HITESH KOOLWAL, Jaipur V. ITO, Jaipur

ITA 526/JPR/2014

• Counselvise Citation: 52623114 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 28-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Assessee Lawyers: C M BATWARA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 526/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI HITESH KOOLWAL KOOLWAL BHAWAN, WARD 10,BHUKHMARIYON KA MOHALLA, CHOMU, DISTT. JAIPUR CUKE VS. THE ITO WARD- 2(4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AJEPK 3541 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI C.M. BATWARA, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT -DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15/10/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /11/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A)-I, JAIPUR DATED 05-05-2014 FOR THE ASSESSMEN T YEAR 2008-09 WHEREIN THE EFFECTIVE GROUNDS RAISED BY THE ASSESS EE ARE AS UNDER:- (I) THAT THE LD. CIT(A) JAIPUR ERRED IN CONFIRMING THE ADDITIONS OF RS. 2,11,000/- ON THE BASIS OF ADDITIONAL EVIDENCE I.E. CONFIRMATORY LETTER OF CAS H CREDITORS RS. 46,000/- SUBMITTED BEFORE HIM WHICH I S NOT ACCEPTED U/S 46A OF I.T. RULES BEING VALID REAS ONS HAS NOT GIVEN FOR THE EVIDENCE COULD NOT PRODUCE BEFORE AO WHILE THE ASSESSEE ALREADY SUBMITTED BEFO RE AO FOR RS. 1,65,000/- ITA NO. 526/JP/2014 SHRI HITESH KOOLWAL VS ITO, WARD- 2(4), JAIPUR . 2 (II) THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITIONS OF RS. 2,11,000/- IN INCOME WITHOUT ANY ENQUIRY AND AGAINST PRINCIPLE OF NATURAL JUSTICE TO PROVIDE OPPORTUNITY TO THE ASSESSEE TO DEFECT HIMSE LF. 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED HIS RETURN OF INCOME ON 30-07-2008 DECLARING INCOME OF RS. 1,52,8 80/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO FOUND THAT ASSESSEE'S BANK ACCOUNT REVEALS THE CASH DEPOSIT OF RS. 2,11,500/-. THE ASSESSEE WAS CALLED FOR THE EXPLANATION BY THE AO FOR WHICH THE ASSESSEE FAILED TO DO SO. THEREFORE, THE ADDITION WAS MADE BY THE AO BY F OLLOWING OBSERVATIONS. LOOKING TO THE ABOVE CASH DEPOSITED IN THE BANK ACCOUNT THE ASSESSEE WAS REQUIRED TO FURNISH THE DE TAILS/ DOCUMENTS IN SUPPORT OF SOURCE OF CASH DEPOSITED IN HIS BANK ACCOUNT. THE ASSESSEE HAS FURNISHED NO DETAIL/ DOCU MENT IN SUPPORT OF THE SOURCE OF CASH DEPOSIT OF RS. 211500 /- IN HIS BANK ACCOUNT. THEREFORE, THE SAME IS TREATED AS UNA CCOUNTED CASH DEPOSIT IN THE BANK ACCOUNT EARNED FROM UNDISC LOSED SOURCES. ACCORDINGLY, ADDITION OF RS. 211500/- ON A CCOUNT OF UNACCOUNTED CASH DEPOSITED IN THE BANK ACCOUNT IS H EREBY MADE TO THE TOTAL INCOME OF THE ASSESSEE. 2.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE BY FOLLOWI NG OBSERVATIONS. NOTICE U/S WAS ISSUED ON 24-09-2012. HOWEVER, NOBODY APPEARED IN COMPLIANCE TO THE SAID NOTICE. ANOTHER NOTICE WAS ISSUED ON 15-01-2013 IN RESPONSE TO WHICH A REQUEST FOR ADJOURNMENT WAS ITA NO. 526/JP/2014 SHRI HITESH KOOLWAL VS ITO, WARD- 2(4), JAIPUR . 3 RECEIVED AND THE CASE WAS ADJOURNED FOR 5-02-2013. ON THAT DATE A REQUEST FOR ADJOURNMENT WAS RECEIVED . THE CASE WAS FIXED FOR 16-05-2013 VIDE NOTICE DATED 8-05-2013. HOWEVER, THIS NOTICE ALSO REMAINED UNCOMPLIED WITH. ANOTHER NOTICE WAS ISSUED ON 16-07 - 2013 WITH DIRECTIONS THAT NO FURTHER ADJOURNMENTS SHALL BE GIVEN. HOWEVER, NOBODY APPEARED ON THAT DATE. IN ORDER TO GIVER A FAIR CHANCE OF HEARING, L AST OPPORTUNITY AS GIVEN VIDE NOTICE DATED 2-04-2014. O N THE DATE OF HEARING I.E. 24-04-2014 AGAIN A REQUEST FOR ADJOURNMENT WAS RECEIVED . THIS TIME ADJOURNMENT WAS REFUSED. THE APPEAL IS, THEREFORE, BEING DECIDE D ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE APPELLANT HAD FILED A WRITTEN SUBMISSION ON 25-04- 2014 I.E. BEFORE THE ORDER HAS BEEN PASSED WHICH IS ALSO BEING TAKEN INTO CONSIDERATION WHILE PASSING T HE ORDER. THE APPELLANT HAS RAISED FOUR GROUNDS OF APPEAL. 3. GROUNDS NO. 1 AND & 4 ARE GENERAL IN NATURE AND THEREFORE, DO NOT REQUIRE ANY ADJUDICATI ON. 4. GROUND NO. 2 & 3 CHALLENGE THE ADDITION OF RS. 2,11,500/- DEPOSITED IN CASH IN THE APPELLAN TS BANK ACCOUNT. IN THE WRITTEN SUBMISSION FILE DON 25 - 04-2014, IT IS STATED THAT THE AMOUNT WAS DEPOSITED IN THE BANK ACCOUNT FOR PAYMENT OF SHARE LOSS TRANSACTION. THE APPELLANT HAS FURTHER STATED THAT HE COULD NOT FURNISH THE DETAILS/ CONFIRMATORY LETTERS OF CASH CREDITORS OF RS. 1,43,500/- AND FOR RS. 46,000 /- AS NO OPPORTUNITY WAS PROVIDED BY THE AO. IT IS ALS O STATED THAT THE BALANCE AMOUNT WAS RECEIVED FROM HI S GRANDFATHER AND FATHER. IT IS CONTENDED THAT THE AO HAD NOT GIVEN SUFFICIENT OPPORTUNITY TO FURNISH THE SE DETAILS AND NO SPECIFIC QUERY REGARDING THE CASH DEPOSIT WAS RAISED. IT IS ALSO ARGUED THAT THE AO H AS ADMITTED THAT DETAILS WERE FILED BEFORE HIM, THEREF ORE, THE ADDITION FOR NOT FURNISHING CONFIRMATIVE LETTER WAS CORRECT. ITA NO. 526/JP/2014 SHRI HITESH KOOLWAL VS ITO, WARD- 2(4), JAIPUR . 4 4.1 A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THE APPELLANT WAS GIVEN DUE OPPORTUNITY TO EXPLAIN THE CASH DEPOSITED IN THE BANK ACCOUNT. HOWEVER, HE FAILED TO FURNISH ANY DETAILS BEFORE TH E AO. THE APPELLANT HAS NOT GIVEN ANY VALID REASON AS TO WHY THE NECESSARY EVIDENCES COULD NOT BE PRODUCE D BEFORE THE AO. HENCE, THE EVIDENCES FURNISHED AT TH E APPELLATE STAGE BE ADMITTED. IT COULD NOT BE SAID T HAT NO OPPORTUNITY WAS GIVEN BY THE AO FOR FURNISHING DETAILS/ CONFIRMATIONS. IN FACT, THE A.R. OF THE APPELLANT HAD APPEARED BEFORE THE AO BUT NECESSARY EXPLANATION / EVIDENCES WERE NOT FURNISHED. THE APPELLANT HAS NOT BEEN ABLE TO SHOW THAT HIS CASE I S COVERED UNDER THE PROVISIONS OF RULE 46A. HENCE, TH E ADDITIONAL EVIDENCES CANNOT BE ADMITTED. SINCE THE ADDITIONAL EVIDENCES HAVE NOT BEEN ADMITTED, THE DEPOSIT REMAINS UNEXPLAINED. THE ADDITIONAL MADE BY THE AO IS, ACCORDINGLY, CONFIRMED. 2.3 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ASSESSEE FILED THE REMAINING CONFIRMATIONS BEFORE THE LD. CIT(A) WHICH WERE NOT FILED BEFORE THE AO. THEREFORE, IN THE INTEREST OF JUSTIC E, THE SAME SHOULD HAVE BEEN ADMITTED UNDER RULE 46A OF INCOME-TAX RULE. TH E DENIAL THEREOF AMOUNTS TO NOT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, THE ADDITION CONFIRMED BY THE LD. CIT(A) SHOULD BE DELETED. 2.4 THE LD. DR ON THE OTHER HAND VEHEMENTLY CONTEND S THAT THE ASSESSEE WAS NON-COOPERATIVE BEFORE THE AO AND DID NOT APPEAR BEFORE THE LD. CIT(A). ONLY WRITTEN SUBMISSIONS WERE FILED . THE LD. CIT(A) HAS GIVEN A FINDING THAT THE ASSESSEE FAILED TO DEMONST RATE AS TO HOW THE ITA NO. 526/JP/2014 SHRI HITESH KOOLWAL VS ITO, WARD- 2(4), JAIPUR . 5 APPLICATION FILED BY THE ASSESSEE FOR ADDITIONAL E VIDENCE IS COVERED UNDER RULE 46 OF INCOME TAX RULES. THUS THE ASSESSEE CHOS E NOT TO FILE ANY EXPLANATION BEFORE THE AO AND DID NOT APPEAR BEFORE THE LD. CIT(A) AND FURTHER THE ASSESSEE DID NOT GIVE ADEQUATE REASONS FOR STATUTORY PROVISIONS OF RULE 46A FOR ADMISSION OF ADDITIONAL EVIDENCE. B EFORE, ITAT THE ASSESSEE HAS NOT GIVEN ANY CONVINCING REASON AS TO WHY NO EXPLANATION WAS GIVEN BEFORE THE LD. CIT(A). THEREFORE, THE ORD ER OF THE LD. CIT(A) IS JUSTIFIED. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND MERIT IN THE ARGUMENTS OF THE LD. DR THAT THE ASSESSEE WAS NON-COOPERATIVE BEFORE THE AO WHICH IS MENTIONED IN THE OBSERVATIONS REPRODUCED ABOVE. SINCE NO CONVINCING REASONS HAVE BEEN ADVANCED TO CONTROVERT THE REJECTION OF ADDITIONAL EVIDENCE BY THE LD. CIT(A), THIS PLEA OF THE ASSESSEE CANNOT BE ENTERTA INED. BESIDES, THE ASSESSEE HAS FAILED TO EXPLAIN THE CASH DEPOSIT IN THE BANK ACCOUNT FOR PAYMENT OF SHARE LOSS TRANSACTIONS. SINCE THE ASSES SEE HAS FAILED TO DISCHARGE HIS BURDEN AS TO CASH DEPOSIT IN THE BANK ACCOUNT, THE LD. CIT(A) HAS GIVEN PROPER REASONS ON MERITS FOR UPHOL DING THE ADDITION MADE BY THE AO. IN VIEW THEREOF, I FIND NO INFIRMIT Y IN THE ORDER OF THE LD. CIT(A) WHICH IS UPHELD. THUS THE APPEAL OF THE ASSE SSEE IS DISMISSED. ITA NO. 526/JP/2014 SHRI HITESH KOOLWAL VS ITO, WARD- 2(4), JAIPUR . 6 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /11/201 5 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13 /11/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI HITESH KOOLWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2 (4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 526/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR