Bajrang Lal Agarwal, Tinsukia V. Deputy Commissioner of Income Tax, Circle-3, Guwahati

ITA 57/GTY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0561 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 15-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P MRINAL KR DAS
• Assessee Lawyers: S P BHATI
• Keywords: Unexplained cash credit; Search and seizure; Reassessment proceedings; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E-COURT, KOLKATA/GAUHATI BEFORE SHRI A.T. VARKEY, JM & DR. A.L.SAINI, AM ITA NO.57/GAU/2019 (A.Y: 2013-14) BAJRANG LAL AGARWAL C/O. EXPRESS WINGS PRIVATE LIMITED, MAKUM ROAD, TINSUKIA, ASSAM 786125. VS. DCIT, CIRCLE 3, GUWAHATI ./ ./PAN/GIR NO. : ABNPA 1802 A ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI S.P. BHATI, FCA REVENUE BY : SHRI P. MRINAL KR. DAS, ADDL. CIT / DATE OF HEARING : 04/06/2020 /DATE OF PRONOUNCEMENT: 17/06/2020 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2013-14, IS DIRECTED AGAINST THE ORDER PASSED BY LD . COMMISSIONER OF INCOME TAX (APPEALS) - 2 GUWAHATI DATED 04.12.2018, WHICH IN T URN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3 ) OF THE INCOME TAX ACT, 1961( HEREINAFTER REFERRED TO AS THE ACT) DATED 3 1.03.2015. 2. AT THE OUTSET ITSELF, THE LEARNED COUNSEL FOR TH E ASSESSEE SUBMITTED BEFORE THE BENCH THAT DURING THE ASSESSMENT STAGE THE ASSESSEE HAS NOT BEEN GIVEN ADEQUATE OPPORTUNITY TO FURNISH THE DOCUMENTS AND EVIDENCES, THEREFORE ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEA D HIS CASE BEFORE THE ASSESSING OFFICER. LEARNED COUNSEL STATED THAT ASSESSING OFFI CER HAS MADE ADDITION OF RS. 29,50,000/- AS UNEXPLAINED CASH CREDIT ON THE BASIS THAT THE ASSESSEE HAS NOT SUPPORTED HIS EXPLANATION WITH PROPER MATERIAL EVID ENCE AND THE ASSESSEE HAS NOT CORRELATED AND EXPLAINED THE ENTRIES IN THE SEIZED MATERIAL MARKED AS BLA-8 WITH REGULAR BOOKS OF ACCOUNTS. THE LEARNED COUNSEL SUBMITTED THAT SAID ACCOUNT BAJRANG LAL AGARWAL ITA NO.57/GAU/2019 A.Y: 2013-14 2 WAS NOTHING BUT MONEY KEPT IN CHEST BY THE PARTNER AND WHENEVER THERE IS REQUIREMENT IN THE FIRM SAID AMOUNT IS BROUGHT INTO THE FIRM AND ALSO RETURNED BACK TO PARTNER. DURING THE ASSESSMENT STAGE, THE L EDGER COPY SEIZED MARKED AS BLA-8/199 CONTAINS ONLY THE DEBIT ENTRY. THE ASSESS EE HAS SUBMITTED DEBIT LEDGER AND CREDIT LEDGER BEFORE THE ASSESSING OFFICER BUT THE SAME HAS NOT BEEN CONSIDERED BY THE AO. HOWEVER, THE ASSESSEE ALSO SU BMITTED THE SUMMARY OF DEBIT LEDGER AND CREDIT LEDGER DURING THE APPELLATE PROCEEDINGS TO EXPLAIN THE ENTRIES IN THE BOOKS OF ACCOUNTS. THE LEARNED COUNS EL CONTENDED BEFORE THE BENCH THAT ASSESSING OFFICER HAS NOT EXAMINED THE EVIDENC ES PROPERLY AND DID NOT ASK THE ASSESSEE TO FURNISH FURTHER EVIDENCES TO PROVE THE GENUINENESS OF THE AMOUNT OF RS. 29,50,000/-. THE LEARNED COUNSEL FURTHER SUBMITTED THAT DURING T HE FINANCIAL YEAR 2012-13, THE ASSESSEE MADE PAYMENT OF LIFE INSURANCE PREMIUM AMO UNTING TO RS. 5,60,202/-. MOST OF THE LIC RECEIPTS WERE SEIZED BY THE DEPARTM ENT DURING THE SEARCH AND SEIZURE THEREFORE ASSESSEE COULD NOT PRODUCE BEFORE THE AO. HOWEVER, THE COUNSEL SUBMITTED THAT ALL THE PAYMENTS WERE MADE B Y THE ASSESSEE BY ACCOUNT PAYEE CHEQUES TO THE LIC OF INDIA THEREFORE GENUINE NESS OF THESE PAYMENTS SHOULD NOT DOUBTED. LIKEWISE THE ASSESSEE WANTS TO SUBMIT RELEVANT EVIDENCES BEFORE THE AO IN RESPECT OF OTHER GROUNDS RAISED BY THE ASSESSEE. HENCE, LD COUNSEL PRAYED THE BENCH THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE ASSESSING OFF ICER. 3. ON THE OTHER HAND, LD. DR FOR THE REVENUE DID NO T HAVE ANY OBJECTION IF THE MATTER IS REMITTED BACK TO THE FILE OF THE ASSESSIN G OFFICER. 4. WE HAVE HEARD BOTH THE PARTIES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AFTER GOING THROUGH THE SUBMISSION OF TH E ASSESSEE AS NOTED ABOVE, WE NOTE THAT ASSESSEE DID NOT GET ADEQUATE OPPORTUNITY TO PLEAD HIS CASE BEFORE THE ASSESSING OFFICER, SO, WE FIND FORCE IN THE SUBMISS ION OF THE LD. COUNSEL THAT NO PROPER OPPORTUNITY WAS GIVEN TO ASSESSEE BY AO DURI NG THE REASSESSMENT PROCEEDINGS THEREFORE WE ARE OF THE VIEW THAT SAID LIS SHOULD BE REMITTED BACK TO THE FILE OF THE AO TO ADJUDICATE THE ISSUES AFRESH, FOR THAT WE RELY ON THE JUDGMENT BAJRANG LAL AGARWAL ITA NO.57/GAU/2019 A.Y: 2013-14 3 OF THE HONBLE (THREE JUDGE BENCH) OF THE HONBLE S UPREME COURT IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) WHEREIN I T WAS HELD AS FOLLOWS: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTH ORITY, THAT READS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORT UNITY OF BEING HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSE SSEE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NEC ESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSIN G AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OP PORTUNITY OF BEING HEARD. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME-TAX OFFICER HAD NOT GIVEN A P ROPER OPPORTUNITY OF HEARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAV OUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CONSI DERATION, AS AFORESTATED. 5. THEREFORE, RELYING ON THE JUDGMENT OF HONBLE SUP REME COURT IN THE CASE OF TIN BOX COMPANY (SUPRA), WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR DE NOV O ASSESSMENT AND TO DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17/06/2020. SD/- ( A.T. VARKEY) SD/- (DR. A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED: 17/06/2020 BISWAJIT, SPS BAJRANG LAL AGARWAL ITA NO.57/GAU/2019 A.Y: 2013-14 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- BAJRANG LAL AGARWAL. 2. / THE RESPONDENT.- DCIT, CIRCLE 3, GUWAHATI. 3. ( ) / THE CIT(A), GUWAHATI 4. / CIT 5. ! $$% , % , / DR, ITAT, GUWAHATI 6. ( / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .