Nagendra Shrivastava, Gwalior V. Jurisdictional Assessing officer Ward 2(5) , Jabalpur

ITA 53/JAB/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9868 (ITAT-JABALPUR)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 12-12-2021
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Assessee Lawyers: MAHESH AGARWAL
• Section: 147; 143(3); 142(1)

Judgement Text

ITA No. 53/Jab/2021(AY 2012-13) Nagendra Shrivastava v. ITO 1 IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR (SMC) (through Virtual Hearing) BEFORE SH. SANJAY ARORA, HON'BLE ACCOUNTANT MEMBER ITA No.53/JAB/2021 Assessment Year: 2012-13 Nagendra Shrivastava, Gwalior (M.P.) [PAN: CTOPS 5067G] vs. Income Tax Officer Ward - 2(5), Jabalpur (Appellant) (Respondent) Appellant by Sh. Mahesh Agarwal, FCA Respondent by Sh. S.K. Halder, Sr.DR Date of hearing 19/01/2022 Date of pronouncement 21/01/2022 ORDER Per Sanjay Arora, AM This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (‘CIT(A)’ for short) dated 13/09/2021, dismissing the assessee’s appeal contesting his assessment under section 147 read with section 143(3) of the Income Tax Act, 1961 (‘the Act’ hereinafter) for the Assessment Year (AY) 2012-13 vide Order dated 25/10/2019. 2. At the outset, it was observed by the Bench that the appeal is delayed by 29 days. There is, however, a condonation petition on record, which states that though the papers for preparation and filing the appeal were given by the assessee to his counsel, CA Nitin Pahariya, Gwalior, in time, the latter could not see the same as they had landed in his spam folder. This is supported by an affidavit by Sh. Nitin ITA No. 53/Jab/2021(AY 2012-13) Nagendra Shrivastava v. ITO 2 Pahariya. The explanation is plausible and, accordingly, condoning the delay, the hearing in the matter was proceeded with. 3. The only issue raised in appeal is qua an addition for Rs. 12,01,500 in assessment on account of unexplained cash deposits in the assessee's bank accounts, being as under: a. Rs. 4,50,000 in SBI, Gwalior, on 29/6/2011 b. Rs. 6,80,000 in SBI, Gwalior, on 11/10/2011 c. Rs. 71,500 in HDFC Bank, Gwalior, on 03/3/2012 The assessee explained the same as the cash received by his father, Sh. Prakash Shrivastava, a joint account holder of the SBI account, who received the same from his brother (name not specified) against sale of ancestral land at their native village. Both the Assessing Officer (AO) and the ld. CIT(A) did not accept the assessee's explanation as the sale deed/s furnished to evidence the said sale/s was not legible. Aggrieved, the assessee is in second appeal. 4. It was, at the outset, submitted by the ld. counsel for the assessee, Mr. Mahesh Agrawal, that the assessment is bad in law as the proceedings stand concluded, and the assessment order passed, on 25/10/2019, even as the time period for the compliance of the notice u/s. 142(1) dated 24/10/2019, i.e., 28/10/2019 (at 2:49 PM), had not expired (PB pgs. 1-2). Further, why could not the assessee be called upon to furnish a legible copy of the sale deed in case the copy submitted appeared illegible to the assessing authority? He would then take the Bench through the paper-book containing copies of two sale deeds, dated 14/7/2010 and 14/10/2011, for Rs. 4,44,200 and 6,12,700 respectively, along with separately typed (on plain paper) copies thereof (PB pgs. 3-16), which mention the name of the assessee's father, stated to be Sh. Prakash, as one of the sellers, i.e., along with his (four) brothers and mother, all named therein. The same, he continued, clearly establishes the source of the impugned sums deposited cash in the assessee's (SBI) bank account. On being asked about the share of the assessee's father, Sh. Prakash, ITA No. 53/Jab/2021(AY 2012-13) Nagendra Shrivastava v. ITO 3 Mr. Agarwal would submit that in the absence of the same being expressly stated in the sale deed/s, it could only be regarded as an equal share, i.e., 1/6. The matter, accordingly, he continued, be remitted back to the file of the AO, which proposition was fairly not contested and, rather, agreed to by Sh. Halder, the ld. Sr. DR. 5. I have heard the parties and perused the material on record. 5.1 Without doubt, the material furnished by the assessee in support of his case having not been examined and verified by the assessing authority; in fact, even by the first appellate authority, the matter would necessarily require being restored back for the purpose. This is, however, extremely unfortunate as the assessee could have easily been asked to provide legible copies thereof to facilitate examination. This would have easily prevented litigation or, in any case, prolonging it. The folly was repeated at the first appellate stage, and this time the assessee was equally at fault as he could have, as he does before the Tribunal, furnished separately typed copies of the sale deeds, meeting thus the objection that had led to the non- consideration of his case on merits in the first instance. The assessee in fact did not furnish the sale deed dated 14/7/2010 (for Rs. 4.44 lacs) before the Assessing Officer (AO)(refer index to the paper-book). Why? And did so for the first time only before the first appellate authority, and which could not be without making out a case under rule 46A of the Income Tax Rules, 1962, i.e., for production of additional evidence, to which aspect there is surprisingly no reference in the impugned order. In short, the approach of both the parties to the matter has been most casual. Litigation is not a frivolous affair, and makes it incumbent on the tax payers as well as the Revenue authorities to accord it due diligence and care, being only and only toward upholding the rule of law, implicit to which is fairness and reasonableness, as otherwise it becomes a travesty of justice and an abuse of the process of law. The instant appeal, surely, cannot be, in the absence of the examination of the case on merits at any stage, be decided on merits - which would thus be for the first time by the Tribunal, and warrants remission. I am in agreement with Sh. Agarwal that this ought to be to the file of the assessing authority. I direct ITA No. 53/Jab/2021(AY 2012-13) Nagendra Shrivastava v. ITO 4 accordingly, setting aside the impugned addition. The assessee shall furnish all the relevant material, i.e., that he wishes to rely upon – which itself signifies, even as observed during hearing, legible copy thereof, besides fully cooperate in the ensuing proceedings. The AO shall, on his part, make the assessment in accordance with and following the due process of law, within the time provided thereby, and by issuing definite findings of fact – separately for each deposit; the matter being principally factual. The documents furnished lead to the query as to why would the other co- owners give their entire cash to one of them to be deposited in a bank account at a distant place – to which (account) they had neither any access nor claim to the sums deposited therein. Why should they, rather, hold the cash for so long? Bank accounts are ubiquitous and, besides, it is not shown nor contended that none of the co-owners, including the assessee’s father, had no bank account, much less at their native place. Have they all left the place, and where were they residing subsequent to the sale/s? Did they acquire any property – movable or immovable, thereafter? These and such like questions arise from the assessee’s explanation, which would require being addressed. The subsequent utilization of the deposit amount could also assume significance in this regard. These are of course apart from the aspect of the time lag attending the dates of the first sale and the first bank deposit, as well as a reconciliation of the dates qua the stated source of the second deposit. 5.2 I may next also meet the assessee's first contention, i.e., of the impugned assessment being invalid as it was finalized while the assessment proceedings were on and, further, without the benefit of the information called for vide notice u/s. 142(1) dated 24/10/2019. The material called for, as apparent from the annexure to the said notice, is the copy of the assessee's HDFC Bank account (for the relevant year) which, in view of the fact that the AO is in the know of the cash deposited by the assessee in his said account (not contended as joint with his father) on 03/3/2012, and which fact is not disputed, rather appears to be available with him. Nothing, thus, turns thereon; there being in fact no explanation by the assessee in its ITA No. 53/Jab/2021(AY 2012-13) Nagendra Shrivastava v. ITO 5 respect either before the AO or before the first appellate authority. No prejudice stands shown caused to the assessee thereby. The argument, therefore, fails. Before parting with this order, I may clarify that it is a open set-aside, and nothing stated or observed herein, even as it may raise pertinent issue/s to be addressed, may be construed as an expression of any opinion by the Tribunal. Also, the assessee is at liberty to produce and rely upon any material in support of his explanation/s or otherwise to advance his case before the assessing authority, irrespective of whether it was produced during the first round or not. 5.3 I decide accordingly. 6. In the result, the assessee’s appeal is allowed for statistical purposes. Order pronounced in the Open Court on January 21, 2022 Sd/- (Sanjay Arora) Accountant Member Dated: 21/01/2022 Copy of the Order forwarded to: 1. The Appellant: Shri Nagendra Shrivastava, C-106, Gole Ka Mandir, Krishna Nagar, Gwalior – 474 005, MP 2. The Respondent: Income Tax Officer Ward - 2(1), Jabalpur (at present) 3. The Pr. CIT-1, Jabalpur 4. The CIT(A), National Faceless Appeal Centre, Delhi 5. The Sr. DR, ITAT, Jabalpur 6. Guard File // True Copy //