ITO, Kolar V. Sri. A. Gopala Reddy, Malur

ITA 622/BANG/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0639 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 12-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Keywords: Peak credit
• Section: 142(1); 144

Judgement Text

PAGE 1 OF 4 ITA NO.622 /B/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI GEORGE GEORGE K, J.M. AND SHRI AKBER BASHA, A.M ITA NO.622/BANG/09 (ASST. YE AR 2005-06) THE INCOME TAX OFFICER, WARD-1, KOLAR. - APPELLANT VS SHRI A GOPALA REDDY, JAGADENAHALLI LAKKUR HOBLI, MALUR. - RESPONDENT APPELLANT BY : SM T. JACINTA ZIMIK VASHAI RESPONDENT BY : NONE O R D E R PER GEORGE GEORGE K : THIS APPEAL, FILED BY REVENUE, IS D IRECTED AGAINST THE ORDER OF LEARNED CIT(A)-V, BANGALORE DATED 17TH MARCH, 2009. THE ASST. YEAR CONCERNED IS 2005-06. 2. THE SOLITARY ISSUE RAISED IN THIS APPEAL, IS WHE THER THE CIT(A) JUSTIFIED IN COMPUTING THE INCOME AT RS.3,20,747/- INSTEAD OF RS.12,44,280/- DETERMINED BY THE ASSESSING OFFICER. PAGE 2 OF 4 ITA NO.622 /B/2009 2 3. AT THE TIME OF HEARING, NONE APPEA RED ON BEHALF OF THE ASSESSEE. HOWEVER, WE PROCEEDED TO DISPOSE OF THE APPEAL ON M ERITS. 4. BRIEF FACTS OF THE CASE ARE AS FOLLOWS. THE ASSESSEE IS AN INDIVIDUAL. NOTICE U/S 142(1) WAS ISSUED TO THE ASSESSEE FOR THE ASST. YEAR 2005-06, CALLING FO R CERTAIN INFORMATION. SINCE THE ASSESSEE DID NOT RESPOND TO THE NOTICE IS SUED U/S 142(1), A LETTER DATED 4.12.2007 WAS ISSUED TO THE ASSESSEE, COMMUNI CATING THE PROPOSED LINES OF ASSESSMENT. AS THERE WAS NO RESPONSE TO THE LETTER DATED 4.12.2007, THE ASSESSING OFFICER COMPLETED THE ASSE SSMENT U/S 144 OF THE ACT, DETERMINING THE INCOME OF THE ASSESSEE AT RS.1 2,44,280/-, BASED ON THE DEPOSITS MADE IN THE BANK ACCOUNT, AS INCOME FROM O THER SOURCES. 5. ON FURTHER APPEAL, BEFORE THE CIT(A), IT WAS STATED BY THE ASSESSEE THAT HE DOES NOT HAVE SUFFICIENT INCOME FO R FILING OF RETURNS AND IS NOT A REGULAR INCOME TAX ASSESSEE. IT WAS STATED T HAT NON-COMPLIANCE OF NOTICE ISSUED BY THE ASSESSING OFFICER WAS UNINTENTI ONAL AND FOR BONAFIDE REASONS. THE ASSESSEE HAD FILED THE RETURN OF INCO ME, DECLARING AN INCOME OF RS.79,610/- FROM PURCHASE AND SALE OF AGRICULTUR AL PRODUCE ON A TOTAL TURNOVER OF RS.7,94,850/-. THE ASSESSEE HAD ALSO D ECLARED AN AMOUNT OF RS.4,57,600/- BEING RECEIPTS FROM AGRICULTURAL ACTI VITIES. IT WAS SUBMITTED BEFORE THE CIT(A) THAT THE DEPOSITS IN THE BANK ACC OUNT WERE MADE OUT OF SALE PROCEEDS OF THE BUSINESS AND HIS AGRICULTURAL INCOME. THE LEARNED CIT(A) FOR THE REASONS MENTIONED IN PARA 6 OF HIS O RDER, REDUCED THE INCOME RETURNED TO RS.3,20,747/- AND GRANTED A RELIEF OF R S.9,23,533/-. THE PAGE 3 OF 4 ITA NO.622 /B/2009 3 REVENUE, BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A), IS IN APPEAL BEFORE US. 6. THE LEARNED DR SUBMITTED THAT THE CIT(A) HAS ER RED IN WORKING OUT THE PEAK CREDIT AT RS.3,20,747/- WITHOUT ANY PRO PER MATERIAL OR EVIDENCE. IT WAS SUBMITTED THAT THERE WAS NO MATER IAL ON RECORD TO NEGATE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER . IT WAS CONTENDED BY THE LEARNED DR, THAT THE ORDER OF ASSESSMENT BEIN G BEST JUDGED ASSESSMENT U/S 144 OF THE ACT, NECESSARILY INSTEAD O F DECIDING THE MATTER ON MERITS, THE CIT(A) OUGHT TO HAVE GRANTED AN OPPO RTUNITY TO THE ASSESSING OFFICER TO EXAMINE AFRESH THE MATERIALS, IF ANY, THA T WAS PRODUCED BEFORE THE CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS. WE FIND FROM THE CIT(A)'S ORDER THAT THE CIT(A) HAS WORKED OUT THE PEAK CREDIT ON HIS OWN AND ALLOWED THE RELIEF ON THE BAL ANCE AMOUNT. THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE ASSESSEE HAD AN Y AGRICULTURAL LAND OR AGRICULTURAL INCOME FOR THE CONCERNED YEAR. BESIDES THE ANNUAL STATEMENTS, THERE IS NO MATERIAL TO SHOW THAT THE ASSESSMENT OR DER PASSED BY THE ASSESSING OFFICER IS WITHOUT ANY BASIS. WE ARE OF T HE VIEW THAT THE ASSESSMENT HAVING BEEN COMPLETED U/S 144, ANY MATERI AL/EVIDENCE OR WRITTEN SUBMISSIONS MADE BEFORE THE CIT(A), OUGHT TO HAVE B EEN PLACED BEFORE THE ASSESSING OFFICER, BEFORE A DECISION IS TAKEN ON TH E MATTER. THERE IS NO PROPER REASONING FOR REDUCING THE TOTAL INCOME TO R S.3,20,747/- AND FOR GRANTING A RELIEF OF RS.9,23,533/-. IN THE INTERE ST OF JUSTICE, WE ARE OF THE VIEW, THAT FOR A PROPER ADJUDICATION OF THE MATTER, THE MATTER NEEDS TO BE PAGE 4 OF 4 ITA NO.622 /B/2009 4 RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR A PROPER CONSIDERATION OF THE ISSUE. THE ASSESSEE SHALL AT LIBERTY TO FILE AL L AVAILABLE MATERIAL TO PROVE THE RETURN OF INCOME FILED BY HIM. THE ASSESSING OF FICER SHALL AFFORD ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE BEF ORE FRESH ORDERS ARE DRAWN UP. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 20TH NOVEMBER, 2009. SD/- SD/- (AKBER BASHA) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED :20/11/2009 COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED. 4. THE CIT(A) CONCERNED. 5. DR 6. GF 7. GF, ITAT, NEW DELHI. MSP/17.11. BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.