Sh. Vikas Sharma, Jalandhar V. Income Tax Officer, Jalandhar

ITA 594/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8746 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 30-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BHAGAT
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: (CIRCUIT BENCH AT JALANDHAR) BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER, AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.594/ASR/2016 (ASSESSMENT YEAR-2009-10) SH. VIKAS SHARMA, WG-385, NIWAN SURAJ GANJ, JALANDHAR. PAN NO.AWIPS7405B (ASSESSEE) VS .. ITO-WARD III, (2), JALANDHAR. (REVENUE) ASSESSEE BY SHRI . M. R. BHAGAT, AR. REVENUE BY SMT. BALVINDER KAUR, DR. ORDER PER, A. D. JAIN, JUDICIAL MEMBER: THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009- 10 AGAINST THE LD. CIT(A)S ORDER DATED 5.09.2016. 2. THE LD. CIT(A), IN PARA 4.1 OF THE IMPUGNED ORDE R HAS OBSERVED THAT ON 01.09.2016, AFTER THREE ADJOURNMENTS, THE MATTER WA S FIXED FOR FURNISHING OF COUNTER COMMENTS BY THE ASSESSEE, TO THE REMAND REP ORT OF THE AO; THAT AGAIN, A REQUEST FOR ADJOURNMENT WAS RECEIVED; THAT THE LD. AR OF THE ASSESSEE WAS ASKED TO DATE OF HEARING 23.01.2017 DATE OF PRONOUNCEMENT 22 .02.2017 I.T.A NO.594/ASR/2016 2 WAIT FOR FIVE MINUTES AND WHEN CALLED AFTER FIVE MI NUTES, NO ONE WAS PRESENT TO TAKE THE DATE OR TO FILE ANY SUBMISSIONS. 3. IN THE PROCEEDINGS BEFORE THE LD. CIT(A), THE AS SESSEE FILED A PRINT OUT OF CASH BOOK TO SUBSTANTIATE THE SOURCES OF CASH DEPOS ITS. THE AO FURNISHED A REMAND REPORT IN THIS REGARD, OBJECTING TO THE ADMISSION O F THIS ADDITIONAL EVIDENCE. IT WAS IN THIS ACTION, THAT THE ASSESSEES COUNTER COMMENT S WERE REQUIRED. IN THE ABSENCE THEREOF, THE LD. CIT(A) REFUSED TO ADMIT THE ADDITI ONAL EVIDENCE AND PROCEEDED TO DISMISS THE ASSESSEES APPEAL, BY OBSERVING AS FOLL OWS: 4.4 AO HAS EXAMINED THE ADDITIONAL EVIDENCE FILED IN THE COURSE OF PRESENT PROCEEDINGS AND SUBMITTED THAT TH E CONTENTIONS OF THE APPELLANT COULD NOT BE SUBSTANTI ATE WITH EVIDENCE. I HAVE ALSO CONSIDERED AND GONE THROUGH T HE EVIDENCE BROUGHT ON RECORD BY THE APPELLANT AND FIN D THAT THE REQUEST OF THE APPELLANT FOR ADMISSION OF ADDITIONA L EVIDENCE HAS NOT BEEN SUBSTANTIATED WITH THE REASONS AND JUS TIFICATION FOR NON-SUBMISSION OF THE SAME EVIDENCE AT THE STAG E OF ASSESSMENT PROCEEDINGS. THEREFORE I DO NOT FIND ANY JUSTIFICATION IN ADMISSION OF THE ADDITIONAL EVIDEN CE AT THIS STAGE. 4.5 FURTHER, ON MERITS OF THE CASE, I FIND THAT CON TENTIONS OF THE APPELLANT COULD NOT BE SUBSTANTIATED WITH EVIDE NCE AVAILABLE ON RECORD. THE CONTENTION THAT CASH IN HA ND AND CASH I.T.A NO.594/ASR/2016 3 IN BANK HAS ALREADY BEEN DISCLOSED IN THE RETURN OF INCOME FILED COULD NOT BE SUBSTANTIATED WITH THE COPY OF R ETURN OF INCOME FILED (A COPY OF THE SAME WAS ENCLOSED BY TH E AO WITH THE REMAND REPORT). I FIND THAT IN THE RETURN OF IN COME, NO DETAILS OF CASH IN HAND AND CASH AT BANK HAVE BEEN FILED UP AND RATHER NIL HAS BEEN SHOWN AGAINST BOTH. FURTHER , I FIND THAT IN THE RETURN OF INCOME, IN COLUMN NUMBER 51 IN THE CASE WHERE REGULAR BOOKS OF ACCOUNT OF BUSINESS ARE NOT MAINTAINED, FURNISH THE FOLLOWING INFORMATION. A. GROSS RECEIPTS ; B. GROSS PROFIT; C. EXPENSES; D . NET PROFIT THESE FIGURES HAVE NOT BEEN FURNISHED BY THE APPELL ANT IN THE RETURN OF INCOME, WHICH ARE ESSENTIAL IN THE CASE, WHERE THE RETURN OF INCOME HAS BEEN FILED ON PRESUMPTIVE INCO ME BASIS. 4.6 THUS, ON THE BASIS OF ABOVE DISCUSSION, I HOLD THAT APPELLANT HAS FAILED TO FURNISH ANY CREDIBLE EVIDEN CE TO SUBSTANTIATE THE SOURCES OF CASH DEPOSITS IN THE BA NK ACCOUNT OF THE APPELLANT. THE EXPLANATION FURNISHED BY THE APP ELLANT THAT CASH DEPOSITS HAVE BEEN MADE OUT OF THE BUSINESS OF RECEIPTS DOES NOT STAND SUBSTANTIATED WITH THE HEARD EVIDENC E AVAILABLE ON RECORD. ACCORDINGLY, I FIND THAT AO WAS JUSTIFIE D IN HOLDING THE CASH DEPOSITS AS UNEXPLAINED INCOME OF THE APPE LLANT AND THEREFORE CONFIRM THE ADDITION OF RS.2,104,500/- MA DE BY THE AO UNDER HEAD. 4. IT IS SEEN THAT THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS AMOUNTS TO RS.21,04,500/-. A PRINT OUT OF CASH BOOK WAS PRODUCED BY WAY OF I.T.A NO.594/ASR/2016 4 ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A). HOWEVER, THE ASSESSEE HAD NOT EXPLAINED SUFFICIENT CAUSE FOR NOT PRODUCE THE EVID ENCE BEFORE THE AO, RESULTING IN THE REJECTION OF HIS REQUEST FOR ADMISSION OF ADDIT IONAL EVIDENCE, AS ALSO THE DISMISSAL OF HIS APPEAL. THE ASSESSEE WAS VISITED W ITH THIS CONSEQUENCE DUE TO NON AVAILABILITY OF ANYONE BEFORE THE LD. CIT(A) AT THE RELEVANT TIME AFTER FILING THE APPLICATION FOR ADJOURNMENT. THE LD. CIT(A) HAS HIM SELF OBSERVED THAT THERE WAS NOBODY PRESENT, EITHER TO TAKE THE DATE, OR TO FILE SUBMISSIONS. 5. THE CASE INVOLVES SUBSTANTIAL FINANCIAL IMPLICAT IONS EITHER WHERE I.E., IN THE EVENT OF THE ADDITION BEING SUSTAINED, AS HAS COME ABOUT, OR IF THE ADDITION WERE TO BE DELETED. THE ADDITIONAL EVIDENCE PRODUCED AS WEL L BE CRUCIAL IN THE MATTER, SUBJECT, OF COURSE, TO THE ASSESSEE SHOWING SUFFICI ENT CAUSE FOR NOT BEEN ABLE TO HAVE PRODUCED IT BEFORE THE AO. THEREFORE, IN THE I NTEREST OF JUSTICE, WE REMIT THIS APPEAL TO THE FILE OF THE LD. CIT(A), TO DECIDE IT AFRESH IN ACCORDANCE WITH LAW, ON AFFORDING ONE LAST OPPORTUNITY TO THE ASSESSEE TO F ILE HIS COUNTER COMMENTS TO THE AOS REMAND REPORT. THE LD. CIT(A) SHALL DECIDE THE MERITS OF THE ADDITION AFTER CONSIDERING THE ASSESSEES COUNTER COMMENTS, IF ANY ARE FILED BY THE ASSESSEE. THE ASSESSEE SHALL, NO DOUBT, TO CO-OPERATE IN THE FRES H PROCEEDINGS BEFORE THE LD. CIT(A) AND HE SHALL NOT SEEK ANY FURTHER UNNECESSAR Y FRIVOLOUS ADJOURNMENT. THIS REMAND IS BEING ORDERED AT THE RISK AND PERIL OF TH E ASSESSEE, AS MENTIONED. IT ALSO I.T.A NO.594/ASR/2016 5 GOES WITHOUT SHOWING THAT ALL PLEAS AVAILABLE TO TH E ASSESSEE UNDER THE LAW SHALL REMAIN SO AVAILABLE TO HIM. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/02/2017. SD/- SD/- (T. S. KAPOOR) (A.D. JAIN) ACCOUTANT MEMBER JUDICIAL MEMBER DATED 22/02/2017 *AKV* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT BY ORDER AR/SR.P.S./P.S. I.T.A NO.594/ASR/2016 6 DATE 1. DRAFT DICTATED (DNS) 09.02.2017 PS 2. DRAFT PLACED BEFORE AUTHOR 10.02.2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/A M 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.