Prasenjit Panda, Khorda V. ITO, Ward- 61(5), New Delhi

ITA 56/CTK/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1695 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-06-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 21-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Unexplained cash credit; Business income; Salary income; Additional evidence; TDS; Set aside; FORM 26AS
• Section: 192; 194J; 194A; 13; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE SHRI DR. PRASENJIT PANDA, SURG CDR, INHS, NIVARINI NAVAL BASE CHILKA, INS CHILKA, KHORDA PAN/GIR NO. AIWPP 8574 G (APPELLANT REVENUE BY THIS IS AN APPEAL FILED BY THE ASSESSEE AGA CIT(A)- 20, DELHI DATED 29.11.2019 2. THE ASSESSEE HAS RAISED THE 1. FOR THAT, THE ORDER OF THE FORUM BELOW IS ARBITRARY, ILLEGAL, UNJUSTIFIED AND ERRONEOUS AND HAS BEEN PASSED ON IMPROPER APPLICATION OF MIND, BEING DEVOID OF MERIT AS SUCH DESERVES TO BE QUASHED IN LIMINI. 2. FOR THAT, THE ADDITION OF AN AMOUNT OF RS. 20, 92,666/ 20,89,650/ CASH CREDIT IS OUT & OUT ILLEGAL AS THE ASSESSEE IS A VICTIM OF FRAUDULENT ACTIVITY OF NOTORIOUS PROFESSIONALS THOSE WHO MI THE DATA BASE OF THE ASSESSEE FOR UNLAWFUL PECUNIARY BENEFITS DUPING THE STATE EXCHEQUER AS WELL AS THE ASSESSEE AND THE ADDITION IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK SMC BENCH, CUTTACK SHRI CHANDRA MOHAN GARG, JUDICIAL ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 PANDA, SURG CDR, INHS, NIVARINI , NAVAL BASE CHILKA, INS VS. DCIT, CIRCLE - 2(1) BHUBANESWAR. AIWPP 8574 G (APPELLANT ) .. ( RESPONDENT ASSESSEE BY : SHRI P.R.MOHANTY, AR REVENUE BY : SHRI SOVESH CHANDRA MOHANTY , ADDL. CIT ( DATE OF HEARING : 29/06/ 202 1 DATE OF PRONOUNCEMENT : 30/06 /20 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGA INST THE ORDER OF THE 20, DELHI DATED 29.11.2019 FOR THE ASSESSMENT YEAR THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. FOR THAT, THE ORDER OF THE FORUM BELOW IS ARBITRARY, ILLEGAL, UNJUSTIFIED AND ERRONEOUS AND HAS BEEN PASSED ON IMPROPER APPLICATION OF MIND, BEING DEVOID OF MERIT AS SUCH DESERVES TO BE QUASHED IN LIMINI. 2. FOR THAT, THE ADDITION OF AN AMOUNT OF RS. 20, 92,666/ 20,89,650/ -) + (RS. 3,016/- )] UNDER SECTION 68 TOWARDS UNEXPLAINED CASH CREDIT IS OUT & OUT ILLEGAL AS THE ASSESSEE IS A VICTIM OF FRAUDULENT ACTIVITY OF NOTORIOUS PROFESSIONALS THOSE WHO MI THE DATA BASE OF THE ASSESSEE FOR UNLAWFUL PECUNIARY BENEFITS DUPING THE STATE EXCHEQUER AS WELL AS THE ASSESSEE AND THE ADDITION P A G E 1 | 14 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER 2(1) RESPONDENT ) AR , ADDL. CIT ( DR) 1 /20 21 INST THE ORDER OF THE FOR THE ASSESSMENT YEAR 2011-2012. 1. FOR THAT, THE ORDER OF THE FORUM BELOW IS ARBITRARY, ILLEGAL, UNJUSTIFIED AND ERRONEOUS AND HAS BEEN PASSED ON IMPROPER APPLICATION OF MIND, BEING DEVOID OF MERIT AS SUCH DESERVES TO BE 2. FOR THAT, THE ADDITION OF AN AMOUNT OF RS. 20, 92,666/ - [(RS. )] UNDER SECTION 68 TOWARDS UNEXPLAINED CASH CREDIT IS OUT & OUT ILLEGAL AS THE ASSESSEE IS A VICTIM OF FRAUDULENT ACTIVITY OF NOTORIOUS PROFESSIONALS THOSE WHO MI S-UTILIZED THE DATA BASE OF THE ASSESSEE FOR UNLAWFUL PECUNIARY BENEFITS DUPING THE STATE EXCHEQUER AS WELL AS THE ASSESSEE AND THE ADDITION ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 2 | 14 DESERVES TO BE DELETED ON THE GROUND THAT, NEITHER THE SAID BANK ACCOUNT BELONGS TO THE ASSESSEE NOR THE ASSESSEE ANY WAY CONNECTED WITH THE TRANSACTION. 3. FOR THAT, THE ADDITION OF AN AMOUNT OF RS. 20, 92,666/-[(RS. 20,89,650/- ) + (RS. 3,016/-) UNDER SECTION 68 TOWARDS UNEXPLAINED CASH CREDIT DESERVES TO BE DELETED ON THE GROUND THAT, NOT ONLY IS UNJUSTIFIED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS CONTRARY TO LEGISLATIVE INTENTIONS BUT ALSO, UNWARRANTED AS PER THE STATUTORY PROVISIONS. 4. FOR THAT, THE ADDITION OF AN AMOUNT OF RS. 20, 92,666/-[(RS. 20,89,650/- ) + (RS. 3,016/-) UNDER SECTION 68 TOWARDS UNEXPLAINED CASH CREDIT DESERVES TO BE DELETED ON THE GROUND THAT, THE ASSESSING OFFICER HAS ERRED IN LAW IN MAKING ADDITION BEING CASH DEPOSIT IN THE BANK ACCOUNTS U/S 68 OF THE ACT DESPITE THE FACT THAT THE APPELLANT ADMITTEDLY DOES NOT MAINTAIN BOOKS OF ACCOUNT AND, THEREFORE, THE SAID CHARGING OF SECTION 68 CANNOT BE PRESSED TO SERVICE. 3. FACTS OF THE CASE AS ENUMERATED FROM THE CIT(A) ORDER IS THAT THE ASSESSEE IS AN INDIVIDUAL. DURING THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE HAS NOT FILED HIS RETURN OF INCOME. AS PER CIB REPORT AND 26AS DATA GENERATED FROM THE ITD SYSTEM, IT WAS NOTICED THAT DURING A SUM OF RS.20,89,650/- WAS CREDITED TO ASSESSEE U/S.194J AND 194A OF THE I.T.ACT, WHICH WERE NOT RETURNED TO TAX. SIMILARLY, INTEREST ON INCOME TAX REFUND OF RS.3016/- U/S.244A OF THE ACT CREDITED TO ASSESSEE WAS NOT OFFERED TO TAX. IN VIEW OF ABOVE, THE ASSESSING OFFICER OPINED THAT THE ASSESSEE HAS WILLFULLY NOT FILED HIS RETURN OF INCOME AND, THEREFORE, THE SOURCE OF INVESTMENT AND TAXABILITY REMAINS UNEXPLAINED. ACCORDINGLY, THE ASSESSING OFFICER WAS OF THE OPINION THAT THE ASSESSEE HAS ESCAPED INCOME OF RS.20,92,666/- TO TAX AND ISSUED NOTICE U/S.148 OF THE ACT TO THE ASSESSEE ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 3 | 14 FOR REOPENING THE ASSESSMENT U/S.147 OF THE ACT. SINCE THE ASSESSEE FAILED TO RESPONSE TO THE STATUTORY NOTICES ALONG WITH COPY OF REASONS RECORDED FOR REOPENING OF ASSESSMENT, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S.144/147 OF THE ACT ON 29.11.2018 AND ADDED RS.20,92,666 TO THE INCOME OF THE ASSESSEE U/S.68 OF THE ACT. 4. BEFORE THE LD CIT(A), IT WAS SUBMITTED IN THE STATEMENT OF FACT THAT SINCE THE TOTAL INCOME TAX LIABILITY HAS BEEN DISCHARGED BY HIM THROUGH TDS MADE BY THE EMPLOYER, HE WAS NOT REQUIRED TO FILE HIS INCOME TAX RETURN. IT WAS CLAIMED BY THE ASSESSEE THAT HE HAS APPLIED FOR PAN TRANSFER TO BHUBANESWAR AS HE IS WORKING THERE. HOWEVER, THE LD CIT(A) OBSERVED THAT THE ASSESSING OFFICER HAS TREATED THE ENTIRE RECEIPT OF THE ASSESSEE FOR WHICH TDS HAS BEEN MADE U/S.194J AND 192A AS UNEXPLAINED INCOME OF THE ASSESSEE. THE RECEIPT OF GROSS INCOME OUT OF PROFESSION AND SALARY ARE NOT UNEXPLAINED SINCE THE SAME WERE REFLECTED IN 26AS AND TDS HAVE BEEN DEDUCTED. ACCORDINGLY, THE LD CIT(A) DIRECTED THE AO TO TREAT AS INCOME 50% OF THE RECEIPTS WHERE TDS HAS BEEN DONE U/S.194J OF THE ACT IN CONGRUENCE TO THE PROVISIONS OF SECTION 44ADA OF THE ACT AND TO CALCULATE THE TAXABLE INCOME FROM SALARY AFTER GIVING STANDARD DEDUCTION ETC AS REFLECTED IN 26AS WHERE TDS HAS BEEN DONE U/S.192A OF THE ACT. 5. STILL AGGRIEVED, THE ASSESSEE HAS FILED APPEAL BEFORE THE TRIBUNAL. 6. THE ASSESSEE IN ITS WRITTEN SUBMISSIONS STATES AS UNDER: ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 4 | 14 1. THAT THE ASSESSEE I.E.,DR PRASANJIT PANDA IS WORKING AS A MEDICAL SPECIALIST IN INDIAN NAVY WEF. 21 ST JANUARY 2002 AT DIFFERENT NAVAL BASES. THE ASSESSEE COMPLETED MBBS IN SEPTEMBER 2000 (INCLUDING INTERNSHIP) FROM SCB MEDICAL COLLEGE & HOSPITAL CUTTACK, ODISHA. 2. THAT THE ASSESSEE HAD VISITED DELHI IN 2001 IN THE HOPE OF GETTING ADMITTED AT AIIMS, NEW DELHI FOR HIGHER COURSES ALONG WITH TAKING UP A JOB AS A DOCTOR IN SOME HOSPITAL THERE AND HAD APPLIED TO MULTIPLE PRIVATE/GOVT. HOSPITALS. HOWEVER, IN THE MEAN TIME HE WAS SELECTED FOR INDIAN ARMED FORCE MEDICAL SERVICE, HENCE HE ABANDONED THE PLAN TO WORK THERE AND RETURNED FROM DELHI TO JOIN INDIAN ARMED FORCE MEDICAL SERVICE AND AT NO POINT OF TIME HE WAS EMPLOYED OR ENGAGED BY ANY OF THE HOSPITALS AT DELHI OR GURGAON AND HE HAD NEVER OPENED ANY BANK ACCOUNT AT ANY BRANCH/BRANCHES AT DELHI. 3. THAT THE ASSESSEE RECEIVED AN ASSESSMENT ORDER PASSED U/S 144/147 OF THE I.T. ACT, 1961 FOR THE ASSESSMENT YEAR-2011-12 PASSED BY THE ITO, WARD-61(5), NEW DELHI ON DATED 29/11/2018 ALONG WITH THE DEMAND NOTICE FOR AN AMOUNT OF RS. 10,05,960/- WHILE POSTED AT INHS NIVARINI, INS CHILKA, KHORDA, ODISHA. 4. THAT FROM THE ASSESSMENT ORDER IT APPEARED THAT, ASSESSEE HAVE BEEN ASSESSED FOR ESCAPEMENT OF INCOME AND AS PER THE AOS ANALYSIS OF FORM 26AS REVEALS CREDIT OF AN AMOUNT OF RS. 20, 89,650/- FROM MOBILE CRECHES FOR WORKING MOTHER CHILDREN, PARA HEALTH CARE (P) LTD, PUSPANJALI MEDICARE (P) LTD (ALL ORGANIZATIONS BASED AT DELHI OR U.P AS PER TRASES) FOR WHICH TDS HAS BEEN DEDUCTED U/S 194A & 194J WITHOUT THE MENTION OF TDS U/S 192 FROM NAVAL PAY OFFICE MUMBAI. 5. THAT GOING THROUGH THE ASSESSMENT ORDER AND ANALYSIS OF DOCUMENTS REVEALED THAT NO RETURN HAS BEEN FILED FOR THE YEAR UNDER CONSIDERATION-A/Y-2011-12 AND NO RETURN WAS FILED AFTER THE ISSUANCE OF NOTICE U/S 148 DATED 31/03/2018 THROUGH E-MAIL ID [e-mail] AND FURTHER NOTICES AT DELHI ADDRESS NOT BELONGING TO THE ASSESSEE SUBSEQUENTLY FINAL SHOW CAUSE NOTICE WAS ISSUED THROUGH POST ON DATED 16/11/2018 AT- SH. PRASENJIT PANDA, SURG. CDR, NAVAL BASE, CHILKA, BARKUL, KHORDA, ORISSA-752037 FIXING THE DATE FOR HEARING TO 28/11/2018 & THE ASSESSMENT ORDER WAS PASSED ON 29/11/2018 EX-PARTY U/S 147/144 IGNORING SALARY INCOME DEPICTED BY THE FORM 26AS AND GIVING DUE CREDIT TO THE TDS THUS DEPOSITED AGAIN ALTHOUGH THE ASSESSEE NEVER FILED ANY RETURN EVEN FOR A/Y-2010-11 ONE RETURN FOR THE A/Y 2010-11 WAS ALSO FILED ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 5 | 14 DISCLOSING PROFESSIONAL BUSINESS INCOME AT DELHI, TO BE PRECISE AT FLAT NO-R-175,MANGOL PURI,DELHI-110083 ADDRESS WHICH ALSO DEPICTS CERTAIN MOBILE NUMBERS I.E., 9818444249 AND E-MAIL ADDRESS- [e-mail] & PNB CURRENT ACCOUNT NO- 302800100259570 WAS ALSO FOUND TO BE OPENED AT DELHI BEWILDERED WHEN WE CONTACTED IT WAS STATED BY THE CA NAMELY SANDEEP(MOBILE NO-9811141515) THAT HE IS THE CONCERNED CA WHO HAS FILED THE RETURN FOR DR. PRASENJIT PANDA WHO WAS RENDERING SERVICES AT DELHI & GOURUGRAM AREA. WE AGAIN CONTACTED AND TOLD HIM THAT HOW IT IS POSSIBLE THAT ASSESSEES PAN IS IN USE FOR A DOCTOR HE KNOWS AT DELHI RENDERING SERVICES THERE WHEN ASSESSEE IS SERVING AT MUMBAI UNDER THE INDIAN NAVY WITH OTHER UNEXPECTED COINCIDENCES SUCH AS FATHERS NAME DEGREES OF QUALIFICATION ETC. FOUND TO BE THE SAME. WE ALSO FOUND OUT FROM THE RETURN FORM FOR A/Y-2010-11 THAT ONE BANK ACCOUNT IN PNB (PUNJAB NATIONAL BANK) IS ALSO OPENED IN ASSESSEES NAME AT NEW DELHI. 6. THAT IN THE MEAN TIME AN APPEAL WAS FILED ONLINE BEFORE THE JURISDICTIONAL CIT(A),DELHI-20 AND NO COMPLIANCE WAS MADE TO HEARING NOTICES EXCEPT PRAYING BEFORE THE CIT TO KINDLY KEEP THE APPELLATE HEARING IN ABEYANCE TILL TRANSFER OF PAN WHICH FINALLY GOT MIGRATED TO DCIT, CIRCLE-2(1), BHUBANESWAR ON 13/01/2020 FROM ITO WARD-61(5), NEW DELHI. THE LD. CIT(A), DELHI-20 ON DATED 29/11/2019 PASSED THE ORDER EX-PARTY PARTLY ALLOWING THE APPEAL STATING THERE IN AS UNDER: 5.1.3 THE APPELLANT HAS FILED HIS APPEAL BEFORE THE UNDERSIGNED ON 02.01.2019. THOUGH THE APPELLANT HAS CLAIMED THAT HIS PAN IS UNDER THE PROCESS OF TRANSFER TILL NOW HE HAS NOT SUBMITTED ANY PROGRESS REGARDING THE SAME THOUGH 11 MONTHS HAVE BEEN ELAPSED. MOREOVER, IT IS A FACT THAT THE APPELLANT HAS NOT FILED HIS ITR FOR THE IMPUGNED YEAR. IN ANY CASE THE ASSESSING OFFICER HAS A RIGHT TO DETERMINE HIS INCOME U/S 147/143(3) OF THE ACT. THE ASSESSING OFFICER HAD TREATED THE ENTIRE RECEIPT OF THE APPELLANT FOR WHICH TDS HAS BEEN MADE U/S 194J AND 192A AS UNEXPLAINED INCOME OF THE APPELLANT. HOWEVER, THE RECEIPT OF GROSS INCOME OUT OF PROFESSION AND SALARY ARE NOT UNEXPLAINED SINCE THE SAME WERE REFLECTED IN THE 26AS AND TDS HAVE BEEN DONE. THE ASSESSING OFFICER IS THEREFORE DIRECTED TO TREAT AS INCOME 50% OF THE RECEIPTS WHERE TDS HAS BEEN DONE U/S 194J OF THE ACT IN CONGRUENCE TO THE PROVISIONS OF SEC.44ADA OF THE ACT AND TO CALCULATE THE TAXABLE INCOME FROM SALARY AFTER GIVING STANDARD DEDUCTION ETC. AS REFLECTED IN THE 26AS WHERE TDS HAS BEEN DONE U/S 192A OF THE ACT. THE ASSESSING OFFICER IS ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 6 | 14 ALSO DIRECTED TO GIVE CREDIT OF THE TDS MADE U/S 194J AND 192A OF THE ACT FROM THE GROSS INCOME FROM PROFESSION AND SALARY OF THE APPELLANT. 7. THAT AS A MATTER OF FACT AS EVIDENT THE ASSESSEE IS POSTED AT MUMBAI AS A DOCTOR UNDER THE INDIAN NAVY DURING THIS PERIOD UNDER CONSIDERATION AND NEVER BEEN EMPLOYED AT NEW DELHI OR UTTER PRADESH (NOIDA OR GURUGRAM) AND DRAWING SALARY FROM NAVAL PAY OFFICE MUMBAI AND THEREFORE, BEWILDERED AS HOW THE ASSESSEE CAN RENDER ANY PROFESSIONAL SERVICE TO THOSE ORGANIZATIONS FOR WHICH TDS U/S 194J HAS BEEN DEDUCTED & CREDITED TO ASSESSEES ACCOUNT AND AGAIN WHY NO PAYMENT IN THIS REGARD IS RECEIVED BY THE ASSESSEE. 8. THAT ON THE ADVICE OF THE CONCERNED CA AT DELHI MR. SANDEEP THE ASSESSEE WROTE TO THE ORGANIZATIONS ASKING FOR DETAILS THOSE WHO HAVE DEDUCTED TDS AND CREDITED INCOME TO ASSESSEES DUBIOUS BANK ACCOUNT AT DELHI FOR RENDERING SERVICES TO THEM STATEING THEIR IN AS UNDER: YOU ARE THEREFORE, HEREBY REQUESTED TO KINDLY PROVIDE ME THE DETAILS WITH DOCUMENTARY EVIDENCES SUCH AS CONTRACT/AGREEMENT/APPOINTMENT IF ANY SIGNED BETWEEN US UNDER WHICH I HAVE RENDERED THE REQUISITE SERVICES TO YOU AND KINDLY PROVIDE THE PAYMENT & TDS DETAILS AND THE BANK DETAILS WHERE THE SAME IS CREDITED ALSO PROVIDE THE DETAILS OF PROCESS OF SELECTION FOR APPOINTMENT WITH DOCUMENTS SUPPOSED TO BE AND MUST HAVE BEEN SUBMITTED & VERIFIED BY YOU AS PER WHICH I HAVE BEEN SELECTED AS A DOCTOR OR UNDER ANY OTHER CAPACITY TO RENDER PROFESSIONAL SERVICES TO YOU & WHAT KIND OF PROFESSIONAL SERVICES HAD BEEN RENDERED BY ME TO YOUR ORGANIZATION. BUT NO REPLY WAS RECEIVED EXCEPT FROM PUSPANJALI HOSPITAL PRIVATE LIMITED ON DATED 20/08/2020 WITHOUT ANY LETTER HEAD OR COMPANY SEAL OF AUTHENTICATION STATING AS UNDER: THIS IS TO CONFIRM THAT ONE DOCTOR UNDER NAME OF STYLE OF DR. PRASENJIT PANDA S/O SH. HARI SANKAR PANDA HAD WORKED AS CONSULTANTS WITH US FROM 02/3/08 TO 15/12/15. HE HAD SUBMITTED HIS PROFESSIONAL DEGREE/CERTIFICATES (SELF ATTESTED), COPY OF WHICH ARE BEING SENT TO YOU FOR YOUR PERUSAL. AS PER OUR INFORMATION, HE WAS ALSO WORKING WITH OTHER HOSPITALS IN GURGAON. BESIDES, AS PER INFORMATION AND RECORD AVAILABLE WITH US, SOME OF FURTHER INFORMATION ARE AS UNDER ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 7 | 14 THIS CONFIRMATION CONFIRMS THE CON ACT, THE CONFLUENCE & CONNIVANCE OF CROOKS WHERE THE DATA BASE OF THE ASSESSEE IS UTILIZED FOR UNLAWFUL PECUNIARY BENEFITS DUPING THE STATE EXCHANGER WHICH SMACK OF A LARGER CONSPIRACY WITH INVOLVEMENT OF MANY, NEEDS TO BE UNEARTHED/ UNCOVERED AS IT IS NOT POSSIBLE FOR A PERSON SERVING THE NATION UNDER THE INDIAN NAVY HAVING BRILLIANT ACADEMIC CREDENTIALS TO SIMULTANEOUSLY BE PRESENT AT MUMBAI & DELHI AT THE SAME TIME AND BEING IN THE NAVY SERVING ANY PRIVATE ORGANIZATIONS. 9. THAT THE ASSESSEE MEETS THE CHIEF COMMISSIONER, BHUBANESWAR, ODISHA AND APPRISED HIM THE MATTER AND FILED WRITTEN GRIEVANCES REQUESTING TO INVESTIGATE THE MATTER WHICH WAS NEVER ACTED UPON. 10. THAT IN VIEW OF THE ABOVE FACTS UNDER THE CIRCUMSTANCES THE ASSESSEE PRAY & REQUEST TO THE ESTEEMED BENCH OF ITAT, THE LAST FACT FINDING AUTHORITY TO ACCEPT THE DOCUMENTARY EVIDENCES GATHERED BY HIM AND TAKING INTO CONSIDERATION DIRECT THE JURISDICTIONAL ITO I.E., DCIT, CIRCLE-2(1), BHUBANESWAR WHO BLATANTLY REFUSED TO INVESTIGATE THE MATTER ON THE GROUND THAT NO ACTION UNDER THE I.T. ACT LIES WITH THE PRESENT JURISDICTIONAL ASSESSING OFFICER WHEN SPECIFICALLY THE ASSESSEE THROUGH HIS LEGAL REPRESENTATIVE HAD A MEETING WITH THE CHIEF COMMISSIONER OF I.T., BHUBANESWAR AND APPRISED THE MATTER REQUESTING FOR AN INVESTIGATION WHO IN TURN DIRECTED THE JURISDICTIONAL ASSESSING OFF TO LOOK INTO IT. 11. THAT THE ASSESSEE PRAY & REQUEST TO THE HONBLE ITAT TO KINDLY CONSIDER AND INITIATE BY SETTING ASIDE THE ASSESSMENT ORDER, DIRECTING THE JURISDICTIONAL ASSESSING OFFICER TO CONDUCT NECESSARY ENQUIRIES/ INVESTIGATION BY THE AUTHORITY THAT THE ASSESSEE PRAY & REQUEST TO THE HONBLE ITAT TO KINDLY CONSIDER AND INITIATE BY SETTING ASIDE THE ASSESSMENT ORDER, DIRECTING THE JURISDICTIONAL ASSESSING OFFICER TO CONDUCT NECESSARY ENQUIRIES/ INVESTIGATION BY THE AUTHORITY & POWER AVAILABLE UNDER THE CIVIL PROCEDURE CODE AS THE FACTS DEPICTS CONNIVANCE & CONFLUENCES OF UNSCRUPULOUS PARTIES WHERE ASSESSEE IS THE VICTIM OF FRAUDULENT ACTIVITIES OF NOTORIOUS PROFESSIONALS THOSE WHO MISUTILIZED ASSESSEES DATA BASE FOR UNLAWFUL PECUNIARY BENEFITS DUPING THE STATE EXCHANGER WHICH SMACK OF A LARGER CONSPIRACY WITH INVOLVEMENT OF MANY NEEDS TO BE UNEARTHED/ UNCOVERED FOR WHICH ACT OF YOUR KINDNESS THE ASSESSEE WILL REMAIN INDEBTED & FOREVER OBLIGED. ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 8 | 14 7. FURTHER, THE GIST OF SUBMISSION OF LD A.R. OF THE ASSESSEE AT THE TIME OF HEARING IS AS UNDER: I) THE ASSESSEE IS WORKING AS A DOCTOR IN INDIAN NAVY. II) AT NO POINT OF TIME, HE WAS WORKING IN THREE ORGANIZATIONS I.E. MOBILE CRENCHES FOR WORKING MOTHER CHILDREN, PARA HEALTH CARE PVT LTD., AND PUSPANJALI MEDICARE PVT LTD., FROM THE ORGANIZATION AMOUNT OF RS.20,89,650/- HAS BEEN SHOWN TO BE PAYMENT TO THE ASSESSEE. III) IT IS SUBMITTED THAT THE NOTICES ISSUED AT DELHI ADDRESS NOT BELONGING TO THE ASSESSEE. IV) THE LAST SHOW CAUSE NOTICE ISSUED ON 16.11.2018 FIXING THE HEARING ON 28.11.2018 AT SURG. CDR, NAVAL BASE, CHILKA, KHORDA ADDRESS BUT THE ASSESSMENT ORDER WAS PASSED ON 29.11.2018 EXPARTE. V) IT IS STATED THAT THE C.A. NAMELY, SANDEEP HAS FILED THE RETURN FOR DR. PRASENJIT PANDA, WHO WAS WORKING AT DELHI & GORUGRAM AREA IN THE SAME PAN OF THE ASSESSEE. VI) ONE BANK ACCOUNT IN THE NAME OF DR PRASENJIT PANDA WAS OPENED AT PNB, DELHI AND WAS DOING FRAUDULENT ACTIVITIES IN THE NAME OF THE ASSESSEE. VI) THE ASSESSEE IS A VICTIM OF A CON ACT, WHERE THE DATA BASE OF THE ASSESSEE IS UTILIZED FOR UNLAWFUL PECUNIARY BENEFITS DUPING THE STATE EXCHEQUER, WHICH SHOULD BE UNEARTHED. VII) EVEN ON ENQUIRY FROM THE C.A. BASED AT DELHI, IT IS TRANSPIRED THAT ONE DOCTOR UNDER THE NAME DR. PRASENJIT PANDA, S/O SJHRI ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 9 | 14 HARI SANKAR PANDA HAD WORKED AS CONSULTANTS FROM 2.3.2008 TO 15.12.2015. VIII) EVEN AT THE TIME OF FIRST APPELLATE PROCEEDINGS, IT WAS REQUESTED TO KEEP THE HEARING IN ABEYANCE AS THE ASSESSEE HAS REQUESTED FOR TRANSFER OF PAN FROM DELHI TO BHUBANESWAR ON JURISDICTIONAL GROUND. IX) THE LD CIT(A) WITHOUT CONSIDERING THE SAME HAS PASSED EXPARTE ORDER BY GIVING PART RELIEF. 8. LD A.R. ALSO FILED PAPER BOOK CONTAINING THE FOLLOWING DOCUMENTS: I) COPY OF FORM 26AS FOR A.Y. 2011-12 II) TABULAR COMPILATION OF DETAILS OF TRANSFER AND POSTING OF DR. PRASENJIT PANDA, THE ASSESSEE FROM COMMISSIONING TO NAVY AT VISAKHAPATANAM TILL TODAY. III) COPY OF DOCUMENTARY EVIDENCE OF TRANSFER AND POSTING. IV) COPY OF SCREEN SHOT OF THE MESSAGE BY THE ASSESSEE FORWARDED BY THE C.A. BASED AT DELHI TO THE A.R. OF THE ASSESSEE. 9. REFERRING TO THE WRITTEN SUBMISSION AND HIS ORAL SUBMISSION, LD A.R. PRAYED THAT THE MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH EXAMINATION AND INVESTIGATION OF THE MATTER AS THE ASSESSEE HAS BEEN SUBJECTED TO FRAUDULENT ACTIVITIES BY SOME MISCHIEVOUS PERSONS IN HIS NAME UNDER HIS PAN AND PASS A DENOVO ASSESSMENT. ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 10 | 14 19. REPLYING TO ABOVE, LD DR SUBMITTED THAT RULE 29 OF ITAT RULES CAN BE INVOKED IN THREE CONDITIONS I.E. (I) IF THE TRIBUNAL ITSELF ASKED THE ASSESSEE TO SUBMIT CERTAIN DOCUMENTS OR EVIDENCE, WHICH IS REQUIRED FOR PROPER ADJUDICATION OF THE APPEAL; (II) WHEN THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN FILING SUCH PAPERS BEFORE THE AUTHORITIES BELOW AND (III) WHEN THE AUTHORITIES BELOW I.E. AO AND LD CIT(A) DENIED TO ACCEPT ON RECORD CERTAIN RELEVANT DOCUMENTARY EVIDENCE WHICH WAS NECESSARY FOR PROPER ADJUDICATION OF THE ASSESSEE. HENCE, HE OPPOSED TO RESTORE THE MATTER TO THE FILE OF THE AO. 20. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD OF THE CASE. IN THIS CASE, THE ASSESSEE IS A DOCTOR SERVING IN DEFENSE OF INDIAN GOVERNMENT AT DIFFERENT NAVAL BASES. HE HAS NOT FILED HIS RETURN OF INCOME ALTHOUGH TDSS WERE DEDUCTED FROM HIS EMPLOYER. AS PER CIB REPORT AND 26AS DATA GENERATED FROM THE ITD SYSTEM, IT WAS NOTICED THAT DURING A SUM OF RS.20,89,650/- WAS CREDITED TO THE ACCOUNT OF THE ASSESSEE U/S.194J AND 194A OF THE I.T.ACT, WHICH WERE NOT RETURNED TO TAX. SIMILARLY, INTEREST ON INCOME TAX REFUND OF RS.3016/- U/S.244A OF THE ACT CREDITED TO ASSESSEE WAS NOT OFFERED TO TAX. IN VIEW OF ABOVE, THE ASSESSING OFFICER OPINED THAT THE ASSESSEE HAS WILLFULLY NOT FILED HIS RETURN OF INCOME AND, THEREFORE, THE SOURCE OF INVESTMENT AND TAXABILITY REMAINS UNEXPLAINED AND THE SAME AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE U/S.68 OF THE ACT. ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 11 | 14 21. ON PERUSAL OF ASSESSMENT ORDER, IT IS OBSERVED THAT THE NOTICES WERE NOT SERVED ON THE ASSESSEE AS BECAUSE HE WAS POSTED AT DIFFERENT PLACES OF THE NAVAL BASE. HOWEVER, WHEN THE LAST NOTICE WAS ISSUED TO THE ASSESSEE FIXING THE HEARING ON 28.11.2018 BUT THE ASSESSMENT ORDER WAS PASSED ON 29.11.2018 EXPARTE. HENCE, THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN PRODUCING THE EVIDENCE IN HIS FAVOUR. THE LD CIT(A) HAS ALSO PASSED ORDER EXPARTE. IT WAS ALSO TRANSPIRED THAT UNDER THE SAME PAN, TRANSACTION WAS DONE AT DELHI PNB BANK IN THE NAME THE ASSESSEE. IT IS STATED BY LD A.R. OF THE ASSESSEE THAT ONE FRAUDULENT PERSON IN THE NAME OF THE ASSESSEE UNDER HIS PAN HAS TRANSACTION AS HE HAS NEVER SERVED IN THE ORGANIZATION FROM WHERE THE AMOUNT HAS BEEN CREDITED. HE IS A DOCTOR IN PROFESSION WORKING IN INDIAN NAVY AND, THEREFORE, IT IS QUITE IMPOSSIBLE TO SERVE IN ANOTHER ORGANIZATIONS DURING THE SAID PERIOD. THE LD A.R. HAS NARRATED THE TOTAL FACTS IN HIS WRITTEN SUBMISSIONS AND REQUESTED FOR PROPER EXAMINATION AND VERIFICATION OF THE MATTER. HOWEVER, LD D.R. HAS OBJECTED TO THE SUBMISSIONS OF LD A.R. OF THE ASSESSEE BY CITING RULE 29 OF ITAT RULES. RULE 29 OF THE RULES READS AS UNDER: THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE A A DDITIONAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFORE THE TRIBUNAL, BUT IF THE TRIBUNAL REQUIRES ANY DOCUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED OR ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR IF THE INCOME-TAX AUTHORITIES HAVE DECIDED THE CASE ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 12 | 14 WITHOUT GIVING SUFFICIENT OPPORTUNITIES TO THE ASSESSEE TO ADDUCE EVIDENCE EITHER ON POINTS SPECIFIED BY THEM OR NOT SPECIFIED BY THEM, THE TRIBUNAL, FOR REASONS TO BE RECORDED, IF ANY, ALLOW SUCH DOCUMENT TO BE PRODUCED OR WITNESS TO BE EXAMINED OR AFFIDAVIT TO BE FILED OR MAY ALLOW SUCH EVIDENCE TO BE ADDUCED RULE 29 OF THE RULES READS AS UNDER: THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE A A DDITIONAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFORE THE TRIBUNAL, BUT IF THE TRIBUNAL REQUIRES ANY DOCUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED OR ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR IF THE INCOME-TAX AUTHORITIES HAVE DECIDED THE CASE WITHOUT GIVING SUFFICIENT OPPORTUNITIES TO THE ASSESSEE TO ADDUCE EVIDENCE EITHER ON POINTS SPECIFIED BY THEM OR NOT SPECIFIED BY THEM, THE TRIBUNAL, FOR REASONS TO BE RECORDED, IF ANY, ALLOW SUCH DOCUMENT TO BE PRODUCED OR WITNESS TO BE EXAMINED OR AFFIDAVIT TO BE FILED OR MAY ALLOW SUCH EVIDENCE TO BE ADDUCED IT IS CLEAR THAT SUCH IS NOT THE SITUATION AT HAND. RULE 29, IN GENERAL, FORBIDS THE PARTIES TO THE APPEAL FROM PRODUCING ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFORE THE TRIBUNAL. HOWEVER, IF THE TRIBUNAL REQUIRES ANY DOCUMENT TO BE PRODUCED TO ENABLE IT TO PASS ORDERS OR FOR ANY SUBSTANTIAL CAUSE, IT MAY ALLOW SUCH DOCUMENT TO BE PRODUCED FOR THE REASONS TO BE RECORDED AND ALLOW SUCH EVIDENCE TO BE ADDUCED. IN THIS CASE, THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE EITHER BEFORE THE AO OR BEFORE THE LD CIT(A). IT IS THE CONTENTION OF LD A.R. OF THE ASSESSEE THAT IN THE NAME OF THE ASSESSEE, ONE PERSON HAS DONE FRAUDULENT ACTIVITIES AND THE ASSESSEE IS UNNECESSARY SUFFERING FROM THAT ACTION, ALTHOUGH HE IS A RESPECTABLE PERSON WORKING IN INDIAN NAVY. THE WRITTEN SUBMISSION FILED ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 13 | 14 BY THE ASSESSEE IS SELF-EXPLANATORY, WHICH IS REPRODUCED IN THE BODY OF THIS ORDER. IN VIEW OF ABOVE, I DEEM IT FIT AND PROPER TO SET ASIDE THE CASE, THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE EITHER BEFORE THE AO OR BEFORE THE LD CIT(A). IT IS THE CONTENTION OF LD A.R. OF THE ASSESSEE THAT IN THE NAME OF THE ASSESSEE, ONE PERSON HAS DONE FRAUDULENT ACTIVITIES AND THE ASSESSEE IS UNNECESSARY SUFFERING FROM THAT ACTION, ALTHOUGH HE IS A RESPECTABLE PERSON WORKING IN INDIAN NAVY. THE WRITTEN SUBMISSION FILED BY THE ASSESSEE IS SELF-EXPLANATORY, WHICH IS REPRODUCED IN THE BODY OF THIS ORDER. IN VIEW OF ABOVE, I DEEM IT FIT AND PROPER TO SET ASIDE THE MATTER AND RESTORE THE SAME TO THE FILE OF THE AO FOR DENOVO ASSESSMENT. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE DOCUMENTS/EVIDENCE FURNISHED BY THE ASSESSEE IN PAPER BOOK AND THE CONTENTION OF THE ASSESSEE THOROUGHLY AND PASS THE ASSESSMENT DENOVO. THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE EVIDENCES NOW FILED BEFORE THE TRIBUNAL, AND ALSO IF WISHES ANY OTHER DOCUMENTS /EVIDENCE TO BE FURNISHED BEFORE THE AO AT THE TIME OF DENOVO ASSESSMENT. 23. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 30 /06/2021. SD/- (CHANDRA MOHAN GARG) JUDICIAL MEMBER ITA NO.56/CTK/2020 ASSESSMENT YEAR : 2011-2012 P A G E 14 | 14 CUTTACK; DATED 300/06/2021 B.K.PARIDA, SPS (OS) COPY OF THE ORDER FORWARDED TO : BY ORDER SR.PVT.SECRETARY ITAT, CUTTACK 1. THE APPELLANT : DR. PRASENJIT PANDA, SURG CDR, INHS, NIVARINI, NAVAL BASE CHILKA, INS CHILKA, KHORDA 2. THE RESPONDENT. DCIT, CIRCLE -2(1) BHUBANESWAR 3. THE CIT(A),DELHI-20 4. PR.CIT-, 21, DELHI 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//