Sh. Harpreet Singh Bhinder Prop., Bathinda V. The ACIT, Bathinda

ITA 576/ASR/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7812 (ITAT-AMRITSAR)
• Duration Of Justice: 4 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-08-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 09-09-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence; Ignorance of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER I.T.A NO. 576/(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: ABJPB2286M HARPREET SINGH BHINDER (PROP) M/S BHINDER & SONS, BATHINDA. VS. A. C. I. T., CIRCLE-1 BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. TARUN BANSAL (ADV. ) RESPONDENT BY: SH. RAHUL DHAWAN (D. R.) DATE OF HEARING: 10.08.2017 DATE OF PRONOUNCEMENT: 20.09.201 7 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF LD. CIT(A), BATHINDA DATED 27.06.2013 FOR ASST. YEAR: 2009-10. 2. THE ASSESSEE HAS TAKEN AMENDED GROUNDS OF APPEAL , VIDE APPLICATION DATED 08.04.2016, HOWEVER VIDE APPLICAT ION DATED 18.07.2016, THE LD. AR HAS WITHDRAWN GROUND NO. 2 A ND INSTEAD VIDE LETTER DATED 18.07.2016, THE ASSESSEE HAS REQUESTED TO ACCEPT ADDITIONAL GROUNDS OF APPEAL, THEREFORE THE ORIGINAL GROUND NO . 1 AND ADDITIONAL GROUND OF APPEAL ARE REPRODUCED BELOW: 1. THAT THE LD. AO HAS WRONGLY MADE ADDITION OF RS .91,568, IGNORING THE FACT THAT IT INCLUDES CONDITIONAL SECURITY, SERVICE -TAX ETC IN IT AND WHICH IS NOT PART OF TAXABLE INCOME. ITA NO. 576(ASR)/2013 ASSESSMENT YEAR: 2009-10 2 2. THAT AO HAS WRONGLY ACCEPTED DEPOSIT OF THREE PE RSONS AS SURRENDERED AMOUNT, BY TREATING THE SAME, AS RECEIVED FROM TWO PERSONS, FURTHER IGNORING THAT AMOUNT IS RECEIVED THROUGH THREE PAYE ES ACCOUNT DRAFT / CHEQUES DURING THE YEAR AS UNDER AND ASSESSEE WAS U NABLE TO EXPLAIN THE SAME DURING ASSESSMENT BEING SERIOUSLY ILL:- S. NO. NAME AND ADDRESS OF DEPOSITOR AMOUNT OF DEPOSIT MODE OF PAYMENT DATE OF ENTRY IN PASSBOOK PAN NO. AND WARD OF ASSESSMENT A) PROF. JASREEN KAUR LAYALPUR KHALSA COLLEGE,JALANDHAR RS . 1,00 ,000/ - + BANK CHARGES RS.275/- = RS. 1,00,275/- BY P/A BANK DRAFT ISSUED FROM PUNJAB NATIONAL BANK, JALANDHAR 04.11.2008 ABNPK1866G WARD-3 (1), JALANDHAR B) HARKAMAL SINGH S/O KULDEEP SINGH #1119, SECTOR-70, MOHALI RS.50,000/- BY P/A CHEQUE NO.209632 DATED 1.6.2008 ON ICICI BANK MOHALI 19.06.2008 ALHPM5317L WARD-6(3), CHANDIGARH C) KULJEET SINGH ALIAS ARVINDER S/O MOTI SINGH MULTANIA ROAD, BATHINDA RS. 1,75,000/- BY P/A CHEQUE NO.78605 ON HDFC BANK, BATHINDA 30.12.2008 AXFPS6944R WARD-1(2), BATHINDA TOTAL 3,25,000 3. AT THE OUTSET, THE LD. AR INVITED OUR ATTENTION TO AN APPLICATION DATED 08.04.2016 FOR ADMISSION OF ADDITIONAL EVIDEN CE UNDER RULE 29 WITH RESPECT TO GROUND NO. 2. THE LD. AR EXPLAINING THE FACTS OF THE CASE SUBMITTED THAT ASSESSEE WAS A CONTRACTOR AND HE HAD FILED RETURN OF INCOME AFTER GETTING BOOKS OF ACCOUNT AUDITED. DURI NG ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER REQUIRED ASSESSE E TO EXPLAIN CASH CREDITS TO THE EXTENT OF RS.3,25,000/-. IT WAS SUBM ITTED THAT AT POINT OF TIME, THE ASSESSEE WAS SERIOUSLY ILL AND WAS HAVING SUICIDAL THOUGHTS AND THEREFORE THE LD. AR OF THE ASSESSEE CONTACTED THE WIFE OF ASSESSEE AND ADVISED HER TO SURRENDER THESE AMOUNTS, AND THEREFO RE THE LD. AR SURRENDERED THESE AMOUNTS. THE LD. AR SUBMITTED THA T ASSESSEE COULD ITA NO. 576(ASR)/2013 ASSESSMENT YEAR: 2009-10 3 NOT AGITATE THIS ADDITION BEFORE LD. CIT(A) AS HE W AS SERIOUSLY ILL AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO VARIOUS M EDICAL PRESCRIPTIONS PLACED IN THE FILE. THE LD. AR SUBMITTED THAT IN FA CT THESE PAYMENTS WERE RECEIVED FROM 3 PERSONS AND THE AMOUNTS WERE RECEIV ED THROUGH CHEQUES AND THE DEPOSITOR WAS HAVING PAN NOS. AND DEPOSITOR S HAS ALSO FILED AFFIDAVITS ALONGWITH COPY OF BANKS STATEMENTS WHICH ARE IN THE FORM OF ADDITIONAL EVIDENCES. IT WAS SUBMITTED THAT HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF VIJAY KUMAR JAIN VS. CIT (1975) 99 ITR 349 HAS HELD THAT AN APPELLANT WHO DID NOT PRESS AN ISS UE BEFORE THE AUTHORITIES BELOW CAN STILL AGITATE THE SAME BEFORE ITAT. THEREFORE IT WAS PRAYED THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER FOR EXAMINATION. AS REGARDS, THE FIRST GROUND OF AMENDED GROUNDS OF APPEAL, THE LD. AR SUBMITTED THAT THE AMOUNT OF CONTRACT RECEIPT WA S RECEIVED IN THE SUBSEQUENT YEAR AND THEREFORE WAS INCLUDED IN THE I NCOME OF SUBSEQUENT YEAR. HE FURTHER POINTED OUT THAT THE AMOUNTS OF RS .91,568/- WAS INCLUSIVE OF SERVICE TAX , DRAFT/ CHARGES, CONDITIO NAL SECURITY ETC. AND IF AT ALL THE ADDITIONS WERE TO BE MADE, IT WAS TO BE RESTRICTED TO THE EXTENT OF RS.83,043/-. 4 THE LD. DR ON THE OTHER HAND SUBMITTED THAT BEFOR E LD. CIT(A), THE GROUNDS OF APPEAL RELATING TO CASH CREDIT WAS NOT T AKEN AND THE GRIEVANCE OF THE ASSESSEE IS NOT COMING OUT OF THE ORDER OF L D. CIT(A). HE FURTHER SUBMITTED THAT DURING ASSESSMENT PROCEEDINGS, THE A SSESSEE HAD ITA NO. 576(ASR)/2013 ASSESSMENT YEAR: 2009-10 4 SURRENDERED THE AMOUNT OF RS.3,25,000/- BEING UNEXP LAINED CASH CREDIT AND THEREFORE ASSESSING OFFICER HAS RIGHTLY MADE TH E ADDITION. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THOUGH THE MATERIAL PLACED ON RECORD. AS REGARDS THE ISSUE OF CASH CREDITS AMOUNTING TO RS.3,25,000/-, WE FIND THAT THE ASSESS ING OFFICER HAD MADE ADDITION OF THIS AMOUNT AS THE ASSESSEE HAD SURREND ERED THE SAME. BEFORE LD. CIT(A), THIS GRIEVANCE WAS NOT AGITATED, HOWEVER BEFORE US, THE ASSESSEE HAS TAKEN THIS GRIEVANCE OF ASSESSEE AS AN ADDITIONAL GROUND OF APPEAL. FROM THE ADDITIONAL EVIDENCES FILED BY ASSE SSEE, WE FIND THAT THE AMOUNT OF RS.3,25,000/- REPRESENTED AMOUNTS RECEIVE D FROM 3 PERSONS WHICH WERE RECEIVED THROUGH BANKING CHANNELS. THE D EPOSITOR HAS FILED THEIR AFFIDAVITS AND HAS ALSO FILED THE COPY OF BAN K STATEMENT FROM WHERE THE AMOUNTS WERE GIVEN TO ASSESSEE. SUCH EVIDENCES ARE PLACED IN THE APPLICATION FOR ADDITIONAL EVIDENCE AT PAGES 51 TO 57. THE EXAMINATION OF THE AFFIDAVITS AND A COPY OF BANK ACCOUNTS CLEARLY ESTABLISH THAT ASSESSEE HAD RECEIVED THESE AMOUNTS FROM 3 PERSONS WHO WERE HAVING THEIR PAN NOS. AND WHO HAS ALSO FILED AFFIDAVITS STATING THER EIN THE FACT OF HAVING GIVEN CHEQUES TO THE ASSESSEE. DURING ASSESSMENT PR OCEEDINGS THE ASSESSEE HAD SURRENDERED THE AMOUNTS BEING UNEXPLAI NABLE BUT AS PER THE EVIDENCE ON RECORD THESE DEPOSITS SEEM TO BE EX PLAINED BUT WHICH WERE SURRENDERED AS THE ASSESSEE WAS NOT HAVING GOO D HEALTH AND THE WIFE OF ASSESSEE, THEREFORE INSTEAD OF DISTURBING H IS HUSBAND OFFERED TO PAY TAX. HOWEVER IT IS A FACT THAT TAX CANNOT BE LE VIED ON IGNORANCE OF LAW AND INCOME HAS TO BE COMPUTED IN ACCORDANCE WITH TH E PROVISIONS OF LAW. ITA NO. 576(ASR)/2013 ASSESSMENT YEAR: 2009-10 5 IN VIEW OF THE PECULIAR FACTS AND CIRCUMSTANCES WE ACCEPT ADDITIONAL GROUND OF APPEAL ALONGWITH ADDITIONAL EV IDENCES AND THE CASE IS SENT BACK TO ASSESSING OFFICER TO CONSIDER THESE EVIDENCES. AS REGARDS THE OTHER ADDITION OF RS.91568/-, WE FI ND THAT ASSESSEE WAS REQUIRED TO INCLUDE THIS INCOME IN THE TOTAL IN COME AS HE HAD CLAIMED TAX DEDUCTED AT SOURCE ON THIS RECEIPT DURI NG THIS YEAR AND THEREFORE WE HOLD THAT THE AUTHORITIES BELOW HAS RI GHTLY MADE THE ADDITION, HOWEVER THE TAXABLE AMOUNT SHOULD BE REST RICTED TO RS.83043/- BEING THE AMOUNT RECEIVED BY ASSESSEE + TDS DEDUCTE D. THE REST OF AMOUNT WHICH INCLUDE DRAFT/ CHARGES, SERVICE TAX ET C. IS NOT TAXABLE. 6. IN VIEW OF THE ABOVE, THE APPEAL FILED BY ASSESS EE IS PARTLY ALLOWED, AND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.09.2017 SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20.09.2017. /GP/SR. PS . COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER