSESSEE AT RS.4,92,28,500/ - IN PLACE OF RETURNED INCOME OF IT A NO.510/LKW/2017 PAGE 5 OF 6 RS.64,12,672/ - , AS THE ASSESSEE INSPITE OF BEING ALLOWED SUFFICIENT OPPORTUNITIES DID NOT FURNISH THE REQUIRED DETAILS BEFORE HIM. 3 . FURTHER, IN APPEAL BEFORE THE LD. C IT(A) ASSESSEE DID NOT APPEAR ON THE DATES OF HEARING FIXED BY HIM AND, THEREFORE, APPEAL OF THE ASSESSEE WAS DISMISSED. 4 . AT THE TIME OF HEARING BEFORE US , LD. A.R. OF THE ASSESSEE SUBMITTED THAT HE HAS ALL THE DETAILS AND INFORMATION TO SUPPORT HIS CASE AN D TO RENDER SUBSTANTIAL JUSTICE, ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE. 5 . THE LD. D.R. VEHEMENTLY OPPOSED THE PLEA OF THE LD. A.R. OF THE ASSESSEE ON THE GROUND THAT SUFFICIENT OPPORTUNITY WAS ALLOWED BY THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) AND THE ASSESSEE DID NOT CO - OPERATIVE WITH THEM. THEREFORE, THE PLEA OF THE LD. A.R. OF THE ASSESSEE FOR GRANTING ONE MORE OPPORTUNITY SHOULD NOT BE ACCEPTED. 6 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND T HE MATERIALS ON RECORD. IT IS NOT IN DISPUTE THAT ASSESSEE DID NOT FILE REQUIRED DETAILS AND EVIDENCES BEFORE THE ASSESSING OFFICER. ASSESSEE ALSO FAILED TO COMPLY WITH THE NOTICES OF THE LD. CIT(A). LD. A.R. OF THE ASSESSEE HAS MADE A STATEMENT AT BAR THAT THE ASSESSEE HAS ALL THE INFORMATION TO SUPPORT HIS CASE AND PRAYED FOR GRANTING ONE MORE OPPORTUNITY IN THE INTEREST OF JUSTICE. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT IN ORDER TO RENDER SUBSTANTIAL J USTICE, ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE ASSESSING OFFICER. HENCE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR MAKING IT A NO.510/LKW/2017 PAGE 6 OF 6 ASSESSMENT OF THE ASSESSEE AFRESH AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 7 . BEFORE PARTING WITH THIE ORDER , KEEPING IN VIEW THE CONDUCT OF THE ASSESSEE BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A), ASSESSEE IS DIRECTED TO DEPOSIT A COST OF RS.5,000/ - WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AND FILE COPY OF CHALLAN BEFORE THE TRIBUNAL AND BEFORE THE ASSESSING OFFICER. ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER SUO MOTO FOR FIXING THE DATE OF HEARING AND TO CO - OPERATE WITH HIM BY FILING ALL THE DETAILS AND EVIDENCES AS AND WHEN CALLED UPON BY HIM. WITH THESE DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09 / 10 / 201 8 . SD/ - SD/ - [PARTHA SARATHI CHAUDHURY] [ N.S. SAINI ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 9 TH OCTO BER , 201 8 JJ: 0810 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR