Sh. Deepak Kumar, Moga V. The Income tax Officer, Moga

ITA 612/ASR/2013

• Counselvise Citation: 61220914 RSA 2013
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-03-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 10-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Keywords: Opportunity of being heard; Additional evidence; Wrong claim

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.612(ASR)/2013 ASSESSMENT YEAR:2009-10 PAN :AFBPK5681D SH. DEEPAK KUMAR VS. INCOME TAX OFFICER, S/O SH. RAMESH KUMAR, WARD-1, 7/444, GALI NO.9, NEW TOWN, MOGA. MOGA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. J.S.BHASIN, ADVOCATE RESPONDENT BY:SH.TARSEM LAL, DR DATE OF HEARING: 24/03/2014 DATE OF PRONOUNCEMENT:26/03/2014 ORDER PER BENCH ; THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE CIT(A)-1, LUDHIANA, DATED 29.07.2013 FOR THE ASSESSMENT YEA R 2009-10.THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A), HAS GROSSLY ERRED IN ACCEPTING THE AOS REMAND REPO RT DATED 24.07.2013, WITHOUT CONFRONTING IT TO ASSESSEE, TO REJECT THE ITA NO.612(ASR)/2013 2 ASSESSEES CLAIM OF HAVING RECYCLED A SUM OF RS.35, 79,516/- WHILE EXPLAINING THE BANK CREDITS. 2. THAT THE AOS REMAND REPORT, ACCEPTED BY CIT(A), TO THE EFFECT THAT A SUM OF RS.21,71,459/- CLAIMED BY ASSESSEE AS AMOUNT RECYCLED, WAS THE AMOUNT TRANSFERRED/UTILIZED ELSEW HERE, IS FACTUALLY INCORRECT AND HENCE, UNSUSTAINABLE. 3. THAT THE LD. CIT(A) FURTHER FELL INTO GRAVE ERRO R TO UPHOLD THE ADDITION OF RS.13,66,951/- N A TOTALLY FALSE PREMIS E THAT IT WAS A WRONG CLAIM OF RECYLING OF CASH BY ASSESSEE. 4. THAT REPAYMENT OF RS. 10 LACS TO SH. RAMIT TANEJ A, EARLIER RECEIVED BY CHEQUE, HAS BEEN WRONGLY DISBELIEVED BY NOT ACCEPTING HIS SWORN AFFIDAVIT, FILED IN APPEAL AS ADDITIONAL EVIDENCE. 5. THAT FURTHER ADDITION OF RS.2,45,000/- EXPLAINED TO BE AVAILABLE FROM FLOATING FAMILY FUNDS, HAS BEEN WRONGLY UPHELD BY THE LD. CIT(A). 6. THAT THE ASSESSEES ALTERNATIVE CONTENTION MADE BEFORE THE LD. CIT(A) TO APPLY NET PROFIT RATE OF 8% U/S 44AF, BY TREATING THE AGGREGATE BANK CREDITS MADE IN CASH AS BUSINESS REC EIPTS FROM RETAIL TRADING OF KARYANA AND LOTTERY TICKETS, OUGH T TO HAVE BEEN ACCEPTED/ALLOWED BY LD. CIT(A). 7. THAT THE ORDERS OF THE AUTHORITIES BELOW, TO THE EXTENT DISPUTED HEREINABOVE, ARE AGAINST LAW AND FACTS OF THE CASE. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE AO MADE AN ADDITION OF RS.34,76,150/- ON THE BASIS OF CASH DEPOSITS FO UND UNEXPLAINED IN THE TWO BANK ACCOUNTS OPERATED BY THE ASSESSEE. THE AO HAS OBSERVED THAT THE ASSESSEE HAS BEEN DOING THE BUSINESS OF RETAILING O F KARYANA ITEMS AND LOTTERY BUSINESS APPROVED BY THE STATE GOVERNMENT. THE ASSESSEE HAD FILED ITA NO.612(ASR)/2013 3 RETURN OF INCOME U/S 44AF AND HAD NOT MAINTAINED AN Y BOOKS OF ACCOUNTS. THE AO AFTER EXAMINING THE BANK ACCOUNTS MAINTAINE D BY THE ASSESSEE BROUGHT ON RECORD THE FOLLOWING CART OF DEPOSITS: DEPOSITS IN ICICI BANK : RS.61,33,479/- (A/C NO.0237015020810) SBOP BANK : RS. 2,38,950/- (A/C NO.62037368333) TOTAL : RS.63,72,430/- LESS: CASH DEPOSITED IN BANK OUT OF THE WITHDRAWAL FROM BANK : RS.24,32,000/- BALANCE : RS.39,40,430/- LESS: LOAN FROM NENU ARORA : RS.1,30,000/- FDR : RS.2,00,000/- BANK INT. FDR : RS. 4,280/- RS.3,34,280/ LESS: CROSS ENTRY FROM PANKAJ MOTORS :RS.1,30,000/- TOTAL RS.4,64,280/- : RS.4,64,280/- BALANCE RS.34,76,150/- THE ASSESSEE ON BEING CONFRONTED WITH THE ABOVEMEN TIONED INFORMATION COULD NOT OFFER ANY EXPLANATION IN TERM S OF PURCHASE/SALES BILL LEADING TO ADDITION OF RS.34,76,150/-. 3. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED T HE ADDITIONAL EVIDENCE UNDER RULE 46A WHICH WAS FORWARDED TO THE AO FOR HI S COMMENTS VIDE LETTER DATED 05.12.2012 AND THE AO VIDE LETTER DATE D 10.01.2013 CONTENDED THAT THE ASSESSEE HAD BEEN SUFFICIENT AND ADEQUATE OPPORTUNITY TO FILE THE EXPLANATION AT THE TIME OF ASSESSMENT STAGE AND ADD ITIONAL EVIDENCE SHOULD ITA NO.612(ASR)/2013 4 NOT BE ADMITTED UNDER RULE 46A. THE AO ALSO FILED H IS REPORT ON THE SPECIFIC WRITTEN SUBMISSIONS OF THE LD. AR VIDE HIS LETTER D ATED 10.01.2013, WHICH IS REPRODUCED AT PAGES 8 TO 10 OF LD. CIT(A)S ORDER. THE LD. CIT(A) AFTER CONSIDERING THE REPORT OF THE A.O. AND SUBMISSIONS OF THE ASSESSEE WAS OF THE VIEW IN PARA 7 OF HIS ORDER THAT APPLICATION UN DER RULE 46A CANNOT BE ALLOWED AS THE ASSESSEE HAS NOT SHOWN AS TO HOW THI S CRUCIAL CLAIM WAS OVER- LOOKED AT THE TIME OF ASSESSMENT ESPECIALLY WHEN SU FFICIENT OPPORTUNITY HAD BEEN PROVIDED IN THIS REGARD. 4. THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO EX CEPT THE ADDITION OF RS.1,30,000/-. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE, SH.J.S.BHASIN, ADVOCATE THAT THE LD. CIT(A) HAS NOT DECIDED THE ALTERNATIVE CONTENTION MADE BEFORE HIM WITH REGARD TO THE APPLICABILITY OF NET PROFIT RATE OF 8% U/S 44AF OF THE ACT AND HE HAS NOT DECIDED THAT WHAT ARE FUNDS AVAI LABLE WITH THE ASSESSEE FOR RECYLING THE SAME. AFTER CONSIDERING THE ARGUME NTS OF THE LD. COUNSEL FOR THE ASSESSEE AND THAT OF THE A.O., WE ARE OF THE VI EW THAT IN THE INTEREST OF JUSTICE, THE LD. CIT(A) IS DIRECTED TO ADMIT THE AD DITIONAL EVIDENCE PUTFORTH BY THE ASSESSEE AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW ESPECIALLY TO FIND OUT THE FUNDS ACTUALLY AVAILABLE WITH THE ASSE SSEE FOR RECYLING THE SAME ITA NO.612(ASR)/2013 5 AND DECIDE THE ISSUE WITH REGARD TO APPLICABILITY O F NET PROFIT RATE U/S 44AF OF THE ACT, BUT BY PROVIDING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO COOPERATE IN THE ASSESSMENT PROCEEDINGS AND SUBMIT THE MATERIAL AS REQUIRED BY THE LD. CIT( A) FOR ADJUDICATING THE ISSUE. ACCORDINGLY, THE ISSUE IN DISPUTE IS SET AS IDE TO THE FILE OF THE LD. CIT(A), WHO WILL DECIDE THE SAME AFRESH AFTER AFFO RDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE APP EAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. THE APPEAL OF THE ASSESSEE IN ITA NO. 612(ASR)/2 013 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH MARCH, 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26TH MARCH, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. DEEPAK KUMAR, MOGA. 2. THE ITO, MOGA. 3. THE CIT(A)-1, LUDHIANA 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR