Appeal details
Counselvise Citation
[2021] 109 COUNSELVISE.COM (IT) 5189 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 9 month(s) 2 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-01-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Assessment Year
2008-2009
Appeal Filed On
26-04-2019
Judgement Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH LANHI XLKA ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA -@ ITA NO. 590/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 MAHESH YADAV, A-225, JAI NAGAR, SIKAR ROAD, JAIPUR. CUKE VS. ITO, WARD-4(3), JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AATPY 9371 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI C.L. YADAV (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. MONISHA CHOUDHARY(ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/01/2021 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 28/01/2021 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 15/02/2019 FOR THE A.Y. 2008-09, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCE FURNISHED DURING THE COURSE OF APPELLATE PROCEEDINGS UNDER RULE 46A. 2. THE LD. CIT(A) HAS ERRED IN NOT ADJUDICATING THE ISSUE ON MERITS. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 46,27,571/- MADE BY THE AO. ON ACCOUNT OF UNEXPLAINED CASH DEPOSITED IN THE SAVING BANK ACCOUNT, IGNORING ITA 590/JP/2019_ MAHESH YADAV VS ITO 2 THE FACT THAT THE SAME WAS ON ACCOUNT OF BUSINESS RECEIPTS OF TRANSPORTATION. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT ADJUDICATING THE ISSUE ON ACCOUNT OF ADDITIONAL OF CONTRACT RECEIPTS OF RS. 1,18,661/- MADE BY THE A.O., WHEREAS THESE RECEIPTS ALREADY STOOD COVERED IN THE GROSS RECEIPTS CREDITED TO THE BOB ACCOUNT. 5. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITIONS MADE BY THE A.O. BY NOT PASSING A SPEAKING ORDER ON THE GROUND OF APPEAL FILED BEFORE HIM. 6. THE APPELLANT PRAYS YOU HONORS INDULGENCE TO ADD, AMEND OR ALTER ALL OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE THE DATE OF HEARING. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. 3. BRIEF FACTS OF THE CASE ARE THAT ON THE BASIS OF AIR INFORMATION, THE ASSESSEE DEPOSITED CASH OF RS. 46,27,571/- IN HIS SAVING BANK ACCOUNT MAINTAINED WITH ICICI BANK LTD. FURTHER AS PER 26AS DETAILS, THE ASSESSEE RECEIVED RS. 6,57,945/- FROM VARIOUS COMPANIES ON WHICH TDS HAS ALSO BEEN DEDUCTED. AS PER DETAILS AVAILABLE, THE ASSESSEE HAD NOT FILED THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, ON THE BASIS OF WHICH, THE A.O. ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) ON 13/03/2015. THE A.O. PASSED ASSESSMENT ORDER ON 17/03/2016 ASSESSING TOTAL INCOME OF ASSESSEE AT RS. 48,67,430/-. ITA 590/JP/2019_ MAHESH YADAV VS ITO 3 4. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A). THE LD. CIT(A) CONFIRMED THE ACTION OF THE A.O. BY HOLDING THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD FAILED TO EXPLAIN THE NATURE AND SOURCE OF THE CASH OF RS. 46,27,571/- DEPOSITED IN THE BANK ACCOUNT AND NO JUSTIFICATION FOR ADMITTING THE ADDITIONAL EVIDENCES FURNISHED DURING THE COURSE OF APPELLATE PROCEEDINGS UNDER RULE 46A HAS BEEN FILED BY THE ASSESSEE, THEREFORE, THE ADDITION OF RS. 46,27,571/- MADE BY THE A.O. IN RESPECT OF UNEXPLAINED CASH DEPOSITS MADE BY THE ASSESSEE IN THE BANK ACCOUNT IS HEREBY CONFIRMED. AGAINST THE SAID FINDING OF THE LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE ITAT BY TAKING THE GROUNDS MENTIONED ABOVE. 5. GROUND NO. 1 AND 2 OF THE APPEAL RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF THE LD. CIT(A) IN NOT ADMITTING THE ADDITIONAL EVIDENCE DURING THE COURSE OF APPELLATE PROCEEDINGS UNDER RULE 46A OF THE INCOME TAX RULES. IN THIS REGARD, THE LD AR APPEARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SAME ARGUMENTS AS WERE RAISED BEFORE THE LD. CIT(A) AND ALSO RELIED UPON THE WRITTEN SUBMISSIONS FILED BEFORE THE BENCH AND THE SAME IS REPRODUCED BELOW: 1.1 THE APPELLANT VERY HUMBLY SUBMITS THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD CERTAIN DISPUTE WITH HIS AR SHRI ITA 590/JP/2019_ MAHESH YADAV VS ITO 4 VIJAY SONI, REGARDING CHARGING OF FEE. THE AR HAD ALL THE DETAILS CALLED FOR BY THE AO WITH HIM, BUT HE DID NOT PRESENT THE SAME BEFORE THE AO. HE ALSO REFUSED TO GIVE NOC SO AS TO ENABLE THE APPELLANT TO APPOINT ANOTHER AR TO REPRESENT HIS CASE. WHEN THE AR DID NOT COMPLY TO THE NOTICES, FINALLY THE APPELLANT HAD TO TAKE CHARGE. HE SUBMITTED WHATEVER FACTS WERE WITHIN HIS KNOWLEDGE. THE LD.AO FINDING THEM INSUFFICIENT, MADE THE ADDITIONS. 1.2 AT THE TIME OF FIRST APPEAL, POA TO REPRESENT THE CASE WAS GIVEN TO SHRI NITESH AGARWAL CA. THE PEN DRIVE AND CERTAIN DOCUMENTS COLLECTED FROM SHRI VIJAY SONI WERE ALSO HANDED OVER TO HIM. ON THE BASIS OF THESE PAPERS, HE COLLECTED SUPPORTING DOCUMENTS TO REPRESENT THE CASE BEFORE THE CIT(A). ALL THESE DOCUMENTS WERE PRODUCED BEFORE THE LD. CIT(A) AS THESE WERE NECESSARY TO DECIDE THE APPEAL. THE LD.CIT(A) SENT THESE PAPERS TO THE AO FOR REMAND REPORT. 1.3 THE APPELLANT APPEARED BEFORE THE LD.AO ON THREE OCCASIONS (19.01.2019, 25.01.2019 AND 29.01.2019) HE PROVIDED ALL THE PAPERS IN SUPPORT OF HIS CASE COVERING THE GROUNDS OF APPEAL TO THE SATISFACTION OF THE AO. BUT THE AO DID NOT SUBMIT THE REMAND REPORT FOR REASONS BEST KNOWN TO HIM. 1.4 THE LD.CIT(A) ON PAGE-4 OF HIS ORDER OBSERVED AS FOLLOWS- 'THE WRITTEN SUBMISSION OF THE APPELLANT WAS FORWARDED TO THE AO CALLING FOR REMAND REPORT. THE AO IN SPITE OF HAVING BEEN ISSUED MORE THAN ONE REMINDER HAS NOT BOTHERED TO SEND THE REMAND REPORT. THE APPEAL CANNOT BE KEPT PENDING INDEFINITELY FOR WANT OF REMAND REPORT. THEREFORE, THE APPEAL ITA 590/JP/2019_ MAHESH YADAV VS ITO 5 IS BEING DECIDED IN THE ABSENCE OF REMAND REPORT OF THE AO, CONCLUDING THAT THE AO HAS NO COMMENT TO OFFER' 1.5 THE NON-SUBMISSION OF REMAND REPORT BY THE AO HAS BEEN USED TO THE DISADVANTAGE OF THE APPELLANT BY THE CIT(A). AS THE AO FAILED TO SUBMIT THE DESIRED REPORT, THE INFERENCE SHOULD HAVE BEEN DRAWN IN FAVOUR OF THE APPELLANT HOLDING THAT THE AO HAD NO VALID BASIS TO REBUT THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. 1.6 THE LD.CIT(A) DISMISSED THE APPEAL HOLDING THAT DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT HAD FAILED TO EXPLAIN THE NATURE AND SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT AND NO JUSTIFICATION FOR ADMITTING THE ADDITIONAL EVIDENCE UNDER RULE 46A HAS BEEN FILED DURING THE APPELLATE PROCEEDINGS. 1.7 THE ACTION OF THE LD.CIT(A) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. WHEN THE ADDITIONAL EVIDENCE WAS PRODUCED BEFORE THE CIT(A), HE ACCEPTED IT WITHOUT ANY OBJECTION AND IN FURTHERANCE OF HIS ACTION OF HAVING ACCEPTED THE SAME, HE FORWARDED IT TO THE AO FOR REMAND REPORT. THIS CLEARLY SHOWS HIS INTENTION THAT HE HAD ACCEPTED THE ADDITIONAL EVIDENCE AND HAD NO RESERVATIONS ABOUT IT. IF HE HAD ANY OBJECTION AS REGARDS ITS ADMITTANCE, THE APPELLANT WOULD HAVE JUSTIFIED IT THEN AND THERE. NOW, WHEN THE AO HAS FAILED TO SUBMIT THE REMAND, REPORT, THE CIT(A) IS OBJECTING THAT THE APPELLANT FAILED TO OFFER ANY JUSTIFICATION FOR ACCEPTING ADDITIONAL EVIDENCE. 1.8 THE ASSESSEE ALSO RESPECTFULLY DRAW YOUR HONORS KIND ATTENTION TOWARDS THE FOLLOWING DECISIONS WHICH SUPPORT THE CONTENTION OF THE APPELLANT ITA 590/JP/2019_ MAHESH YADAV VS ITO 6 1. CIT V. VIRGIN SECURITIES AND CREDITS P. LTD (2011) 332 ITR 396 (DEL) 2. CHANDRAKANT CHANU BHAI PATEL 202 TAXMAN 262(DEL) 3. AVAN GIDWANI VS ACTT I.T.A. NO. 5138/MUM/2015(ITAT MUMBAI) 4. ABHAY KUMAR SHROFF V/S. ITO 63 ITD 144(PAT) (ITAT PATNA IT IS FURTHER SUBMITTED THAT THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATJI, 167 ITR 471 (SC) HAVE HELD THAT WHEN TECHNICAL CONSIDERATIONS ARE PITTED AGAINST THE CAUSE OF SUBSTANTIAL JUSTICE IT IS THE CAUSE OF SUBSTANTIAL JUSTICE THAT MUST PREVAIL. HENCE, ADDITIONAL EVIDENCES BE ADMITTED AT ANY STAGE OF PROCEEDINGS WITH A MOTIVE TO PROVIDE JUSTICE. 6. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD. AS PER FACTS OF THE PRESENT CASE, WE NOTICED THAT THE ADDITIONS WERE MADE BY THE A.O. IN THE CASE OF ASSESSEE BY TREATING THE BANK DEPOSITS OF RS. 46,27,571/- AS UNEXPLAINED DEPOSIT U/S 68 OF THE ACT AS THE ASSESSEE COULD NOT FURNISH THE SUPPORTING DOCUMENTS AND THEREFORE, IN ABSENCE OF THOSE SUPPORTING DOCUMENTS, ADDED THESE AMOUNTS IN THE TOTAL INCOME OF THE ASSESSEE. DURING THE PENDENCY OF THE APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE FILED AN APPLICATION UNDER RULE ITA 590/JP/2019_ MAHESH YADAV VS ITO 7 46A OF THE INCOME TAX RULES FOR ADMITTING THE DOCUMENTS IN THE SHAPE OF ICICI BANK ACCOUNT SUMMARY FOR THE PERIOD, BANK OF BARODA ACCOUNT SUMMARY FOR THE PERIOD, ACCOUNT CONFIRMATION OF PARTY M/S FARIDABAD ASSAM ROADWAYS, FARIDABAD WITH PAN CARD COPY, ACCOUNT CONFIRMATION OF PARTY M/S BHAMRA ROAD LINES, DELHI WITH PAN CARD COPY, ACCOUNT CONFIRMATION OF PARTY M/S NEW SAINI COARGO CARIER, FARIDABAD WITH PAN CARD COPY, ACCOUNT CONFIRMATION OF PARTY M/S ALLIED TRANSPORT CO. P. LTD. DELHI WITH PAN CARD COPY, ACCOUNT CONFIRMATION OF PARTY M/S SIDDARTH TRANSPORT COMPANY, DEHRADUN WITH PAN CARD COPY AND ACCOUNT CONFIRMATION OF PARTY M/S NATIONAL ROAD CARRIER, LUDHIANA WITH PAN CARD COPY. HOWEVER, THE LD. CIT(A) FORWARDED THE WRITTEN SUBMISSIONS ALONGWITH THE DOCUMENTS TO THE A.O. AND CALLED FOR THE REMAND REPORT BUT THE A.O. HAVING BEEN ISSUED REMAINDERS, HAD NOT SUBMITTED REMAND REPORT. THEREFORE, THE LD. CIT(A) TOOK THE VIEW THAT THE APPEAL OF THE ASSESSEE COULD NOT BEEN KEPT PENDING INDEFINITELY FOR WANT OF REMAND REPORT, THEREFORE, THE LD. CIT(A) DECIDED TO ADJUDICATE THE APPEAL IN ABSENCE OF REMAND REPORT. IN OUR VIEW, WHILE DOING SO, THE NON- SUBMISSION OF REMAND REPORT BY THE A.O. WAS USED TO THE DISADVANTAGE OF THE ASSESSEE BY THE LD. CIT(A) AS THE A.O. FAILED TO SUBMIT THE DESIRES REPORT. THEREFORE, IN THAT EVENTUALITY, THE INFERENCE SHOULD HAVE BEEN DRAWN IN FAVOUR OF THE ASSESSEE AS THE A.O. HAD NO VALID BASIS OR REASONS ITA 590/JP/2019_ MAHESH YADAV VS ITO 8 TO REBUT THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE BUT BY DOING SO THE LD. CIT(A) HAD COMMITTED AN ERROR AND SIMPLY DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE NATURE AND SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT. 8. THE LD AR, IN ORDER TO SUPPORT HIS CONTENTION, HAS SPECIFICALLY PLEADED BEFORE US THAT THE ASSESSEE HAD CERTAIN DISPUTES WITH HIS AUTHORIZED REPRESENTATIVE REGARDING CHARGING OF FEE AND ALTHOUGH THE ASSESSEEE HAD ALL THE DETAILS CALLED FOR BY THE A.O. WITH HIM BUT HE COULD NOT PRODUCE THE SAME BEFORE THE A.O. AS THE SAID DETAILS WERE HANDED OVER TO THE ASSESSEE BY HIS AUTHORIZED REPRESENTATIVE. EVEN THE SAID AUTHORIZED REPRESENTATIVE HAD ALSO REFUSED TO GIVE NOC TO ENABLE THE ASSESSEE TO APPOINT ANOTHER AUTHORIZED REPRESENTATIVE TO REPRESENT HIS CASE. ALTHOUGH, BEFORE THE LD. CIT(A), ALL THOSE DOCUMENTS AS MENTIONED ABOVE HAD BEEN PLACED ON RECORD BY THE ASSESSEE AND THE LD. CIT(A) HAD ACCEPTED WITHOUT ANY OBJECTION AND IN FURTHERANCE OF HIS ACTION OF HAVING ACCEPTED THE SAME, HE FORWARDED IT TO THE A.O. FOR SEEKING HIS REMAND REPORT. THIS ACT OF THE LD. CIT(A) SHOWN HIS INTENTION THAT HE HAD ACCEPTED THE ADDITIONAL EVIDENCES AND HAD NO RESERVATIONS ABOUT IT BUT IN ABSENCE OF REMAND REPORT SUBMITTED BY THE A.O., THE LD. CIT(A) HAS TAKEN CONTRARY VIEW AND DISMISSED THE APPEAL OF THE ASSESSEE BY NOT ADMITTING ITA 590/JP/2019_ MAHESH YADAV VS ITO 9 THE DOCUMENTS SUBMITTED BY THE ASSESSEE WHICH IN OUR VIEW, IS NOT CORRECT. EVEN THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS MST. KATIJI 167 ITR 471 (SC ) HAD CATEGORICALLY HELD THAT TECHNICAL CONSIDERATIONS ARE PITTED AGAINST THE CAUSE OF SUBSTANTIAL JUSTICE IT IS THE CAUSE OF SUBSTANTIAL JUSTICE THAT MUST PREVAIL. THEREFORE, IN VIEW OF THE ABOVE PROPOSITION AS LAID DOWN BY THE HONBLE SUPREME COURT AND ALSO KEEPING IN VIEW THE PRINCIPLES LAID DOWN IN THE DECISIONS IN THE CASES OF CIT V. VIRGIN SECURITIES AND CREDITS P. LTD (2011) 332 ITR 396 (DEL), CHANDRAKANT CHANU BHAI PATEL 202 TAXMAN 262(DEL), AVAN GIDWANI VS ACTT I.T.A. NO. 5138/MUM/2015(ITAT MUMBAI) AND ABHAY KUMAR SHROFF V/S. ITO 63 ITD 144(PAT) (ITAT PATNA). WE ALLOW BOTH THESE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AND ADMIT THE DOCUMENTS PLACED ON RECORD BY THE ASSESSEE AS ADDITIONAL EVIDENCES. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE HAVE ADMITTED THE ADDITIONAL EVIDENCES, THEREFORE, THE MATTER IS REMANDED BACK TO THE A.O. FOR THE DECIDING THE ISSUE AFRESH. 9. SINCE, WE HAVE ALREADY REMANDED THE GROUND NO. 1 AND 2 OF THE APPEAL FOR AFTER ADMITTING THE ADDITIONAL EVIDENCES, THEREFORE, THE OTHER GROUNDS RAISED BY THE ASSESSEE ARE ALSO REMANDED BACK TO THE A.O. FOR DECIDING THE MATTER AFRESH ON MERIT AFTER PROVIDING REASONABLE AND ITA 590/JP/2019_ MAHESH YADAV VS ITO 10 EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO NOT TO TAKE UNNECESSARY ADJOURNMENTS WITHOUT ANY SUFFICIENT CAUSE AND REASON. WE ORDER ACCORDINGLY. 10. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JANUARY, 2021. SD/- SD/- FOE FLAG ;KNO LANHI XLKA (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/01/2021 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI MAHESH YADAV, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-4(3), JAIPUR. 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. 590/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR
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