Sh. Dev Raj, Baddi V. ITO, Baddi

ITA 614/CHANDI/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1579 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTASR
• Assessee Lawyers: CHARITRA KUMAR
• Keywords: Unexplained investment; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 614/CHD/2018 ASSESSMENT YEAR : 2008-09 SHRI DEV RAJ, VS. THE ITO, KESHAV PROPERTIES, BADDI, H.P. NEAR BUS STAND, BADDI HIMACHAL PRADESH PAN NO. ADKPR1438E (APPELLANT) (RESPONDENT) APPELLANT BY : SH. CHARITRA KUMAR, CA RESPONDENT BY : SMT.CHANDERKANTA,SR.DR DATE OF HEARING : 30.07.2018 DATE OF PRONOUNCEMENT : 04.09. 2018 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 26.02.2018 OF THE COMMISSIONER OF I NCOME TAX(A), PALAMPUR [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOW ING GROUNDS:- 1. THAT HAVING REGARD TO FACTS AND CIRCUMSTA NCES OF THE CASE. LD. CIT (A) HAS LAW AND ON FACTS IN CONFIRMING ADDI TIONS OF RS. 1,86,000/- ON ACCOUNT OF ALLEGED RENTAL INCOME EARN ED BY THE ASSESSEE. 2. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFI RMING ADDITIONS OF RS. 5,36,250/- ON ACCOUNT OF ALLEGED INVESTMENT IN IMMOVABLE PROPERTIES. 3. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCE S OF THE CASE, ITA NO. 614/CHD/2018- SHRI DEV RAJ, BADDI, H.P. 2 LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT AL LOWING THE BENEFIT OF TELESCOPING OF INCOMES EARNED AGAINST RS . 536.250/- INVESTMENT IN IMMOVABLE PROPERTIES AS CLA IMED BY THE ASSESSEE MORE-SO IN IGNORANCE OF FACTS OF THE C ASE AND SUBMISSIONS MADE. 4. THAT IN ANY VIEW OF THE MATTER AND IN ANY CAS E THE ACTION OF THE LD. CIT (A) IN CONFIRMING THE ADDITION MADE IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE , 5. THAT HAVING REGARD TO FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIR MING THE ORDER OF LD. ASSESSING OFFICER FLOUTING THE PRINCIP LES OF NATURAL JUSTICE BY PASSING AN ORDER WITHOUT CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE, MATERIAL ON R ECORD, RECORDING INCORRECT FACTS AND WITHOUT APPRECIATING THE COMPLETE FACTS AND CIRCUMSTANCES OF THE CASE. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT AS PER THE INSTRUCTIONS OF HIS CLIENT HE DOES NOT PRES S GROUND NO.1 OF THE APPEAL. GROUND NO.1 , IS THEREFORE, DISMISSED AS NOT PRESSED. 4. GROUND NO.2 : IN GROUND NO.2, THE ASSESSEE HAS AGITATED THE CONFIRMATION OF ADDITION OF RS. 5,36,250/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN IMM OVABLE PROPERTIES. THE ASSESSING OFFICER FOUND THAT THE AS SESSEE HAD INVESTED IN MANY IMMOVABLE PROPERTIES. ON BEING ASK ED TO EXPLAIN THE SOURCE OF INVESTMENT OF RS. 5,36,260/- MADE BY THE ASSESSEE IN THE IMMOVABLE PROPERTIES IN QUESTION, THE ASSESSEE EXPLAINED THAT THE SAME WAS MADE OUT OF THE WITHDRAWALS MADE FROM THE BANK ACCOUNT OF HIS SONS SHRI RAJESH KESHAV AND SH. JASWANT RAI . HOWEVER, THE ASSESSING OFFICER FOUND THAT THE AFORESAID EXPLANAT ION OF THE ASSESSEE WAS NOT SATISFACTORY AS THE SONS OF THE ASSESSEE W ERE ALSO ENGAGED SEPARATELY IN BUSINESS OF PROPERLY DEALING, CONSTR UCTION AND PLYING OF TRUCKS ETC. AND FURTHER THE ASSESSMENTS U/S 143 (3) OF THE ACT WERE ITA NO. 614/CHD/2018- SHRI DEV RAJ, BADDI, H.P. 3 COMPLETED IN THEIR CASES ALSO WHEREIN THEY COULD NOT EVEN EXPLAIN THEIR INVESTMENTS AND ACCORDINGLY CERTAIN ADDITION S WERE MADE. HE, THEREFORE, REJECTED THE ABOVE EXPLANATION GIVEN BY THE ASSESSEE. 5. IN APPEAL BEFORE THE LD. CIT(A) CONFIRMED THE AD DITIONS SO MADE BY THE ASSESSING OFFICER. 6. BEFORE US, THE LD. AR OF THE ASSESSEE HAS REIT ERATED THE SUBMISSIONS AS WERE MADE BEFORE THE LOWER AUTHORITI ES. AFTER GOING THROUGH THE IMPUGNED ORDERS OF THE LOWER AUTHORITIE S, WE FIND THAT THE LOWER AUTHORITIES HAVE RIGHTLY REJECTED THE AB OVE EXPLANATION GIVEN BY THE ASSESSEE. THE SONS OF THE ASSESSEE HA VE THEIR SEPARATE BUSINESS AS DISCUSSED ABOVE AND THE AFORESAID WITHD RAWALS FROM THE BANK ACCOUNT, UNDER THE CIRCUMSTANCES CANNOT BE ATT RIBUTED TO THE INVESTMENTS MADE BY THE ASSESSEE. IN VIEW OF THIS G ROUND NO.2 OF THE APPEAL IS DISMISSED. 7. GROUND NO.3 IN GROUND NO.3 THE ASSESSEE HAS CLAIMED TELESCOPIC BENEFIT OF THE INCOME EARNED / ADDITIONS MADE TO THE INCOME OF THE ASSESSEE IN THE PRECEDING ASSESSMENT YEAR TOWARDS THE UNACCOUNTED INVESTMENT OF RS. 5,36,250/- FOR THE YE AR UNDER CONSIDERATION. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT PURSUANT TO SURVEY ACTION CARRIED OUT AT THE PREMI SES OF THE ASSESSEE, THE ASSESSMENTS WERE MADE FOR ASSESSMENT YEARS 200 4-05 TO 2008-09. THAT FOR THE ADDITIONS MADE INTO THE INCOME OF THE ASSESSEE IN RESPECT OF PRECEDING ASSESSMENT YEARS IN THE ASSESSMENT PRO CEEDINGS PURSUANT TO SURVEY ACTION AT THE PREMISES OF THE AS SESSEE, THE TELESCOPIC BENEFIT OF THE SAME SHOULD BE GIVEN TO T HE ASSESSEE FOR ITA NO. 614/CHD/2018- SHRI DEV RAJ, BADDI, H.P. 4 ASSESSMENT YEAR UNDER CONSIDERATION. 8. THE LD. DR HOWEVER, ON THE OTHER HAND, HAS RELI ED ON THE FINDINGS OF THE LOWER AUTHORITIES. 9. WE FIND FORCE IN THE ABOVE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. SINCE THE ADDITIONS HAVE BEEN MADE IN RESPECT OF PRECEDING ASSESSMENT YEAR PURSUANT TO SURVEY ACTION CARRIED IN THE CASE OF THE ASSESSEE, HENCE, THE ADDITIONS IN RESPE CT OF UNEXPLAINED INCOME OF THE ASSESSEE MADE IN THE PRECEDING ASSESS MENT YEARS ARE TO BE GIVEN TELESCOPIC BENEFIT IN RESPECT OF INVEST MENTS MADE BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION. THE ASSES SING OFFICER IS ACCORDINGLY DIRECTED TO GIVE THE TELESCOPIC BENEFIT AS OBSERVED ABOVE. THE APPEAL OF THE ASSESSEE, THEREFORE, IS TREATED A S PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.09.2018 SD/- SD/- (B.R.R KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 04.09. 2018 RKK COPY TO: THE APPELLANT THE RESPONDENT THE CIT THE CIT(A) THE DR