SUNIL KUMAR JOSHI, Jaipur V. ITO, Jaipur

ITA 617/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5323 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA J DHK
• Keywords: Opportunity of being heard
• Section: 142(1); 69; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] Y S[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 617/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SHRI SUNIL KUMAR JOSHI S/O SHRI KAILASH CHAND JOSHI VILLAGE: KARANSAR VIA RENWA, TEHSIL: PHULERA, DISTT. JAIPUR CUKE VS. THE ITO WARD- 7 (2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AERPJ 5376 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY :SHRI S.L. JAIN, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY : MS. ROSHANTA MEENA, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/05/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /05/2016 VKNS'K@ ORDER PER KUL BHARAT, JM THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-III, JAIPUR DATED 06-03-2013 PERTAINING TO ASSESSMENT YEAR 2009- 10. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS O F APPEAL. (1) THAT THE LD. AUTHORITIES BELOW HAVE GROSSLY ERR ED IN LAW AND FACTS IN INVOKING OF PROVISION OF SUB-SECTI ON 142(1) WITHOUT JURISDICTION AND THEREFORE, THE TOTAL PROCE EDINGS IS VOID AB INITIO. ITA NO. 617/JP/2013 SHRI SUNIL KUMAR JOSHI VS. ITO, WARD- 7 (2) ,JAIPUR . 2 (2) THAT THE LD. AUTHORITIES BELOW HAVE GROSSLY ERR ED IN LAW AND FACTS IN PROVIDING PROPER AND SUFFICIENT OP PORTUNITY BEFORE PASSING THE EX-PARTE ASSESSMENT ORDER U/S 14 4 (3) THAT THE LD. AUTHORITIES BELOW HAVE GROSSLY ERR ED IN LAW AND FACTS IN NOT SERVING PROPER AND VALID SHOW CAUSE NOTICE BEFORE MAKING BEST JUDGEMENT ASSESSMENT. (4) THAT THE LD. AUTHORITIES BELOW HAVE GROSSLY ERR ED IN LAW AND FACTS IN NOT ACCEPTING SATISFACTORY EXPLANA TION / EVIDENCE/ DOCUMENTS/ PURCHASE BILLS ETC. IN RELATIO N TO DEPOSIT MADE IN BANK ACCOUNT. THE APPELLANT HAS FUR NISHED ALL EVIDENCE IN RELATION TO NATURE AND SOURCE OF DE POSITS MADE IN BANK ACCOUNT (5) THAT THE LD. AUTHORITIES BELOW HAVE GROSSLY ERR ED IN LAW AND FACTS IN MAKING ADDITION OF RS. 43,43,850/- WIT HOUT ANY BASIS AND ONLY ON PRESUMPTION AND CONJUNCTURE. (6) THAT THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE REMAND REPORT SUBMITTED BY AO AFTER PROPER INVESTIG ATION AND ENQUIRY (7) THAT THE LD. AUTHORITIES BELOW HAVE GROSSLY ERR ED IN LAW AND FACTS IN TAXING THE SUBJECT WITHOUT ANY PRO OF. THE PRIMARY ONUS IS THUS IN ALL SUCH CASES ON REVENUE 9 4 ITR 616 (BOMBAY) (8) THAT THE LD. AUTHORITIES BELOW HAVE GROSSLY ERR ED IN LAW AND FACTS THE CONDITIONS PRECEDENT FOR INVOKING SECTION 69 IS INVESTMENT CONCLUSIVELY PROVED BY REVENUE. IF REVENUE FAILS, THE SUBJECT CANNOT BE TAXED. (9) THAT THE APPELLANT RESERVES HIS RIGHTS TO ADD A MEND OR ALTER THE GROUNDS OF APPEAL ON OR BEFORE DATE OF AP PEAL HEARING. ITA NO. 617/JP/2013 SHRI SUNIL KUMAR JOSHI VS. ITO, WARD- 7 (2) ,JAIPUR . 3 2.1 BRIEFLY STATED FACTS ARE THAT THE CASE OF THE A SSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143( 3) / 144 OF THE INCOME TAX ACT, 1961 ((HEREINAFTER REFERRED TO ACT FOR SHORT) WAS FRAMED VIDE HIS ORDER DATED 3011-2011. THE ASSESSING OFFICER WH ILE FRAMING THE ASSESSMENT ISSUED NOTICE DATED 25-08-2010 CALLING U PON THE ASSESSEE TO EXPLAIN THE BANK DEPOSIT OF RS. 43,43,850/-. IN COM PLIANCE OF THE SAID NOTICE, THE LD. AR OF THE ASSESSEE ATTENDED AND ASK ED FOR ADJOURNMENT. HOWEVER, NONE APPEARED TO EXPLAIN THE BANK DEPOSIT. THE AO THUS PROCEEDED TO MAKE ADDITION TREATING THE SAME AS INC OME FROM UNDISCLOSED SOURCES AMOUNTING TO RS. 43,43,850/-. 2.2 THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS AND CALLING FROM THE RE MAND REPORT FROM THE AO DISMISSED THE APPEAL, THEREBY THE ADDITION MADE BY THE AO WAS CONFIRMED. 2.3 APROPOS GROUND NO. 1 TO 3, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS NOT PROVIDED SUFFIC IENT OPPORTUNITY TO REPRESENT HIS CASE. THE LD. COUNSEL FOR THE ASSESSE E FURTHER SUBMITTED THAT THE REMAND REPORT SOUGHT FROM THE AO WAS NOT CONSI DERED BY THE LD. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TO THE ASSESSMENT ORDER AND IN SUPPORT OF HIS CONTENTION R EFERRED THE REMAND ITA NO. 617/JP/2013 SHRI SUNIL KUMAR JOSHI VS. ITO, WARD- 7 (2) ,JAIPUR . 4 REPORT DATED 1/6-02-2013 VIDE PAGE 7 TO 8 OF THE PA PER BOOK. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS PER REMA ND REPORT , THE AO HAS VERIFIED THE FURNISHING OF EVIDENCES BUT THE LD. CI T(A) HAS NOT CONSIDERED THE REMAND REPORT. 2.4 ON THE CONTRARY, THE LD. DR STRONGLY RELIED ON THE ORDER OF THE AUTHORITIES BELOW. 2.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THERE IS NO DISPU TE WITH REGARD TO THE FACT THAT THE AO MADE ADDITION BY INVOKING THE PROV ISIONS OF SECTION 144 OF THE ACT. HOWEVER, WE FEEL THAT THE ASSESSEE WAS NOT GIVEN ADEQUATE OPPORTUNITY FOR EXPLAINING THE BANK DEPOSITS. THE C ONTENTION OF THE ASSESSEE IS THAT THE DEPOSITS ARE OUT OF SALE OF RE CHARGE COUPONS. THE AO IN HIS REMAND REPORT HAS MENTIONED THAT M/S. SUNIL TELELINK AGENCIES HAS CONFIRMED THE PURCHASES THROUGH ITS COPY OF LEDGER ACCOUNT. IT APPEARS THAT THESE ASPECTS HAVE NOT BEEN CONSIDERED BY THE LD. CIT(A). THEREFORE, IT WOULD SUBSERVE THE INTEREST OF JUSTICE IF THE AS SESSEE IS GRANTED ANOTHER OPPORTUNITY TO SUBSTANTIATE HIS CLAIM. ACCORDINGLY IMPUGNED ASSESSMENT IS SET ASIDE. THE ASSESSEE IS HEREBY DIRECTED TO PRODUCE ALL THE EVIDENCES IN SUPPORT OF HIS CLAIM BEFORE THE AO THAT THE DEPO SITS WERE OUT OF SALE OF RECHARGE COUPONS. THE AO AFTER MAKING PROPER ENQUIR Y OF THE CASE WILL ITA NO. 617/JP/2013 SHRI SUNIL KUMAR JOSHI VS. ITO, WARD- 7 (2) ,JAIPUR . 5 MAKE DE NOVO ASSESSMENT IN ACCORDANCE WITH LAW BUT BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE AO IS DIRECTED TO COMPLETE ASSESSMENT WITHIN SIX MONTHS ON RECEIP T OF THIS ORDER. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. SINCE WE HAVE SET ASIDE THE ASSESSMENT, ALL OTHER GROUNDS RA ISED IN THE APPEAL ARE NOT BEING ADJUDICATED SEPARATELY. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /05/ 2016. SD/- SD/- FOE FLAG ;KNO DQY HKKJR (VIKRAM SINGH YADAV) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13 /5/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SUNIL KUMAR JOSHI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 7 (2), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.617/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR