Pradeepkumar Salekchand Agarwal, Pune V. Deputy Commissioner of Income-tax, Circle - 11 (1), Pune

ITA 591/PUN/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9683 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 03-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Assessee Lawyers: B C MALAKAR
• Keywords: Business income; Opportunity of being heard
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.591/PUN/2018 / ASSESSMENT YEAR : 2011-12 SHRI PRADEEPKUMAR SALEKCHAND AGARWAL. D-1201 SHANTA MONIKA BLD. CALIFORNIA SOCIETY, UNDRI, NIBM ROAD, KONDWA, PUNE-411 060. PAN : AARPA6940Q .... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 11(1), PUNE. / RESPONDENT ASSESSEE BY : SHRI B.C. MALAKAR REVENUE BY : SHRI M.K. VERMA / DATE OF HEARING : 12.12.2018 ! / DATE OF PRONOUNCEMENT : 13.12.2018 / ORDER PER R.S. SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE EX-PARTE ORDER PASSED BY THE CIT(APPEALS)-7, PUNE ON 20.06.2017 IN RELATION TO THE ASSESSMENT YEAR 2011-12. 2 ITA NO. 591/PUN/2018 A.Y.2011-12 2. BRIEFLY STATED THE RELEVANT FACTS OF THE CASE AR E THAT THE ASSESSEE DECLARED AGRICULTURAL INCOME OF RS.21,88,928/-. THE ASSESSING OFFICER REQUESTED THE ASSESSEE TO FILE CERTAIN DETAILS, AS HAVE BEEN EXTRACTED AT PAGE 2 OF THE ASSESSMENT ORDER. THE ASSESSEE COULD FILE ONLY SOME OF THE DETAILS. THE ASSESSING OFFICER ISSUED LETTERS U/S. 133(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) CALLING INFORMATION FROM THE PERSONS TO WHOM ASSESSEE CLAIMED TO HAVE S OLD THE AGRICULTURAL PRODUCE. REPLIES WERE RECEIVED ALONG WITH BANK ACCOUNT STATEMENTS. ON PERUSAL OF SUCH DETAILS, IT WAS FOUN D THAT CORRESPONDING CASH DEPOSITS WERE MADE IN THE BANK ACCOUNTS PRECED ING A DAY OR TWO OF THE ISSUE OF CHEQUES TO THE ASSESSEE. THIS MATTE R WAS DISCUSSED BY THE AO WITH THE LD. AR ON 26.03.2014. THE ASSESSING OFFICER HAS REPRODUCED THE ORDER SHEET ENTRY DATED 26.03.2014 I N THE ASSESSMENT ORDER. CONSIDERING THESE FACTS, THE ASSESSING OFFIC ER MADE AN ADDITION OF RS.15,25,000/- WHICH WAS CLAIMED BY ASSESSEE AS AGRICULTURAL INCOME TO THAT EXTENT. 3. THE LD. CIT(APPEALS) IN AN EX-PARTE ORDER CONFIRMED THE ADDITION NOTICING THAT THE ASSESSEE AGREED TO THE ADDITION B EFORE THE ASSESSING OFFICER VIDE ORDER SHEET ENTRY DATED 26.03.2014. TH E ASSESSEE HAS APPROACHED THE TRIBUNAL AGAINST THE FINDING RECORDE D BY THE LD. CIT (APPEALS) IN THE IMPUGNED ORDER. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE LEVANT MATERIAL AVAILABLE ON RECORD. THE FIRST THING TO BE DECIDED IS IF THE ASSESSEE AGREED FOR THE ADDITION BEFORE THE AO. THE LD. CIT( A) HAS REFERRED TO THE 3 ITA NO. 591/PUN/2018 A.Y.2011-12 ORDER SHEET ENTRY DATED 26.03.2014 FOR REACHING THE CONCLUSION AGAINST THE ASSESSEE, WHICH IS REPRODUCED AS UNDER:- 26.03.2014 SHRI PRADEEP SALEKCHAND AGARWAL, THE ASSESS EE ALONGWITH SHRI RAJENDRA DAVE THE ACCOUNTANT OF THE PR OPRIETARY CONCERN OF THE ASSESSEE APPEARED. THE INFORMATION RECEIVED FROM THE ENTITIES, INCOME FR OM WHICH HAS BEEN CLAIMED AS AGRICULTURAL INCOME BY THE ASSESSEE I S HANDED OVER TO THE ASSESSEE, DETAILS ARE AS UNDER: I) SAI SAMARTH FRUIT COMPANY- MR. ASHWANI NANWARE II) SAI SAMARTH FLORITECH- MR. KIRAN NANAWARE III) TRIMURTI PUSHPA BHANDAR- DO- IV) PANDIT MOTIRAM GHUGE- PANDIT GHUGE ON PERUSAL OF THE INFORMATION SO SUPPLIED FROM ENTIT IES AS ABOVE, IT IS SEEN THAT AS PER THE BANK STATEMENTS SUPPLIED THERE ARE CORRESPONDING CASH DEPOSITS IMMEDIATELY PRECEDING A D AY OR TWO. ACCORDINGLY, THE SAME WAS INFORMED AND AN OPPORTUNITY FOR CROSS EXAMINATION/VERIFY THE SAID TRANSACTIONS, PRESUMABLY APPEARING TO BE THE ONES OF DEPOSING CASH AND RECEIVING THE MONE Y THROUGH CHEQUE HAS BEEN AFFORDED. SUCH TRANSACTIONS ARE TABULATE D AS UNDER: DATE TRANSACTION AMOUNT SAI SAMARTH FLORITECH 07.09.2010 CASH DEPOSIT RS.2,00,000/- 07.09.2010 PRADEEP AGARWAL RS.2,00,000/- 24.02.2011 CASH DEPOSIT RS.4,25,000/- 24.02.2011 PRADEEP AGARWAL RS.4,25,000/- TRIMURTI PUSHPA BHANDAR 20.08.2010 CASH DEPOSIT RS.2,00,000/- 21.08.2010 PRADEEP AGARWAL RS.1,00,000/- 21.08.2010 MAHESH AGARWAL RS.1,00,000/- 27.08.2010 CASH DEPOSIT RS.3,00,000/- 27.08.2010 P.S. AGARWAL RS.2,00,000/- P. MOTIRAM GHUGE 04.03.2011 CASH DEPOSIT RS.2,00,000/- 07.03.2011 CASH DEPOSIT RS.3,00,000/- 08.03.2011 M.P. AGARWAL RS.2,50,000/- 08.03.2011 P.S. AGARWAL RS.2,50,000/- ACCORDINGLY, THEY WERE CONTENDED, AS PER THE MODUS O PERANDI ABOVE, THIS APPEARS TO BE CLEAR CASE OF ADVANCING CAS H AND GETTING CHEQUE IN RETURN TO CLAIM TAX EXEMPTION AND AS TO WHY THE AMOUNTS AS ABOVE BEING TOTAL AT RS.15,25,000/- BE NOT TR EATED AS INCOME OTHER THAN AGRICULTURAL OUT OF THE TOTAL INCOM E OF RS.21,88,928/- BE TREATED AS NORMAL BUSINESS INCOME, TO WHICH THEY AGREED. 4 ITA NO. 591/PUN/2018 A.Y.2011-12 5. ON GOING THROUGH THE ABOVE ORDER SHEET ENTRY IN ENT IRETY, IT BECOMES APPARENT THAT THE LD. AR DID NOT AGREE AS H AS BEEN HELD BY THE LD. CIT(APPEALS) IN THE IMPUGNED ORDER. SINCE THE A PPELLATE ORDER IS BASED ON SUCH AN ALLEGED AGREEMENT FOR ADDITION, WH ICH FACT DOES NOT ACTUALLY EXIST, I AM OF THE CONSIDERED OPINION THAT IT WOULD BE JUST AND FAIR IF THE IMPUGNED ORDER IS SET-ASIDE AND THE MAT TER IS RESTORED TO THE FILE OF THE LD. CIT(A). I ORDER ACCORDINGLY AND DIR ECT HIM TO DECIDE THE APPEAL AFRESH AS PER LAW AFTER ALLOWING A REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED ON 13 TH DAY OF DECEMBER, 2018. SD/- R.S. SYAL /VICE-PRESIDENT ' / PUNE; #$ / DATED : 13 TH DECEMBER, 2018. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-7, PUNE. 4. THE CIT-6, PUNE. 5. &'( ) , ) , - * + , , ' / DR, ITAT, SMC BENCH, PUNE. 6. (- ./ / GUARD FILE. // TRUE COPY // $'0 / BY ORDER, 1 ), / PRIVATE SECRETARY ) , ' / ITAT, PUNE. 5 ITA NO. 591/PUN/2018 A.Y.2011-12 * * DATE 1 DRAFT DICTATED ON 12.12.2018 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 12.12.2018 SR. PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 DATE OF UPLOADING OF ORDER SR. PS/PS 8 FILE SENT TO BENCH CLERK SR. PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER