Malvinder Singh, Kurukshetra V. ITO, Kurukshetra

ITA 527/CHANDI/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7689 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 23-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APUL JAISWAL
• Keywords: Corroborative evidences; Set aside
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B CHANDIGARH !, ' # $ , $ % & ' ( ) , *+ # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 527/CHD/2017 ASSESSMENT YEAR : 2011-12 SHRI MALWINDER SINGH, S/O SHRI GURNAM SINGH, M/S DASMESH AUTOMOBILES, PEHOWA, DISTT. KURUKSHETRA. VS THE ITO, WARD 1, KURUKSHETRA. PAN /TAN NO: BCSPS2898P APPELLANT RESPONDENT ! ASSESSEE BY : SHRI SUDHIR SEHGAL ' ! REVENUE BY : SHRI APUL JAISWAL, SR.DR # $ % DATE OF HEARING : 15.07.2019 &'() % D ATE OF PRONOUNCEMENT : 23.07.2019 *./ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 04.01.2017 OF CI T(A) KARNAL PERTAINING TO 2011-12 ASSESSMENT YEAR ON THE FOLLOW ING GROUNDS: 1. THAT LD. CIT (A) ERRED IN CONFIRMING THE ADDITION O F A.O MADE IN EX-PARTE ORDER U/S 144. 2. THAT LD. CIT (A) FAILED TO APPRECIATE THE TRUE FACT S OF THE CASE EXPLAINED BEFORE HIM AND IN WRITTEN SUBMISSIONS TOO. 3. THAT LD. CIT (A) ALSO FAILED TO APPRECIATE AND CONS IDER THAT CASH-DEPOSITS WERE EITHER OUT OF SALE- PROCEEDS OF TRACTORS, AGRICULTURE LOAN RAISED FROM BANKS AND OTHER GENERAL TRANSACTIONS. 4. THAT THE APPELLANT BE ALLOWED TO SUBMIT AN ADDITION AL EVIDENCE AT THIS STAGE AS APPELLANT COULD NOT SUBMIT BEFORE A.O OR CIT (A) LEVEL AS WAS INVOL VED IN A CRIMINAL PROCEEDINGS. 5. THAT THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. (EMPHASIS SUPPLIED) ITA 527/CHD/2017 A.Y. 2011-12 PAGE 2 OF 7 2. THE LD. AR INVITING ATTENTION TO THE RECORD SUBM ITTED THAT THE ASSESSMENT IN THE CASE OF THE ASSESSEE HAD BEEN CON CLUDED U/S 144 OF THE ACT BY AN ORDER DATED 04.03.2014 AS THE ASSESSEE FAILED TO PARTICIPATE IN THE PROCEEDINGS BEFORE THE AO. A CCORDINGLY, IN THESE CIRCUMSTANCES THE ASSESSEE FILED FRESH EVIDEN CES BEFORE THE CIT(A). THESE EVIDENCES, IT WAS SUBMITTED, WERE REF ERRED TO THE AO BY THE CIT(A) AND WITHOUT CONFRONTING THE REPORT, T HE CIT(A) BY MERELY RELYING UPON THE REPORT OF THE AO DISMISSED THE APPEAL OF THE ASSESSEE. IT WAS HIS SUBMISSION ADDRESSING THE IMPUGNED ORDER THAT IN CASE THE EVIDENCES WERE FOUND TO BE N OT SUFFICIENT OR COMPLETE, EITHER BY THE AO OR THE CIT(A) THEN THIS FACT SHOULD HAVE BEEN COMMUNICATED TO THE ASSESSEE. 2.1 ADDRESSING THE REASONS FOR THE NON-APPEARANCE B EFORE THE AO, COPY OF THE DECISION DATED 13.01.2015 OF THE ADDITIONAL SESSION JUDGE (EXCLUSIVE COURT FOR HEINOUS CRIMES A GAINST WOMEN) KURUKSHETRA WAS FILED. REFERRING TO THE SAID ORDER, IT WAS SUBMITTED THAT THE ASSESSEE HAD BEEN IMPLICATED IN A FALSE CASE INSTITUTED ON 13.10.2011/24.02.2014 AND HAD BE EN ACQUITTED SUBSEQUENTLY. THUS, IN THE FACTS OF THE PRESENT CA SE, IT WAS SUBMITTED THAT THE ASSESSEE WAS PREVENTED BY A SUFF ICIENT CAUSE FOR NON-PARTICIPATING BEFORE THE AO JUSTIFYING THE FILING OF FRESH EVIDENCES. REFERRING TO THE ORDER IT WAS SUBMITTED THAT THE ASSESSEE WAS ONE OF THE ACCUSED AND HIS NAME IS APP EARING AT SR.NO. 4, MALWINDER SINGH S/O SHRI GURNAM SINGH. ON A PERUSAL ITA 527/CHD/2017 A.Y. 2011-12 PAGE 3 OF 7 OF THE ORDER IT IS SEEN THAT A CRIMINAL CASE INSTIT UTED ON THE BASIS OF A DYING DECLARATION OF MS. DHANPATI IMPLICATING THE ASSESSEE AMONGST OTHERS FOR OFFENCES UNDER SECTIONS 148, 302 , 120-B, 109 AND 149 OF THE INDIAN PENAL CODE, 1860 WHO DIED OF BURN INJURIES ON THE NIGHT OF 25.06.2011 CLAIMING THAT SHE WAS SE T ABLAZE IN BROAD DAYLIGHT ON 24.06.2011 AT ABOUT 11 A.M. WHILE PLOUGHING A FIELD WHICH SHE HAD TAKEN ON LEASE FROM GRAM PANCHA YAT IN AN OPEN AUCTION ON 02.06.2011 . THE CASE WAS CLOSED AS IT WAS SEEN THAT ON 23.06.2011 PHYSICAL POSSESSION OF LAND WAS HANDED OVER TO HER AND NO UNTOWARD INCIDENT HAD HAPPENED. THE PROS ECUTION FAILED TO SHOW PREVIOUS ENIMITY AND LACK OF MOTIVE NOTICING THAT THE WITNESSES RELIED UPON HAD TURNED HOSTILE. RELYI NG ON THE ORDER OF ACQUITTAL, IT WAS SUBMITTED THAT THE ASSESSEE AD MITTEDLY REMAINED PRE-OCCUPIED AND NON-REPRESENTED BEFORE TH E AO. 2.2 INVITING ATTENTION TO THE IMPUGNED ORDER AS WEL L AS THE ASSESSMENT ORDER, IT WAS SUBMITTED THAT THE ASSESSE E HAS BEEN DESCRIBED AS MALWINDER SINGH S/O SHRI GURNAM SINGH, M/S DASHMESH AUTOMOBILES. THUS, IT WAS HIS SUBMISSION THAT THE ASSESSEE HAD A STATED BUSINESS WAS A FACT AVAILABLE TO THE AO AS WELL AS THE CIT(A). RELYING ON THE COPY OF THE NARR ATIONS OF THE CREDIT AND DEBIT ENTRIES MAINTAINED IN THE ICICI BA NK ACCOUNT FILED BEFORE THE CIT(A) AS FRESH EVIDENCES CONFRONT ED TO THE AO, IT WAS SUBMITTED THAT THE ASSESSEE BELIEVED THAT THESE NARRATIONS OF THE ENTRIES FULLY EXPLAINED THE CREDIT AND THE DEBI T ENTRIES. ON A ITA 527/CHD/2017 A.Y. 2011-12 PAGE 4 OF 7 PERUSAL OF THE SAME IT WAS SEEN THAT THESE WERE MER E NARRATIONS WITHOUT ANY SUPPORTING EVIDENCES AND THUS, TO THE E XTENT THAT THE EXPLANATION WAS NOT SUBSTANTIATED, WE FIND CANNOT B E FAULTED WITH. 2.3 THE LD. AR IN RESPONSE RE-ITERATED THAT HAD THIS FACT BEEN COMMUNICATED, THE ASSESSEE BEING IN A POSITION TO F ILE SUPPORTING DOCUMENTS WOULD HAVE FILED THEM. 2.4 ACCORDINGLY, IT WAS HIS PRAYER THAT THE ISSUE M AY BE REMANDED BACK. 2.5 WITHOUT PREJUDICE TO THE ABOVE ARGUMENTS, IT WA S ALSO SUBMITTED THAT IN THE FACTS OF THE PRESENT CASE, TH ERE IS NO CLEAR FINDING AS TO WHETHER THE EVIDENCES HAVE BEEN ADMIT TED OR NOT BY THE CIT(A) IS NOT CLEAR. 2.6 ADDRESSING THE PAST HISTORY OF THE ASSESSEE ON THE STATED ACTIVITY, ON QUERY IT WAS STATED THAT THE ASSESSEE HAS BEEN ENGAGED IN THIS LINE OF BUSINESS OF SELLING AGRICUL TURAL IMPLEMENTS AND OLD TRACTORS ETC. FOR THE LAST MANY YEARS, THE EXACT NUMBERS, IT WAS STATED, HE WAS NOT READILY IN A POSITION TO ADD RESS IMMEDIATELY, THE MATTER MAY BE ENQUIRED INTO BY THE TAX AUTHORITIES ON REMAND. 3. THE LD. SR.DR MR.JAISWAL, ON THE OTHER HAND ON A PERUSAL OF THE NARRATIONS OF THE CREDIT AND DEBIT ENTRIES IN T HE SPECIFIC SAVING BANK ACCOUNT MAINTAINED IN ICICI, PEHOWA SUBMITTED THAT MOST DEFINITELY THE EVIDENCE IS NEITHER SUFFICIENT NOR C OMPLETE. ITA 527/CHD/2017 A.Y. 2011-12 PAGE 5 OF 7 ACCORDINGLY, IT WAS SUBMITTED THAT THE CIT(A) ON FA CTS WAS FULLY JUSTIFIED IN COMING TO THE SAID CONCLUSION. 3.1 THE FACT THAT THIS SHORTCOMING POINTED OUT BY T HE AO WAS NOT CONFRONTED TO THE ASSESSEE WAS NOT DISPUTED BY HIM. PRAYER FOR REMAND BACK, ACCORDINGLY WAS NOT OBJECTED TO. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT ADMI TTEDLY AT THE ASSESSMENT STAGE, THE ASSESSEE WHO HAD RETURNED AN INCOME OF RS. 1,79,730/- WAS REQUIRED TO EXPLAIN THE DEPOSITS OF RS. 72,15,100/- MADE IN ICICI BANK, PEHOWA, KURUKSHETRA BY THE AO AFTER ISSUANCE OF STATUTORY NOTICES ETC. ON A FAILURE OF THE ASSESSEE TO PARTICIPATE IN THE PROCEEDINGS, ADDITION OF THE SAI D AMOUNT STOOD MADE BY THE AO BY AN ORDER U/S 144 OF THE ACT. 5. IN APPEAL, THE ASSESSEE EXPLAINED THAT ON ACCOUN T OF A CRIMINAL CASE AGAINST HIM, HE COULD NOT PARTICIPATE BEFORE AO. ACCORDINGLY, FRESH EVIDENCES WERE FILED TO EXPLAIN THE DEPOSITS MADE IN THE SPECIFIC BANK ACCOUNT. WE HAVE CONSIDER ED THE FRESH EVIDENCES BEFORE THE CIT(A) WHICH IS SHOWN TO CONSI ST OF MERE NARRATIONS OF THE ENTRIES IN THE SPECIFIC BANK ACCO UNT. ON A CONSIDERATION THEREOF, WE HAVE NO HESITATION IN HOL DING THAT WITHOUT THE BENEFIT OF SUPPORTING EVIDENCES THESE C ANNOT BE CONTEMPLATED TO BE A SUFFICIENT EXPLANATION ON FA CTS IN THE EYES OF LAW. ITA 527/CHD/2017 A.Y. 2011-12 PAGE 6 OF 7 6. THE SUBMISSIONS OF THE LD. SR.DR ARE HELD TO BE FULLY JUSTIFIED CONSIDERING THE PRAYER MADE BY THE LD. AR PRAYING F OR REMAND SO THAT SUPPORTING EVIDENCES CAN BE FILED, THE PARTIES WERE REQUIRED TO ADDRESS THEIR ARGUMENTS ESPECIALLY KEEPING IN MI ND THE FACT THAT THE STATED ACTIVITY OF DEALING IN SALE OF AGRI CULTURAL IMPLEMENTS AND OLD TRACTORS ETC. HAS BEEN STATED T O HAVE BEEN CARRIED OUT FOR MANY YEARS WHICH ASPECT HAS TO BE C ONSIDERED AS IN THE ORDERS OF THE TAX AUTHORITIES, THERE IS NO DISC USSION ON THE PAST HISTORY OF THE ASSESSEE. THE LD. SR.DR MADE A PRAYER THAT SINCE FRESH EVIDENCES NEED TO BE CONSIDERED BY THE AO, THE MATTER MAY BE REMANDED TO THE AO. MR. SEHGAL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE SHALL PLAC E FULL FACTS AND EVIDENCES BEFORE THE SAID AUTHORITY. ACCORDINGLY, A CCEPTING THE PRAYER IN THE INTERESTS OF SUBSTANTIAL JUSTICE AFTE R HEARING THE PARTIES, IT WAS DEEMED APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER BACK TO THE FILE OF THE AO WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW TAKING INTO CONSIDERATION T HE PAST HISTORY OF THE ASSESSEE FROM THE STATED ACTIVITY AND CONSID ERING THE EVIDENCES FILED. 7. IN THE EVENTUALITY THE EVIDENCES ARE FOUND TO BE INSUFFICIENT OR INCOMPLETE, THE AO SHALL DULY CONFRONT THE SAID SHORTCOMING AND THEREAFTER PASS AN ORDER IN ACCORDANCE WITH LAW . 8. WHILE REMANDING BACK, IT IS HOPED THAT THE ASSES SEE PARTICIPATES IN THE PROCEEDINGS FULLY AND FAIRLY AN D DOES NOT ABUSE ITA 527/CHD/2017 A.Y. 2011-12 PAGE 7 OF 7 THE TRUST REPOSED AS IN THE EVENTUALITY OF ABUSE OF THE TRUST, IT IS MADE CLEAR THAT THE LD. ASSESSING OFFICER SHALL BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF RECORD. SAID ORDER WAS PR ONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JULY,2019. SD/- SD/- ( % & ' ( ) ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) *+ #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER & % '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR