AZAD HUSSAIN, Jaipur V. ITO, Jaipur

ITA 560/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99491 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Assessee Lawyers: SADAF RAIES
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE:SHRI T.R. MEENA,AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO.560/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SHRI AZAD HUSSAIN C-63, THATHAR COLONY NEAR ANAND PUBLIC SCHOOL AMER, JAIPUR CUKE VS. THE ITO WARD- 7 (3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABEPH 4389 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SADAF RAIES, CA JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA , JCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30/10/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20 /11/2015 VKNS'K@ ORDER PER T.R. MEENA, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-III, JAIPUR DATED 21-11-2012 FOR THE ASSESSM ENT YEAR 2009-10 RAISING THEREIN FOLLOWING GROUNDS IN HIS APPEAL. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE A DDITION OF RS. 23,18,477/- BY AO TREATING THE CREDIT IN THE BA NK ACCOUNT AS UNDISCLOSED INCOME WITHOUT AFFORDING PROPER OPPO RTUNITY OF BEING HEARD. ITA NO. 560/JP/2013 SHRI AZAD HUSSAIN VS. ITO WARD- 7(3),JAIPUR . 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRM ING THE ADDITION OF RS. 94,572/- BY INCREASING THE NET PROF IT DECLARED BY THE ASSESSEE. 2.1 THE APPEAL IS DELAYED BY 97 DAYS FOR WHICH THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY ALONGWITH A N AFFIDAVIT EXPLAINING THAT THE DELAY IS NOT CAUSED BY ASSESSEES DEFAULT BUT IT WAS DUE TO WRONG DELIVERY OF LD. CIT(A)S ORDER DATED 27-11-2012 TO SOMEBODY ELSE IN THE LOCALITY OF THE ASSESSEE WHO LATER ON HANDED OVER T HE SAME ON 16-04- 2013 TO THE ASSESSEE. THE ASSESSEE SUBMITTED THAT T HIS DELAY WAS NOT INTENTIONAL BUT IT WAS BEYOND THE CONTROL OF THE AS SESSEE. THEREFORE, HE COULD NOT FILE THE APPEAL IN TIME. THUS THE ASSESSE E PRAYED FOR CONDONATION OF DELAY IN FILING THE APPEAL. 2.2 THE LD. DR IS HEARD ON CONDONATION. 2.3 AFTER HEARING BOTH THE PARTIES, WE ARE OF THE V IEW THAT THE DELAY IN FILING APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE W HO WAS PREVENTED BY SUFFICIENT REASONS. THEREFORE, THE SAME IS CONDONED IN THE INTEREST OF JUSTICE. 3.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED HIS RETURN OF INCOME ON 5-09-2009 DECLARING INCOME OF RS. 2,35,44 0/- FOR THE ASSESSMENT YEAR 2009-10. THE ASSESSEE IN HIS RETURN HAD SHOWN A NET PROFIT OF RS. 4,05,428/ ON TOTAL RECEIPT OF RS. 36, 54,828/-. THERE WERE TOTAL ITA NO. 560/JP/2013 SHRI AZAD HUSSAIN VS. ITO WARD- 7(3),JAIPUR . 3 DEPOSITS OF RS. 23,18,447/- IN THE ICICI BANK ACCOU NT MAINTAINED BY THE ASSESSEE. THE SAME HAS BEEN ADDED BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE TREATING IT AS HIS UNDISCLOSED INCOME. HOWEVER, THE AO FINALLY WORKED OUT TOTAL INCOME OF THE ASSESSEE IN HIS EX-PARTE ASSESSMENT ORDER AMOUNTING TO RS. 28,19,040/- U/S 144 OF THE A CT AS THE ASSESSEE HAD NOT FURNISHED ANY EXPLANATION ON THE NOTICES ISSUED BY THE AO. 3.2 THE LD. CIT(A) EX-PARTE CONFIRMED THE ORDER OF THE AO IN SPITE OF PROVIDING VARIOUS OPPORTUNITIES TO THE ASSESSEE . 3.3 DURING THE COURSE OF HEARING BEFORE US, THE LD . AR OF THE ASSESSEE PRAYED THAT THE ASSESSEE IS ENGAGED IN THE BUSINES S OF TRADING IN VARIOUS TYPES OF SCRAPS DURING THE YEAR. THE INDUSTRY IN WH ICH THE ASSESSEE DEALS WITH IS OF KIND IN WHICH ALL THE TRANSACTIONS ARE C ARRIED OUT IN CASH AND ALL THE PURCHASERS PREFER CASH MODE TRANSACTION ONLY. H ENCE, THE SALE EFFECTED BY THE ASSESSEE DURING THE YEAR WAS CREDITED IN HIS BANK ACCOUNT AND HAS BEEN DULY TAKEN INTO CONSIDERATION WHILE FURNISHING HIS RETURN OF INCOME. THE ASSESSEE HAS DULY SHOWN GROSS RECEIPTS OF RS. 3 6,54,828/- AND DECLARED A NET PROFIT OF RS. 4,05,428/- OUT OF IT, WHICH IS QUITE HIGHER THAN AS SHOWN BY OTHER SCRAP DEALERS. THE FIGURES OF NET PROFIT WERE DERIVED OUT ONLY AFTER CONSIDERING ALL THE NECESSARY EXPEND ITURES WHICH WAS INCURRED IN THE INTEREST OF THE BUSINESS. HENCE, TR EATING THE CASH DEPOSIT OF RS. 23,18,447/- IN THE BANK ACCOUNT OF THE ASSESSEE AS HIS UNDISCLOSED ITA NO. 560/JP/2013 SHRI AZAD HUSSAIN VS. ITO WARD- 7(3),JAIPUR . 4 INCOME WITHOUT ANY COGENT REASON IS PURELY ILLOGICA L AND NEEDS TO BE DELETED IN FULL. THE ASSESSEE SUBMITTED THAT NOTICE S WERE DULY SERVED TO THE ASSESSEE BUT THE TIME NOTICES WERE SERVED TO TH E ASSESSEE AND ASSESSMENT WAS CARRIED OUT BY THE AO AND CIT (A) HE WAS RESIDING IN GURGAON FOR CARRYING OUT SOME BUSINESS ACTIVITIES. THE ASSESSEE SUBMITTED THAT DUE TO HIS PERSONAL AND RELIGIOUS AC TIVITIES HE COULD NOT COMPLY WITH THE NOTICES AND FURTHER PRAYED THAT HIS ASSESSMENT IS NOT DONE IN A PROPER MANNER AND MATTER MAY BE REMANDED BACK TO THE AO SO THAT ALL THE RELEVANT INFORMATION AND DOCUMENTS COU LD BE PRODUCED BEFORE HIM FOR DE NOVO ASSESSMENT. 3.4 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES AND OBJECTED TO THE CONTENTIONS OF THE LD. AR OF THE AS SESSEE. 3.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND ADOPTING THE METHOD OF PRINCIPLE OF NATUR AL JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR DENOVO AS SESSMENT BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE ASSESSEE IS DIRECTED TO REMAIN PRESENT AT THE TIME OF ASSESSME NT FOR PROVIDING NECESSARY DETAILS / RECORDS AND COOPERATE WITH THE AO FOR COMPLETION OF THE ASSESSMENT. ITA NO. 560/JP/2013 SHRI AZAD HUSSAIN VS. ITO WARD- 7(3),JAIPUR . 5 40. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/11/201 5. SD/- SD/- (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20 /11/2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI AZAD HUSSAIN, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 7 (3), 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. 560/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR