SATYAPAL SINGH, TONK V. Deputy Commissioner of Income Tax, Central Circle-2, Jaipur, Jaipur

ITA 564/JPR/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5830 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-10-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 30-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Salary income; Document seized; Opportunity of being heard; Documents seized; Set aside
• Section: 131; 69; 144; 143(3); 142(1); 153A; 153C

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA Nos. 563 & 564/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2017-18 & 2018-19 Satyapal Singh Brahman Mohlla Phool Mali Mali Malpura, Tonk cuke Vs. Deputy Commissioner of Income Tax Central Circle-02, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BRKPS 0344 B vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. R. K. Bhatra (CA) & Sh. S. R. Sharma (CA) jktLo dh vksj ls@ Revenue by : Sh. Ajay Malik (CIT) lquokbZ dh rkjh[k@ Date of Hearing : 10/10/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 31/10/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM These two appeals filed by the assessee are arising out of the order of the Commissioner of Income Tax (Appeals)-4, Jaipur dated 20/06/2023 [here in after (CIT(A))] for assessment years 2017-18 & 2018-19 which in turn arise from the order dated 17.05.2021 passed under section 144 r.w.s 153C of the Income Tax Act, by the ACIT, Central Circle-02, Jaipur. 2 ITA Nos. 563 & 564/JP/2023 Satyapal Singh vs. DCIT, Central Circle-02, Jaipur 2. Since the issues involved in the assessee’s appeal for both the years are almost identical and are almost common, except the difference in figure of additions disputed, therefore, both these appeals were heard together with the agreement of both the parties and are being disposed off by this consolidated order. 3. At the outset, the ld. AR has submitted that the matter in ITA No. 563/JP/2023 may be taken as a lead case for discussions as the issues involved in the lead case are common and inextricably interlinked or in fact interwoven and the facts and circumstances of other cases are identical except the difference in the amount in other assessment year. The ld. DR did not raise any specific objection against taking that case as a lead case. Therefore, for the purpose of the present discussions, the case of ITA No. ITA No. 563/JP/2023 is taken as a lead case. Based on the above arguments we have also seen that for both the appeals grounds are similar, facts are similar and arguments were similar and therefore, were heard together and are disposed by taking lead case facts, grounds, and arguments from the folder in ITA No. 563/JP/2023. 3 ITA Nos. 563 & 564/JP/2023 Satyapal Singh vs. DCIT, Central Circle-02, Jaipur 4. Before moving towards the facts of the case we would like to mention that the assessee has assailed the appeal in ITA No. 563/JP/2023 on the following grounds; “1. That on the facts and in the circumstances of the case the Ld. CIT(A) is wrong, unjust and has erred in law in passing appeal order on ex-parte basis without considering submission filed by the appellant before signing on the order. 2. That without prejudice to the ground No. 1 supra, on the facts and in the circumstances of the case the Ld. CIT(A) is wrong, unjust and has erred in law in confirming addition of Rs. 8,00,000/- made to the income of the appellant by the ld. AO on account of alleged unexplained investment in loan under section 69 of the IT. Act, 1961 on the basis of exhibit No. 3 of seized papers found from the residence of Sh. Jaipal Singh during course of search at his residence. 3. The assessee craves permission to add to or amend to any of grounds of appeal or to withdraw any of them.” 5. The fact as culled out from the records is that the assessee has not filed his ITR. Vide letter dated 03.04.2021, he has submitted that he is a farmer and his only source of income is agriculture income which is exempt under the Income tax Act. A search & seizure action u/s 132(1) of the Act was conducted at the residential premises of Shri Jaipal Singh 35, Chitragupt Nagar 1 st , Imliwala Faatak, Jaipur on 02.08.2017. During the course of search proceedings, a diary and some loose papers containing cash/cheque loan receipts and payments were found and seized and inventorized as Annexure-As Exhibit-3. This diary was written in handwriting of Shri Jaipal Singh. From perusal of the diary it was found that it contained 4 ITA Nos. 563 & 564/JP/2023 Satyapal Singh vs. DCIT, Central Circle-02, Jaipur transactions of cash loan from various persons with details of interest. The name of Shri Satyapal Singh is included in the diary. The statement of Shri Jaipal Singh was recorded u/s 131 dated 23.12.2019 wherein he stated that the transaction in the name of Shri Bhaisaab relates to Shri Satyapal Singh, Brahman Mohalla Phool Mali, Malpura, Tonk, Rajasthan. Shri Jaipal Singh also furnished affidavit of Shri Satyapal Singh in support of the same. The PAN details of Shri Satyapal Singh are found active. Hence it is evident that the details noticed in the name of Shri Bhaisaab relate to Shri Stayapal Singh. It was contended since no notice under section 153C was served upon the assessee and accordingly no return of income was filed by the assessee. After that, the ld. AO issued a notice under section 142(1) on 01.04.2021 i.e. after 17 days of issue alleged notice under section 153C which also shows that no sufficient opportunity of being heard is allowed to the appellant to present his case. The ld. AO finally passed an ex parte assessment order under section 144 read with section 153C of the IT Act, 1961 on 17.05.2021 assessing the total income at Rs. 8,00,000/- on account of alleged unexplained investment under section 69 of the IT. Act, 1961 made through Shri Jaipal Singh. 5 ITA Nos. 563 & 564/JP/2023 Satyapal Singh vs. DCIT, Central Circle-02, Jaipur 6. As the assessee is aggrieved with the order of the ld. AO passed u/s 144 r.w.s 153C of the Act, he has preferred an appeal before ld. CIT(A) and the same was dismissed. The relevant finding of the ld. CIT(A) is as under:- “7. Ground of Appeal No. 3 & 4 are inter related hence they are clubbed together for adjudication and is with respect to the addition on a/c of unexplained investment in loan u/s 69 of the Act amounting to Rs. 8,00,000/- Here it is pertinent to mention that assessment proceedings in the case of Sh. Jaipal Singh for AY 2018-19 were completed u/s 143(3) r.w.s. 153A of the Act. Sh. Jaipal Singh is a brother of the appellant and derives his income from salary and other sources. During the course of search & seizure action at his premises at 35, Chitragupt Nagar, 1 Imliwala Faatak, a diary and some loose papers containing cash/cheque loan receipts and payments were found which were seized and inventorized as per Annexure AS, Exhibit 2 & 3. The seized annexure contained transactions of cash/cheque loan in the name of varicus persons along with details of interest including the loan advanced by the appellant. 7.1 During the course of assessment proceedings, the appellant vide letter di 03.04.2021 admitted that he had undertaken the transactions relating to contribution in investment project through Sh. Jaipal Singh. The details of the transactions in the name of the appellant, as appearing in the seized documents, was prepared by the Department and placed in the satisfaction note. As per this, appellant had given cash loan of Rs. 8,00,000/- on 05.07.2016 (AY 2017-18) and Rs. 1,00,000/ on 04.07.2017 (AY 2018-19). 7.2 Source of loan of Rs: 8,00,000/- given in cash on 05.07.2016 and Rs. 1,00,000/- in cash on 04.07.2017 is explained as family agricultural income. However on perusal of the chart of family income submitted by the appellant it is seen that as on 05.07.2016, appellant did not have cash of Rs. 8,00,000/- to give as loan. The income in the name of father cannot be considered as his because he has a brother and other members in the family. Moreover, the land ownership papers are also in the name of father Sh. Girvar Singh. 7.3 On the basis of unexplained investment of Rs. 8,00,000/- for which no satisfactory explanation or supporting documents on source has been furnished, it was brought to tax u/s 69 of the Act and the same is liable to be taxed at 60% u/s 115BBE of the Act. During the course of appellate proceeding also, the appellant has not brought anything on record to explain the source of the loan given. Based on whatever material is available on file and in absence of any new submission/ finding and any other material for which the appellant was provided so many opportunities, I do not find any infirmity in the addition made by the AO. This Ground of Appeal is rejected and the addition of Rs. 8,00,000/- is confirmed and its taxation at 60% u/s 115BBE of the Act is also confirmed. 6 ITA Nos. 563 & 564/JP/2023 Satyapal Singh vs. DCIT, Central Circle-02, Jaipur 8. In the result, the appeal of the appellant is dismissed.” 7. As the assessee did not find any favour, from the order of the ld. CIT(A), the assessee has preferred the present appeal before this Tribunal on the ground as reproduced hereinabove. To support the various grounds so raised by the ld. AR of the assessee, he has filed the written submissions and the same is reproduced herein below: “The above appeal has been filed by assessee against the ex-parte appeal order passed by Ld. CIT(A)-4, Jaipur vide DIN & Document number ITBA/APL/S/91/2023-24/1054093231(1) dated 03-07-2023 in appeal number 4/10595/2016-17 for the A.Y. 2017-18. In this connection we have been directed to submit that the case was first time fixed for hearing on 09-03-2023 vide notice dated 02-03-2023. That appellant filed an adjournment application on 09-03-2023 seeking some time. Thereafter Ld. CIT(A) issued two more notice(s) on 15-03- 2023 and 24-03-2023 fixing the date of hearing on 22-03-2023 and 10-04-2023. The appellant complied the said two notices also by filling adjournment applications as details/documents for preparation of written submission were under collection. The Ld. CIT(A) finally fixed the date of hearing on 19-06-2023 vide notice dated 06-06-2023.The appellant is an agriculturist and having no email ID as such all the notice(s) were served on email ID of his close relative Jaipal Singh. But due to oversight Shri Jaipal Singh could not see the last notice issued by Ld. CIT(A) and did not informed about the same to appellant within time. Thereafter he checked his email ID on 25-06-2023 and immediately inform to appellant. On receipt of information the appellant submitted written submission along with documentary evidences on 26-06-2023 before the Ld. CIT(A). In this connection it is worthwhile to submits here that the written submissions were filed before signing the appeal order as DIN number of appeal order was generated on 03-07-2023. A copy of written submission filed along with acknowledgement thereof is enclosed herewith. Thus, there is no conscious default on the part of assessee in complying the notice(s) issued by Ld. CIT(A). An affidavit of appellant confirming the above facts is enclosed herewith. In view of the above facts and circumstances the case the assessee was prevented by sufficient reasons in not complying the notice(s) received from CIT (A). In the circumstances in the interest of justice it is prayed to your honor that the matter may kindly be set aside/remanded back to lower authorities. The appellant prays accordingly.” 7 ITA Nos. 563 & 564/JP/2023 Satyapal Singh vs. DCIT, Central Circle-02, Jaipur 8. In addition to the above written submission the ld. AR of the assessee vehemently argued before us that when the revenue has not disputed the fact that the assessee is a regular income tax payer from last so many years. The assessee is an agriculturist having only source of income from agricultural activities. The income that has been assessed to tax is illegal and the assessee should be given the relief in accordance with the law. 9. The ld DR is heard who has relied on the findings of the lower authorities. 10. We have heard the rival contentions and perused the material placed on record. The Bench noted that the assessee is an agriculturist having only source of income from agricultural activities. We noticed that the case was first time fixed for hearing on 09-03-2023 vide notice dated 02-03-2023. That appellant filed an adjournment application on 09-03-2023 seeking some time. Thereafter Ld. CIT(A) issued two more notice(s) on 15-03-2023 and 24-03-2023 fixing the date of hearing on 22-03-2023 and 10-04-2023. The appellant complied the said two notices also by filling adjournment applications as details/documents for preparation of written submission were under collection. The Ld. CIT(A) finally fixed the date of hearing on 19- 06-2023 vide notice dated 06-06-2023. The bench noted that the assessee 8 ITA Nos. 563 & 564/JP/2023 Satyapal Singh vs. DCIT, Central Circle-02, Jaipur is an agriculturist having no email ID as such all the notice(s) were served on email ID of his close relative Jaipal Singh. But due to oversight Shri Jaipal Singh could not see the last notice issued by Ld. CIT(A) and did not inform about the same to assessee within time. Keeping in view of the present facts and circumstances of the case the bench noted from the order of the ld. CIT(A) that the assessee was deprived from the justice so as to plead the merits of the case. Based on these set of facts we are inclined to accept the request of the ld. AR of the assessee to set aside the case to the file of the ld. CIT(A), so as to decide the case of the assessee on merits after giving proper opportunity of being heard to the assessee. At the same time, the assessee is directed to represent and present all the facts before the ld. CIT(A) and should not ask for adjournment of trifles grounds. At this stage, we remand back the matter without commenting upon the merits of the case and ld. CIT(A) is directed to pass an order in accordance with law. In terms of these observations, the appeal of the assessee in ITA no. 563/JP/2023 is allowed for statistical purposes. 11. The fact of the case in ITA No. 564-JP-2023 is similar to the case in ITA No. 563-JP-2023 and we have heard both the parties and persuaded the materials available on record. The bench has noticed that the issues 9 ITA Nos. 563 & 564/JP/2023 Satyapal Singh vs. DCIT, Central Circle-02, Jaipur raised by the assessee in this appeal No. 564/JP/2023 is equally similar on set of facts and grounds. Therefore, it is not imperative to repeat the facts and various grounds raised by both the parties. Hence, the bench feels that the decision taken by us in ITA No. 563/JPR/2023 for the Assessment Year 2017-18 shall apply mutatis mutandis in the case of Shri Satyapal Singh in ITA No. 564-JP-2023 for the Assessment Year 2018-19. In the result, both appeals of the assessee are allowed for statistical purpose. Order pronounced in the open court on 31/10/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 31/10/2023 *Ganesh Kumar, PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Sh. Satyapal Singh, Tonk 2. izR;FkhZ@ The Respondent- DCIT, Central Circle-02, Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA Nos. 563 & 564/JP/2023) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar