Susil Kumar Mohanty, Bhubaneswar V. ITO, Ward-1(2), Bhubaneswar

ITA 58/CTK/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3148 (ITAT-CUTTACK)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 13-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Reasonable cause
• Section: 142(1); 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PA V AN KUMAR GADALE, JM . / ITA NO. 58 /CTK/201 8 ( [ [ / ASSESSMENT YEAR : 20 1 1 - 20 1 2 ) SRI SUSIL KUMAR MOHANTY , PLOT NO.61/143, DIBYA VIHAR, MAHABHOI SASAN, BHUBANESWAR - 751002 VS. ITO, WARD - 1(2), BHUBANESWAR ./ ./ PAN/GIR NO. : BLBPM 9070 R ( / APPELLANT ) .. ( / RESPONDENT ) [ /AS SESSEE BY : SHRI P.K. MISHRA , AR /REVENUE BY : SHRI SUBHENDU DUTTA , DR / DATE OF HEARING : 2 7 / 0 8 /201 8 / DATE OF PRONOUNCEMENT 27 / 0 8 /201 8 / O R D E R PER SHRI PA V AN KUMAR GADALE, JM : TH IS IS AN APPEAL FILED BY TH E ASSESSEE AGAINST THE ORDER OF CIT(A) - 1 , BHUBANESWAR , DATED 05.10.2015 PASSED IN I.T.APPEAL NO. 0062 / 14 - 15 FOR THE ASSESSMENT YEAR 201 1 - 201 2 . 2. LD. AR FOR THE ASSESSEE HAS FILED AN ADJOURNMENT PETITION STATING THEREIN THAT REQUIRED PAPERS AND INFORMATION IN THE MATTER COULD NOT BE COLLECTED FROM THE ASSESSEE AS HE IS OUT OF STATION FOR MEDICAL TREATMENT OF HIS MOTHER , WHICH IN OUR OPINION, IS NOT A PLAUSIBLE ONE, ACCORDINGLY WE REJECT THE ADJOURNMENT PETITION AND APPEAL IS HEARD FINALLY. 3 . THE ASSESSEE HA S RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT, THE IMPUGNED ORDER OF ASSESSMENT PASSED BY THE FORUMS BELOW ARE NOT JUST AND PROPER UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AS SUCH THE ADDITIONS MADE THEREIN ARE LIABLE TO BE DELE TED IN THE INTEREST OF JUSTICE. 2. FOR THAT, THE LEARNED C.I.T.(A) HAS COMMITTED GROSS ERROR IN DISMISSING THE APPEAL AND CONFIRMING THE ADDITION OF SUNDRY ITA NO. 58 /CTK/201 8 2 CREDITORS TO THE TUNE OF RS.23,31,543.00 MADE BY THE LEARNED A.O., TREATING THE SAME UNEXPLAINE D CASH CREDIT U/S.68 OF THE ACT, PARTICULARLY WHEN, THE SAID SECTION HAS NO APPLICATION TO THE FACT OF THE CASE, AS SUCH, THE IMPUGNED ADDITION NEEDS TO BE DELETED IN THE INTEREST OF JUSTICE. 3. FOR THAT, SINCE SECTION 68 OF THE ACT HAS NO APPLICATIO N TO THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE FINDINGS GIVEN BY THE LEARNED C.I.T.(A) ARE CONTRARY TO THE SETTLED PRINCIPLES OF LAW, AS SUCH, THE ADDITION MADE ON APPLICATION OF 68 OF THE ACT BEING NOT SUSTAINABLE IS LIABLE TO BE DELETED IN THE INTEREST OF JUSTICE. 4. FOR THAT, THE FINDINGS GIVEN BY THE LEARNED C.I.T.(A), WHILE DISMISSING THE APPEAL OF THE APPELLANT BEING ERRONEOUS AND ILLEGAL AND CONTRARY TO THE FACTS ON RECORD, NEEDS TO BE REJECTED IN THE INTEREST OF JUSTICE. 5. FOR THAT, YOUR APPELLANT CRAVES LEAVE OF THIS HON'BLE TRIBUNAL TO URGE ANY OTHER GROUNDS, IF ANY, AT THE TIME OF HEARING IN THE INTEREST OF JUSTICE AND EQUITY. 4 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 31.03.2013 FOR THE A .Y. 201 0 - 201 1 DECLARING TOTAL INCOME OF RS. 1,84,010/ - . THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. S UBSEQUENTLY THE CASE WAS SELECTED UNDER SCRUTINY UNDER CASS AND NOTICES U/S.143(2) & 142(1) OF THE ACT WERE ISSUED. IN COMPLIANCE OF THE SAME, LD. AR APPEARED BEFORE THE AO AND CASE WAS DISCUSSED. THEREAFTER T HE AO COMPLETED THE ASSESSMENT ASSESSING TOTAL INCOME AT RS. 25,58,060/ - AND PASSED ORDER U/S.143(3) OF THE ACT , DATED 31.03.2014 MAKING ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT OF RS.23,31,543/ - . 5 . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). IN THE APPELLATE PROCEEDINGS , THE ASSESSEE HAS NOT COMPLIED THE STATUTORY NOTICE, THEREFORE, THE CIT(A) AFTER CONSIDERING THE FINDINGS OF TH E AO, DISMISSED THE APPEAL OF THE ASSESSEE. ITA NO. 58 /CTK/201 8 3 6 . AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 7 . BEFORE US, AT THE TIME OF HEARING LD. AR OF THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE CIT(A) IS AN EX - PARTE ORDER AND , THEREFORE PRAYED FOR OPPORTUNITY TO REPRESENT THE CASE BEFORE THE CIT(A). 8 . CONTRA, LD.DR VEHEMENTLY OBJECTED TO THE SUBMISSIONS OF THE ASSESSEE AND PRAYED THAT THE ASSESSEE HAS NOT COMPLIED THE HEARING NOTICE AND AGAIN PRAYING FOR OPPORT UNITY WITHOUT EXPLAINING THE REASONABLE CAUSE. 9 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. W E FOUND THAT THE LD. CIT(A) HAS REFERRED TO THE HEARING DATES POSTED ON 08.06.2015, 24.06.2015, 07.08.2015, 24.08.2015 & 07.0 9.2015 . PRIMA FACIE IT SHOWS THAT THE ASSESSEE HAS NOT MADE A VIGILANT ATTEMPT TO APPEAR BEFORE THE APPELLATE AUTHORITIES. THEREFORE, WE CONSIDERING THE APPARENT FACTS AND ALSO THE CONDUCT OF THE ASSESSEE IN NON - COMPLIANCE WITH THE DATE OF HEARING AND K EEP ING IN VIEW THE ABOVE BACK GROUND OF THE CASE AND ALSO THE PRAYER OF THE ASSESSEE IN THE INTEREST OF RENDERING SUBSTANTIAL JUSTICE, ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT NO LOSS WILL BE CAUSED TO THE REV ENUE IF ONE MORE OPPORTUNITY IS ALLOWED TO THE ASSESSEE TO PRESENT ITS APPEAL BEFORE THE CIT(A). BUT, KEEPING IN VIEW THE CONDUCT OF THE ASSESSEE BEFORE THE CIT(A), WE DIRECT THE ASSESSEE TO DEPOSIT RS. 5 000/ - (RUPEES FIVE THOUSAND ONLY) BY WAY OF COST TO T HE DEPARTMENT WITHIN A PERIOD OF ONE MONTH FROM THE DATE OF THIS ORDER AND ITA NO. 58 /CTK/201 8 4 THE ASSESSEE SHALL PRODUCE A COPY OF RECEIPT OF PAYMENT OF COST AS EVIDENCE BEFORE THE CIT(A). 10 . WITH THE ABOVE DIRECTION, APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF C IT(A) TO DISPOSE OFF THE APPEAL OF THE ASSESSEE AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS MADE CLEAR THAT THE CIT(A) SHALL BE AT LIBERTY TO PASS ANY ORDER AS HE MAY DEEM FIT IN THE MATTER, IF THE ASSESSEE FAILS TO C OOPERATE WITH HIM ON THE DATES OF HEARING FIXED BY HIM. WE ORDER ACCORDINGLY. 1 1 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 27 / 08 / 201 8 . S D/ - ( N.S.SAINI ) SD/ - ( PAVAN K UMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 27 / 08 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPEL LANT - SRI SUSIL KUMAR MOHANTY, PLOT NO.61/143, DIBYA VIHAR, MAHABHOI SASAN, BHUBANESWAR - 751002 2. / THE RESPONDENT - ITO, WARD - 1(2), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. [ / GUARD FILE. //TRUE COPY//