NAEEM QURESHI, THANE V. ITO WD 3(1), THANE

ITA 5247/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83510 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 14-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 21-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V R PATIL
• Assessee Lawyers: H N MOTIWALA
• Keywords: Salary income; Principle of natural justice

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI .., ! , ' , # BEFORE SHRI I.P.BANSAL, JM AND SHRI RAJENDRA, AM ITA NO.5247/MUM/2012 (A.Y.2008-09) SHRI NAEEM QURESHI, ROOM NO.402/403, SARITHA APT., GULAH PARK, AMRUT NAGAR, MUMBRA, THANE. PAN: AABPQ 0320L THE ITO, WARD -3(1), THANE. ( $% / // / APPELLANT) ' ' ' ' / VS. ( ()$%/ RESPONDENT) $% * + * + * + * + /APPELLANT BY : SHRI H.N.MOTIWALA ()$% * + * + * + * + /RESPONDENT BY :SHRI V.R.PATIL ' * ,-' / / / / DATE OF HEARING : 14.8.2014 ./0 * ,-' / DATE OF PRONOUNCEMENT : 14.08.2014 1 1 1 1 / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-I, THANE DATED 29/06/2012 FOR ASSESSMENT YEAR 2008-09. GROUNDS OF APPEAL READ AS UNDER: 1. THAT ASSESSEE RECEIVED COPY OF THE ASSESSMENT O RDER, NOTICE OF DEMAND AND TAX COMPUTATION FORM, NONE OF WHICH IS SIGNED BY ASSESS ING OFFICER HOWEVER OFFICERS STAMP HAS BEEN PUT ON ASSESSMENT ORDER, NOTICE OF DEMAND AND TAX COMPUTATION FORM. THEREFORE, IN THE ABSENCE OF SIGNATURE. IT CAN BE D EFINITELY SAID THAT NO ASSESSMENT ORDER WAS PASSED TILL 31 ST DECEMBER,2010 IN VIEW OF THE FOLLOWING JUDGMENT. (A) KAILASH DEVI & OTHERS VS. CIT, 219 ITR 214 (SC ) (B) KALYAN KUMAR RAI VS. CIT, 191 ITR 634 (SC) LD. CIT HAS NOT JUSTIFIED THAT ORDER & NOTICE OF DE MAND WAS PROPERLY SIGNED WITHOUT PROPER INQUIRY. 2. WITHOUT PREJUDICE TO GROUND NO.1, NO PROPER RE ASONABLE OPPORTUNITY WAS GRANTED TO ASSESSEE HENCE UNSIGNED ASSESSMENT ORDER PASSED BY ASSESSING OFFICER IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE, THE LD. CIT IS IN ERR OR TO JUSTIFY THE A.O. 3. WITHOUT PREJUDICE TO GROUND NO.1 ORDER IS PRIMA FACIE PREJUDICIAL SINCE ASSESSEE WAS EMPLOYEE DURING THE F.Y. 2007-08 RELEVANT TO AS STT. YEAR 2008-09 ON REMUNERATION OF RS.1.08 LACS P.A. DUE TO IGNORANCE OF ASSESSEE THE EMPLOYER HAS DEPOSITED CASH INTO THE BANK ACCOUNT OF ASSESSEE FOR INCURRING EXP ENSES ON HIS BEHALF AND CONFIRMATION ITA NO.5247/MUM/2012 (A.Y.2008-09) 2 OF THE SAME WAS SUBMITTED TO A.O DURING REMAND REP ORT. LD. AO HAS ACCEPTED THE SALARY INCOME AS WELL AS COMMISSION AS SHOWN BY THE ASSESSEE. HE HAS ALSO ACCEPTED ONE BANK ACCOUNT OF THE ASSESSEE BUT DID NOT ACCEPT THE OTHER BANK ACCOUNT SUBMITTED ON THE SAME LINES. 4. WITHOUT PREJUDICE TO GROUND NO.1, IT WILL BE HAR DSHIP ON ASSESSEE WHO IS GETTING INCOME OF RS.1.08 LACS AS SALARY TO PAY RS.1014030. 00 AS INCOME TAX WITHOUT CONSIDERING FACTS AND CIRCUMSTANCES OF ACT HENCE A DDITION OF RS.1802000.00 ON ACCOUNT OF UNEXPLAINED MONEY U/S.69 IS AGAINST THE LAW AND FACTS OF THE CASE HENCE DESERVE TO BE DELETED. LD. CIT(A) DECIDED THIS WIT HOUT CONSIDERING REMAND REPORT AND EVIDENCE FILED BY THE ASSESSEE. THEREFORE, THE AD DITION OF RS.1802000.00 IS AGAINST THE LAW AND FACTS OF THE CASE. 5. WITHOUT PREJUDICE TO GROUND NO.1, THAT UNEXPLAIN ED CASH CREDIT ADDED TO THE INCOME OF ASSESSEE RS.297000.00 DESERVE TO BE DELE TED IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE, BUT CIT CONFIRM THIS ADD ITION WITHOUT CONSIDERING THE EVIDENCE BY THE ASSESSEE. 2. 2. GROUND NO.1 WAS NOT PRESSED, THEREFORE, THE S AME IS DISMISSED AS BEING NOT PRESSED. 3. A PROPOS GROUND NO.2, IT IS THE CASE OF LD. AR T HAT ADDITIONS OF RS.18,02,000/- AND RS.2,97,000/- (SUBJECT MATTER OF GROUNDS OF APPEAL NO.3,4 & 5) HAVE WRONGLY BEEN SUSTAINED BY LD. CIT(A) ON THE BASIS OF REMAND REPORT SUBMITTED BY THE AO IN WHICH THE AO DID NOT GIVE THE ASSESSE E PROPER OPPORTUNITY OF HEARING AND SIMPLY SUGGESTED THE UPHOLDING OF ADDITION. HE SUBMITTED THAT COPY OF REMAND REPORT IS SUBMITTED AT PAGE 1 & 2 OF THE PAPER BOOK . REFERRING TO THE SAID REMAND REPORT IT WAS SUBMITTED BY HIM THAT ASSESSEE HAD PR ODUCED COPY OF LEDGER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M.D. EXPORTS AND THE FIGURES OF CASH DEPOSIT IN THE SAVING BANK ACCOUNT OF THE ASSESSEE ON THE RELEVAN T DATES WERE TALLYING WITH THE FIGURES REPORTED IN THE LEDGER ACCOUNT. LD. AR SUB MITTED THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS FOUND BY THE AO ADDITI ON SHOULD NOT HAVE BEEN MADE. LD. AR SUBMITTED THAT THE ADDITION HAS BEEN SUSTAI NED BY LD. CIT(A) RELYING UPON THE SAID REPORT IN WHICH THE ONLY GROUND ON WHICH T HE SUBMISSION OF THE ASSESSEE HAS BEEN REJECTED IS THAT ASSESSEE HAD SUBMITTED O NLY LEDGER ACCOUNT AND SINCE THE ENTRIES WERE MADE IN CASH AUTHENTICITY OF LEDGER AC COUNT COULD NOT BE RELIED UPON. HE SUBMITTED THAT IF SUCH WAS THE POSITION THEN AO MAY CALL FOR FURTHER INFORMATION FROM THE MD EXPORT AND TO DETERMINE GENUINENESS OF THE ENTRIES. SIMILARLY FOR THE OTHER AMOUNT OF RS.2,97,000/- IN THE NAME OF SALIM ANSARI EBRAHIM AND EBRAHIM BASIR KHAN THE ASSESSEE HAD SUBMITTED ADDRESS, PAN AND VOTER CARD AND DESPITE THE SAID FACT WITHOUT CALLING FOR FURTHER INFORMAT ION THE AO HAD SUGGESTED THE ITA NO.5247/MUM/2012 (A.Y.2008-09) 3 UPHOLDING OF THE ADDITION. FOR THE SAKE OF COMPLET ENESS THE REMAND REPORT SUBMITTED BY THE AO VIDE LETTER DATED 22/3/2012 IS REPRODUCED BELOW: OFFICE OF THE INCOME TAX OFFICER, WARD 3(1), THA NE 'VARDAAN', LOWER GROUND FLOOR, MIDC, WAGLE INDL. ES TATE, THANE --------- ----------------------------------------- ------------------------------------------- NO.THN/ ITO WD 3(1)/APPEAL/NQ/2011-12/ DATE:- 22/3/2012 TO THE COMMISSIONER OF INCOME TAX(APPEAL)-1 THANE (SUBMITTED THROUGH THE JT. CIT., RANGE-3, THANE) SIR. SUB.: APPEAL NO.366 OF 2010-11 IN THE CASE OF SHRI NAEEM QURESHI - A.Y. 2008-09 - REMAND REPORT - REG - KIND REFERENCE IS INVITED TO CIT(A)-I'S LETTER NO.T HN/CIT(A)- 1/366/REMAND/11- 12/319 DATED 16.1.2012 ON THE ABOVE SUBJECT. AS DES IRED, I AM SUBMITTING HEREWITH THE REMAND REPORT VIS-A-VIS THE FRESH EVIDENCE SUBM ITTED DURING THE APPELLATE PROCEEDINGS, 2 WITH REGARD TO THE ADDITION OF RS. 18,02,000/- B EING THE CASH DEPOSITS IN THE S. B. A/C OF THE ASSESSEE IN HDFC BANK. MULUND BRANCH BEARING A/C NO.0351001000003541, THE ASSESSEE WAS ASKED TO PROD UCE COPY OF THE CASH BOOK ALONG WITH A COPY OF BALANCE SHEET OF MDA EXPORTS F OR NECESSARY VERIFICATION ABOUT THE CASH WITHDRAWN BY MDA EXPORTS/M.D. FROZEN FOOD EXP ORTS PVT. LTD FROM THEIR BANK ACCOUNTS AND DEPOSITED IN THE S.B. ACCOUNT OF THE A SSESSEE ON VARIOUS DATED FROM 1.4.2007 TO 31. 3.2008. LETTER WAS ALSO ADDRESSED TO THE MANAGER, M.D. FROZEN FOOD EXPORTS PVT. LTD. DELHI. THE ASSESSEE HOWEVER, INST EAD OF PRODUCING A COPY OF CASH BOOK AS REQUESTED, ONLY SUBMITTED A, COPY OF LEDGER ACCOUNT OF THE ASSESSEE SHRI NAEEM QURESHI IN THE BOOKS OF MDA EXPORTS VIDE LETT ER DATED 9.3.2012 THROUGH REPRESENTATIVE. THE FIGURES OF CASH DEPOSITS IN THE S.B. ACCOUNT OF THE ASSESSEE ON THE RELEVANT DATES ARE TALLYING WITH THE FIGURES REPORT ED IN THE LEDGER ACCOUNT SO SUBMITTED, HOWEVER. SINCE THE AMOUNT DEPOSITED IN THE ASSESSEE 'S BANK A/C. IS IN CASH, IN THE ABSENCE OF CASH BOOK OF MDA EXPORTS, DELHI AND THE DEPOSIT SLIPS OF HAVING DEPOSITED CASH IN THE ASSESSEE'S S.B. A/C WITH HDFC BANK ON THE RELEVANT DATES, AUTHENTICITY OF ONLY LEDGER A/C. AS SUBMITTED CANNOT BE RELIED UPON IN VIEW OF THE ABOVE POSITION, I AM OF THE CONSIDERED OPINION THAT AN ADDITION MADE BY THE A. 0. OF AN AMOUNT OF RS 18,02,000/- IS JUSTIFIED. THIS POSITION MAY KINDLY BE CONSIDERED BY THE HON'BLE CIT(A). WITH REGARD TO TILE ADDITION OF RS. 2,97,000/- FROM THE TWO ALLEGED LOAN CREDITORS VIZ SHRI SALIM ANSARI (RS 1,50,000/-) AND SHRI IBRA HIM BASHIR KHAN (RS 1,47,000/- ) DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE HAD SUBMITTED, CONFIRMATION LETTERS SIMPLY IN ONE LINE STATING TH AT :- 'I SALEEM AANSARI/LABRAHIM BASHIR KHAN GIVEN TO MR. NAEEM QURESHI FRIENDLY LOAN OF RS. 1,50,000/-/ RS 1,47,000/- I HE REBY CONFIRM THE SAME ARE TRUE. ' ITA NO.5247/MUM/2012 (A.Y.2008-09) 4 NO ADDRESS, DATE OF LOANS AND MODE OF LOAN WAS MENT IONED. ASSESSMENT PARTICULARS WERE ALSO NOT GIVEN OF THE LOAN CREDITORS. ALONG WI TH THE APPEAL PAPERS FILED ON 15.2.2011 THE ONLY ADDITIONAL INFORMATION FURNISHE D IS ADDRESS, PAN CARD AND VOTER CARD OF BOTH THE CREDITORS. THIS, IT IS SEEN THAT T HE ALLEGED LOAN CREDITORS ARE NOT ASSESSED TO TAX. THE PARTICULARS SUCH AS MODE OF PA YMENT/DATE OF LOAN CLAIMED TO HAVE BEEN GIVEN ARE NOT FURNISHED AT ALL. IN VIEW OF THI S FACTUAL POSITION THE CREDITWORTHINESS OF THE ALLEGED LOAN CREDITORS IS NOT AT ALL PROVED IN THE ABSENCE OF THE ABOVE PARTICULARS. THE HON'BLE CIT(A) MAY CONSIDER THIS ISSUE ON MERIT S. 4. WITH REGARD TO THE ASSESSEE'S CONTENTION THAT T HE ASSESSMENT ORDER DEMAND NOTICE AND TAX COMPUTATION FORM ARE NOT SIGNED BY T HE ASSESSING OFFICER, IT IS SUBMITTED THAT THE RECORD SHOWS THAT ALL THE THREE I E ASSESSMENT ORDER, DEMAND NOTICE AND TAX CALCULATION FORM ARE DULY SIGNED AND STAMP ED. IT IS PRIMA FACIE CLEAR THAT THE ASSESSEE HAD FILED ALL THE THREE ABOVE ALONG WITH T HE APPEAL FORM (FORM NO,35) AND THEY APPEAR TO HAVE BEEN SIGNED AND STAMPED, WHICH MAY KINDLY BE PERUSED. SUBMITTED. 2.1 THUS, IT WAS SUBMITTED BY LD. AR THAT IN THE I NTEREST OF JUSTICE MATTER MAY BE RESTORED BACK TO THE FILE OF AO FOR RE-ADJUDICATION OF THE ADDITIONS AGITATED IN GROUND NO.3,4 & 5. LD. AR SUBMITTED THAT ASSESSEE IS READ Y TO PRODUCE THE CREDITORS FOR WHICH NECESSARY OPPORTUNITY WAS NOT GIVEN TO THE AS SESSEE. 3. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. AFTER DUE CONSIDERATION, CONSIDERING T HE FACTUAL ASPECT NARRATED BY LD. AR AND THE REMAND REPORT OF THE AO WHICH HAS ALREAD Y BEEN REPRODUCED ABOVE, WE ARE OF THE OPINION THAT IT WOULD MEET THE INTEREST OF JUSTICE IF THE MATTER IS RESTORED BACK TO THE FILE OF AO FOR RE-ADJUDICATION OF BOTH THE ADDITIONS AGITATED IN GROUND NO.3,4 & 5. THEREFORE, WE RESTORE THE ISSUE REGARD ING GROUNDS NO.3,4, & 5 TO THE FILE OF A.O FOR RE-ADJUDICATION THEREOF AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING AS WELL AS PLACING THE RELEVANT EVIDENCE TO SUPPORT THE CLAIM OF THE ASSESSEE. WE DIRECT ACCORDINGLY. ITA NO.5247/MUM/2012 (A.Y.2008-09) 5 5. IN THE RESULT, THE APPEAL IS CONSIDERED TO BE P ARTLY ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH AUG., 2014. 1 * ./0 2'3 14.08.2014 / * 9 SD/- SD/- (RAJENDRA) (I.P.BANSAL) ' ' ' ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 2' DATED : 14TH AUG. 2014. VM. 1 * (,: ; :0, 1 * (,: ; :0, 1 * (,: ; :0, 1 * (,: ; :0,/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. ()$% / THE RESPONDENT. 3. <() / THE CIT, MUMBAI. 4. < / CIT(A)-13, MUMBAI 5. :?9 (,' , , / DR, ITAT, MUMBAI 6. 9@ A / GUARD FILE. 1' 1' 1' 1' / BY ORDER, ):, (, //TRUE COPY// B BB B/ // /C C C C (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI