VISHAL THUKRAL, Jaipur V. ITO, BHIWADI

ITA 577/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2171 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 24-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 31-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P C PARWAL CA SHRI R
• Keywords: Depreciation; Opportunity of being heard
• Section: 43B; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 577/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 VISHAL THUKRAL, T-511, ASHIANA ANGAN, ALWAR BYE PASS ROAD, BHIWADI, ALWAR. CUKE VS. INCOME TAX OFFICER, WARD- BHIWADI, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACEPT 6193 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 28/04/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 28/04/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER DATED 30/03/2016 PASSED BY THE LD CIT(A), ALWAR FOR THE A. Y. 2009-10, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.7 LACS MADE BY AO U/S 68 OF THE IT ACT BY TREATING THE OF UNSECURED LOAN OUT STANDING AS ON 31.03.2009 AS UNEXPLAINED. HE HAS FURTHER ERRED IN NOT ACCEPTING THE CONTENTION OF THE ASSESSEE THAT OUT OF RS.7 LAC S, RS.4 LACS REPRESENTS LOAN RECEIVED IN EARLIER YEARS FOR WHICH NO ADDITION IN THE YEAR UNDER CONSIDERATION CAN BE MADE BY INCORRECTLY HOLDING THAT ITA 577/JP/2016_ VISHAL THUKRAL VS ITO 2 ASSESSEE HAS FAILED TO FURNISH THE COPY OF ACCOUNT OF THE CREDITORS TO SUBSTANTIATE THE FACT OF FRESH LOAN RAISED DURING T HE YEAR. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OF RS.54, 000/- MADE BY THE AO ON ACCOUNT OF INTEREST PAID TO SH. SANJAY LA MBA BY HOLDING THAT IN THE LEDGER ACCOUNT OF SH. SANJAY LAMBA INTE REST IS SHOWN TO HAVE BEEN PAID BUT NO SUCH PAYMENT IS DEBITED IN TH E P&L A/C. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 15,59, 000/- MADE BY AO BY TREATING THE CASH DEPOSIT IN BANK ACCOUNT ON VAR IOUS DATES AS UNEXPLAINED BY:- (I) NOT ACCEPTING THE EXPLANATION OF THE ASSESSEE THAT SOURCE OF CASH DEPOSIT OF RS. 14,50,000/- IN THE BANK ACCOUNT IS AGAINST THE PROPERTY SOLD TO SMT. PUSHPA MALIK. (II) NOT ALLOWING THE CREDIT OF WITHDRAWAL MADE IN CASH FROM THE SAME BANK ACCOUNT WHICH IS A SOURCE OF DEPOSIT IN T HE BANK ACCOUNT. 4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.2,46,78 4/- BY TREATING THE DIFFERENCE IN RECEIPTS AS PER FORM NO.26AS AND RECEIPTS SHOWN IN BOOKS OF ACCOUNTS AS UNEXPLAINED INCOME OF THE ASSE SSEE BY NOT ACCEPTING THE EXPLANATION OF THE ASSESSEE THAT RECE IPTS SHOWN IN THE BOOKS OF ACCOUNT IS NET OF SERVICE TAX WHEREAS RECE IPTS SHOWN IN FORM NO. 26AS IS GROSS RECEIPTS. 5. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN DISALLOWING THE CLAIM OF DEDUCTION UN DER CHAPTER VI-A OF RS.1,00,000/- BY INCORRECTLY HOLDING THAT ASSESS EE HAS FAILED TO FILE ANY EVIDENCE IN THE COURSE OF APPELLATE PROCEEDINGS . 6. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING ADDITION OF RS.2 LACS ON A CCOUNT OF UNPAID DUTIES AND TAXES U/S 43B OF THE IT ACT, 1961 BY IGN ORING THAT ONCE ASSESSEE MADE THE PAYMENT BY CHEQUE ON 29.09.2009, THE CLEARANCE OF THE CHEQUE ON 03.10.2009 WOULD RELATE BACK TO TH E DATE OF FURNISHING OF CHEQUE AND THUS WHEN THE PAYMENT IS M ADE BEFORE DUE DATE OF FILING OF RETURN, NO ADDITION U/S 43B C AN BE MADE. ITA 577/JP/2016_ VISHAL THUKRAL VS ITO 3 7. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 19,54 5/- ON ACCOUNT OF EXCESS DISCOUNT RECEIVED FROM M/S TATA TELESERVICES NOT SHOWN IN THE BOOKS. 8. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN NOT ALLOWING THE CLAIM OF DEDUCTION U /S 24(B) OF RS.78,311/-, BEING INTEREST PAID ON THE HOUSING LOA N BY INCORRECTLY HOLDING THAT ASSESSEE HAS FAILED TO FILE ANY EVIDEN CE. 9. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OF RS.77, 696/- IN RESPECT OF DEPRECIATION ON CAR AND LAPTOP BY INCORRECTLY HO LDING THAT ASSESSEE HAS FAILED TO FURNISH THE COPY OF PURCHASE BILLS AND EVIDENCE OF HAVING PUT TO USE THESE ASSETS. 2. IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED EX PARTE DUE TO NON- COOPERATION/NON-COMPLIANCE OF THE ASSESSEE. THE ASSE SSING OFFICER HAS OBSERVED IN HIS ASSESSMENT ORDER THAT SEVERAL OPPOR TUNITIES FOR COMPLIANCE OF THE NOTICES AND SHOW CAUSE WERE GIVEN TO THE ASSESSEE , BUT HE FAILED. THEREFORE, HE ASSESSED TOTAL INCOME OF THE ASSESSEE AT RS. 39,18,320/-. 3. THE LD. CIT(A) HAS ALSO PASSED HIS ORDER IN ABSEN CE OF ASSESSEE AND WITHOUT APPRECIATED THE PROPER FACTS OF THE CASE. 4. BEFORE THE TRIBUNAL, THE LD. AR OF THE ASSESSEE H AS SUBMITTED THAT THE ASSESSING OFFICER HAS DECIDED THE APPEAL EX PARTE WI THOUT GIVING PROPER AND EFFECTIVE OPPORTUNITY OF HEARING. THE LD. CIT(A) HAS DECIDED THE APPEAL WITHOUT GOING INTO THE MERIT OF EVIDENCES, THEREFORE , HE PRAYED TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. TH E AR PLEADED THAT THE ITA 577/JP/2016_ VISHAL THUKRAL VS ITO 4 ASSESSING OFFICER MAY BE DIRECTED TO GIVE PROPER AN D EFFECTIVE OPPORTUNITY OF BEING HEARD. 5. ON THE CONTRARY, THE LD. SR. DR HAS VEHEMENTLY S UPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAD GIVEN SEVERAL OPPORTUNITIES TO THE ASSESSEE BUT THE ASSESSEE DOES NOT WANT TO PURSUE HIS MATTER. THE LD. CIT(A) HAS RIGHTLY DEC IDED THE APPEAL, THEREFORE HE PRAYED TO SUSTAIN THE ORDER OF THE LD. CIT(A). 7. I HAVE HEARD BOTH THE PARTIES AND HAVE ALSO GON E THROUGH THE RECORDS. FROM PERUSAL OF THE RECORDS, IT TRANSPIRES THAT THE ASSESSING OFFICER GAVE OPPORTUNITY TO THE ASSESSEE. HOWEVER, THERE IS NO EVIDENCE ON RECORD TO JUSTIFY OR CONFIRM THE FACT THAT ASSESSEE WAS PRO VIDED ADEQUATE AND EFFECTIVE HEARING WITH REGARD TO THE DIRECTION SOUGH T AND PROVIDED. THE FACTS OF THE CASE SHOWS THAT THE ASSESSEE HAS NOT BEEN PRO VIDED AN EFFECTIVE OPPORTUNITY OF BEING HEARD WITH REGARD TO DIRECTIONS ISSUED BY THE ASSESSING OFFICER, WHICH IS A MANDATORY REQUIREMENT OF LAW. THER EFORE, BY KEEPING IN VIEW OF ALL THESE FACTS, I RESTORE ALL THE ISSUES TO THE FILE OF THE ASSESSING OFFICER TO DECIDE DE NOVO AFTER GIVING ADEQUATE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DI RECTED TO COOPERATE WITH THE ASSESSING OFFICER IN DECIDING THE CASE IN ACCOR DANCE WITH LAW. IF THE ASSESSEE FAILS IN COOPERATING THE ASSESSING OFFICER THEN NO FURTHER ITA 577/JP/2016_ VISHAL THUKRAL VS ITO 5 OPPORTUNITY WOULD BE GIVEN TO HIM. ACCORDINGLY, THIS APPEAL IS RESTORE BACK TO THE FILE OF THE ASSESSING OFFICER. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 28/04/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28 TH APRIL, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI VISHAL THUKRAL, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD- BHIWADI, ALWAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 577/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR