Meena Jaiswal, Kanpur V. Income Tax Officer-2(2), Kanpur

ITA 602/LKW/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4851 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.602/LKW/2014 ASSESSMENT YEAR 2008-09 INCOME TAX OFFICER 2(2) 16/69, AYAKAR BHAWAN, CIVIL LINES, KANPUR VS MEENA JAISWAL, 111/128, HARSH NAGAR, KANPUR PAN AGBPJ 1765 J (RESPONDENT) (APPELLANT) SHRI ABHINAV MEHROTRA, ADVOCATE APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 0 4 / 1 1 /2015 DATE OF HEARING 01/01/2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT (A)-II, KANPUR DATED 28.03.2014 FOR THE AY 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 231290/- BEING THE A MOUNT RECEIVED BACK FROM THE EMPLOYEE/PERSONS TO WHOM THE MONEY WAS GIVEN FOR DEPOSIT IN BANK ACCOUNT OR FOR EXPENSES OR AS ADVANCE . 2. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW IN REJEC TING THE ADDITIONAL EVIDENCES WITHOUT REASONABLE GROUNDS WHI LE THE ASSESSEE COULD NOT FILE THESE EVIDENCES BEFORE LD. ASSESSING OFFICER DUE TO REASONS BEYOND HER CONTROL . 2 3. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW AND ON F ACTS AS HE FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE COU LD NOT PRODUCE EVIDENCES BEFORE ASSESSING OFFICER BECAUSE THE ASSESSSE'S BUSINESS WAS CLOSED IN 2009, DUE TO NOT GETTING THE LICENSE FROM THE GOVT, AND THE CONCERNED PERSON S WERE NOT IN TOUCH WITH THE ASSESSEE AND EVIDENCES C OULD NOT BE COLLECTED FROM THEM IMMEDIATELY. 4. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW IN REJEC TING THE EXPLANATION OF THE ASSESSEE THAT THE ASSESSEE WAS PREVENTED BY THE CIRCUMSTANCES, BEYOND HER CONTROL, TO PRODUCE THE EVIDENCES AND PERSONS BEFORE THE ASSESS ING OFFICER. 5. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW AND ON F ACTS AND VIOLATED THE PRINCIPLES OF NATURAL JUSTICE IN NOT A LLOWING AN OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE THE CLA IM OF THE ASSESSEE BY PRODUCING THE EVIDENCES AND CONCERN ED PERSONS, WHICH THE ASSESSEE COULD NOT DO BEFORE THE LD. ASSESSING OFFICER DUE TO CIRCUMSTANCES BEYOND HER CONTROL, IN SPITE OF SPECIFIC REQUEST MADE BY THE A SSESSEE. 6. BECAUSE THE 'CIT(A)' HAS FAILED TO APPRECIATE T HE FACT THAT THE AMOUNT OF RS. 198000/- WAS CASH RETURNED B Y MR, AMAR SINGH, EMPLOYEE OF THE ASSESSEE, WHICH WAS GIV EN TO HIM FOR DEPOSIT IN BANK, WHICH HE COULD NOT DEPO SIT IN THE BANK FOR ANY REASON AND RETURNED THE CASH TO TH E ASSESSEE. IN THIS CASE THERE, IS NO NEED TO PROVE T HE IDENTITY, CREDITWORTHINESS AND GENUINENESS AS MR. A MAR SINGH HAS NOT GIVEN ANY LOAN/ADVANCE TO ASSESSEE. T HE DECISION OF CIT(A), SUSTAINING THE ADDITION, IS AGA INST LAW AND FACT. 7. BECAUSE THE 'CIT(A)' FAILED TO APPRECIATE THE F ACT THAT THE AMOUNT REFUNDED BY SHRI SANJAI AMOUNTING TO RS. 18290.80 WAS PART OF THE ADVANCE OF RS. 30000/-GIVE N TO HIM FOR PAYMENT TO SUPPLIERS. IN THIS CASE ALSO, TH ERE IS NO NEED TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS AS MR. SANJAI HAS NOT GIVEN ANY LOAN/AD VANCE TO ASSESSEE. THE DECISION OF CIT(A), SUSTAINING THE ADDITION, IS AGAINST LAW AND FACT. 3 3. IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE CIT(A) ARE AVAILABLE IN THE PAPER BOOK ON PAGES 1 TO 19 AND IN PARTICULAR, HE DRAWN OUR ATTENTION TO PARA 1 2 OF THE WRITTEN SUBMISSIONS AVAILABLE ON PAGE 3 OF THE PAPER BOOK AND POINTED O UT THAT IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE LD. CIT(A) THAT THE ASSESSEE IS IN TOUCH WITH THE CONCERNED PERSONS AND THE ASSESSEE IS NOW READY TO PRODUCE TH ESE PERSONS AND ALSO SUBMITTED THEIR AFFIDAVITS AS ADDITIONAL EVIDENCE A ND REQUESTED THE CIT (A) TO ADMIT THE SAME UNDER RULE 46A BUT LD. CIT(A) HAS NOT ADMI TTED THE ADDITIONAL EVIDENCE FILED BEFORE HIM UNDER RULE 40A OF INCOME TAX RULES 1962. COPY OF THESE AFFIDAVITS IS AVAILABLE ON PAGES 11 TO 13 OF THE PAPER BOOK. H E SUBMITTED THAT UNDER THESE FACTS, THE MATTER SHOULD BE RESTORED BACK TO THE FI LE OF THE ASSESSING OFFICER FOR FRESH DECISION. 4. LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF AU THORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THE DISPUTE IN THE PRESENT CASE IS REGARDING CASH DEPOSIT OF RS.2,31,2 91/- WHICH HAS BEEN EXPLAINED BY THE ASSESSEE BEING RECEIPT OF REFUND OF ADVANCES FROM THREE PERSONS SHRI VIJAI, SHRI AMAR SINGH AND SHRI SANJAI. THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED BECAUSE THE ASSESSEE COULD NOT PRODUCE THESE PERSON S BEFORE THE ASSESSING OFFICER. THE AFFIDAVIT OF THESE PERSONS WERE FILED BEFORE THE CIT(A) AS ADDITIONAL EVIDENCE UNDER RULE 46A BUT THE SAME WERE REJECTED BY THE LD. CIT(A) BY SAYING THAT THE ASSESSEE COULD NOT GIVE ANY REASONABLE CAU SE WHICH PREVENTED THE ASSESSEE FROM PRODUCING THESE EVIDENCES BEFORE THE ASSESSING OFFICER. 6. CONSIDERING THESE FACTS, WE ARE OF THE CONSIDERE D OPINION THAT IN THE INTEREST OF JUSTICE, THE MATTER SHOULD GO BACK TO THE FILE O F THE ASSESSING OFFICER FOR FRESH DECISION AND THE ASSESSEE SHOULD PRODUCE THESE PERS ONS BEFORE THE ASSESSING OFFICER AND AFTER EXAMINING THESE PERSONS, ASSESSIN G OFFICER SHOULD DECIDE THE 4 ISSUE AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUNIL KUMAR YADAV) (A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 01 /01/2016 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR