SHRI SHARAD KUMAR JAIN, Mandsaur V. THE ITO, Mandsaur

ITA 598/IND/2014

• Counselvise Citation: 59822714 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 19-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNI
• Assessee Lawyers: S S DESHPANDE
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 133A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO.598/IND/2014 A.Y. : 2005-06. SHRI SHARAD KUMAR JAIN, ITO, MANDSAUR MANDSAUR VS. APPELLANT RESPONDENT PAN NO.AFXP J6934Q I.T.A.NO.599/IND/2014 A.Y. : 2005-06. SHRI SUNIL KUMAR JAIN, ITO, MANDSAUR MANDSAUR VS. APPELLANT RESPONDENT PAN NO. AFXPJ6922L A PPELLANT S BY : SHRI S.S.DESHPANDE, CA RESPONDENT BY : SHRI R. A. VERMA, DR SHRI SHARAD KUMAR JAIN AND SHRI SUNIL KUMAR JAIN, I.T.A.NOS. 598 & 599/IND/2014 A.Y 2005-06 2 2 O R D E R THESE TWO APPEALS BY THE ASSESSEES ARE DIRECTED AGA INST THE ORDERS OF CIT(A), UJJAIN, BOTH DATED 27.06.2014 FOR THE ASSESSMENT YEAR 2005-06. SINCE COMMON GROUN DS ARE INVOLVED, WE ARE DISPOSING OF BOTH THESE APPEALS BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE BRIEF FACTS IN THE CASE OF SHRI SHARAD KUMAR, I.T.A.NO. 598/IND/2014, ARE AS UNDER. 3. THE SURVEY U/S 133A OF INCOME-TAX ACT, 1961, HAS BEEN CARRIED OUT AT THE BUSINESS PREMISES OF THE AS SESSEE ON 30.01.2005. DURING THE COURSE OF SURVEY, THE ASSESS EE HAS DECLARED AN AMOUNT OF RS. 12,00,000/- AS ADDITIONAL INCOME. THE BIFURCATION OF ADDITIONAL INCOME DECLARED IS AS UNDER :- DATE OF HEARING : 15. 10 .2015 . DATE OF PRONOUNCEMENT : 02.11 . 2015 SHRI SHARAD KUMAR JAIN AND SHRI SUNIL KUMAR JAIN, I.T.A.NOS. 598 & 599/IND/2014 A.Y 2005-06 3 3 (I) EXCESS CASH FOUND RS. 3,00,000/- (II) INVESTMENT IN AGRICULTURAL LAND RS. 2,00,000/- (III) INVESTMENT IN STOCK RS. 2,00,000/- (IV) PROMISSORY NOTES- LOAN GIVEN RS. 2,00,000 (V) INVESTMENT IN HOUSE RS. 3,00,000/- TOTAL RS.12,00,000/- 4. THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME ON DUE DATE. THEREFORE, NOTICE U/S 148 OF INCOME-TAX ACT, 1961. DATED 31.08.2006 WAS ISSUED. THE ASSESSEE HAS FILED THE R ETURN OF INCOME ON 31.03.2007 DECLARING TOTAL INCOME OF RS. 4,55,000/-. THE ASSESSEE HAS NOT DISCLOSED IN HIS R ETURN OF INCOME THE TRUE DISCLOSURES MADE DURING THE COURSE OF SURVEY PROCEEDINGS U/S 133A. IT IS TO BE MENTIONED HERE TH AT THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME VOLUNTA RILY. THE AO HAVE TO ISSUE NOTICE U/S 148 IN ORDER TO OBTAIN THE RETURN OF INCOME FROM THE ASSESSEE. THE UNDER SIGNED HAS CALL ED THE CASE RECORDS OF THE ASSESSEE AND OBSERVED THAT THE ASSESSEE HAS DELIBERATELY DID NOT COMPLY TO THE NOTICES ISSU ED TIME TO TIME BY THE AO. SHRI SHARAD KUMAR JAIN AND SHRI SUNIL KUMAR JAIN, I.T.A.NOS. 598 & 599/IND/2014 A.Y 2005-06 4 4 S.NO. DATE OF NOTICE DATE OF COMPLIANCE REASONS FOR ADJOURNMENT 1. 31.07.2007 16.08.2007 NO COMPLIANCE WAS MADE 2. 08.10.2007 18.10.2007 NO COMPLIANCE WAS MADE 3. 22.10.2007 31.10.2007 NO COMPLIANCE WAS MADE 4. 05.11.2007 19.11.2007 NO COMPLIANCE WAS MADE 5. THE BRIEF FACTS IN THE CASE OF SHRI SUNIL KUMAR, I.T.A.NO. 599/IND/2014, ARE AS UNDER. 6. THE SURVEY U/S 133A OF INCOME-TAX ACT, 1961, HAS BEEN CARRIED OUT AT THE BUSINESS PREMISES OF THE AS SESSEE ON 30.01.2005. DURING THE COURSE OF SURVEY, THE ASSESS EE HAS DECLARED AN AMOUNT OF RS. 8,00,000/- AS ADDITIONAL INCOME. THE BIFURCATION OF ADDITIONAL INCOME DECLARED IS AS UNDER :- (I) EXCESS CASH FOUND RS. 2,50,000/- (II) INVESTMENT IN AGRICULTURAL LAND RS. 1,00,000/- (III) INVESTMENT IN JEEP RS. 1,50,000/- (IV) INVESTMENT ON ACCOUNT OF LOAN GIVEN RS. 1,50,000 (V) INVESTMENT IN STOCK RS. 1,50,000/- TOTAL RS.8,00,000/- SHRI SHARAD KUMAR JAIN AND SHRI SUNIL KUMAR JAIN, I.T.A.NOS. 598 & 599/IND/2014 A.Y 2005-06 5 5 7. THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME ON DUE DATE. THEREFORE, NOTICE U/S 148 OF INCOME-TAX ACT, 1961, DATED 31.08.2006 WAS ISSUED. THE ASSESSEE HAS FILED THE R ETURN OF INCOME ON 31.03.2007 DECLARING TOTAL INCOME OF RS. 1,92,192/-. THE ASSESSEE HAS NOT DISCLOSED IN HIS R ETURN OF INCOME THE TRUE DISCLOSURES MADE DURING THE COURSE OF SURVEY PROCEEDINGS U/S 133A. IT IS TO BE MENTIONED HERE TH AT THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME VOLUNTA RILY. THE AO HAVE TO ISSUE NOTICE U/S 148 IN ORDER TO OBTAIN THE RETURN OF INCOME FROM THE ASSESSEE. THE UNDER SIGNED HAS CALL ED THE CASE RECORDS OF THE ASSESSEE AND OBSERVED THAT THE ASSESSEE HAS DELIBERATELY DID NOT COMPLY TO THE NOTICES ISSU ED TIME TO TIME BY THE AO. S.NO. DATE OF NOTICE DATE OF COMPLIANCE REASONS FOR ADJOURNMENT 1. 31.07.2007 16.08.2007 NO COMPLIANCE WAS MADE 2. 08.10.2007 18.10.2007 NO COMPLIANCE WAS MADE 3. 22.10.2007 31.10.2007 NO COMPLIANCE WAS MADE 4. 05.11.2007 19.11.2007 NO COMPLIANCE WAS MADE SHRI SHARAD KUMAR JAIN AND SHRI SUNIL KUMAR JAIN, I.T.A.NOS. 598 & 599/IND/2014 A.Y 2005-06 6 6 8. ON THE BASIS OF ABOVE FACTS, IT IS EVIDENT THAT CL EAR THAT THE ASSESSEE IS NOT INTERESTED IN FILING ANY D ETAILS DURING THE ASSESSMENT PROCEEDINGS AND AVAIL THE OPPORTUNIT Y UNDER THE PRINCIPLES OF NATURAL JUSTICE. THE CONDUCT OF T HE ASSESSEE SHOWS THAT HE HAS NO RESPECT FOR THE LEGAL PROCEEDI NGS AND IS HABITUAL OFFENDER IN NOT COMPLYING WITH THE VARIOUS PROCEEDINGS UNDER THE INCOME-TAX ACT, 1961. 9. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS DISMISSED BOTH THE APPEALS OF THE ASSESSEE. 10. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE ASSESS EE DID NOT REMAIN PRESENT BEFORE THE AO. BEFORE THE CIT(A), TH E ASSESSEE HAS SUBMITTED ALL THESE EVIDENCE AND THE LD. CIT(A) HAS NOT CONSIDERED THE REMAND REPORT AND SIMPLY ON THE GROU ND THAT IT IS NOT ACCEPTED, THE LD. CIT(A) HAS DISMISSED THE A PPEALS OF THE ASSESSEES. 11. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT TH E LD. CIT(A) HAS NOT ACCEPTED THE REMAND REPORT, THOUGH T HE SHRI SHARAD KUMAR JAIN AND SHRI SUNIL KUMAR JAIN, I.T.A.NOS. 598 & 599/IND/2014 A.Y 2005-06 7 7 INTEREST INCOME OF RS. 18,000/- WAS DECLARED IN THE RETURN OF INCOME AND PROPER CREDIT OF TAX PAID WILL BE GIVEN AFTER CHALLAN. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE MATTER REQUIRES TO BE RESTORED BACK TO THE FILE OF AO TO PASS THE FRESH ORDER, SO THAT THE ASSESSEE CAN SUBMIT AL L THE RELEVANT DOCUMENTS AND AO CAN PASS THE ORDER FRESH. 12. THE LD. DR OBJECTED. 13. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND THAT THE THAT IN THIS CASE, THE ASSESSEE DID NOT REMAIN PRESENT BEFORE THE AO. THE ASSESSEE HAS GIVEN WRITTEN SUBMI SSION WITH DOCUMENTARY EVIDENCE AND THEREAFTER, THE AO HAS GIV EN THE REMAND REPORT. I HAVE GONE THROUGH THE ASSESSMENT O RDERS AND CIT(A)S ORDERS AND REMAND REPORT AND I AM OF THE VIEW THAT THE ASSESSEES HAVE PRODUCED SOME OF THE EVIDEN CE, WHICH REQUIRES VERIFICATION ON THE PART OF THE AO AND THE EXACT ASSESSMENT CAN BE MADE IN THESE CASES. THEREFORE, I N THE INTEREST OF JUSTICE AND FAIR PLAY, I RESTORE THIS M ATTER BACK TO SHRI SHARAD KUMAR JAIN AND SHRI SUNIL KUMAR JAIN, I.T.A.NOS. 598 & 599/IND/2014 A.Y 2005-06 8 8 THE FILES OF THE AO TO DECIDE THE MATTER AFRESH AFT ER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. 14. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES AR E ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OP EN COURT ON 2 ND NOVEMBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 2 ND NOVEMBER, 2015. CPU* 1526