SMT. RAM KALA YADAV, Jaipur V. ITO, BEHROR

ITA 634/JPR/2011

• Counselvise Citation: 63423114 RSA 2011
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 20-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Assessee Lawyers: MAHENDRA GARGIYA
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 148; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, A JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L. KALRA) ITA NOS.634 & 635/JP/2011 ASSESSMENT YEAR : 1999-2000 & 2000-2001 RAM KALA YADAV, W/O VS. INCOME TAX OFFICER WA RD BABUL AL YADAV, BEHROR, BEHROR KOTPUTLI, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MAHENDRA GARGIYA RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING: 21.12.2011 DATE OF PRONOUNCEMENT : 30.12.2011 ORDER PER SHRI N.L. KALRA, A.M. 1. THE ASSESSEE HAS FILED APPEALS AGAINST ORDER OF LD. CIT (A) FOR THE ASSESSMENT YEARS 99-00 AND 00-01. THE A.O. HAS PASSED TWO ASSESSMENT ORDER S FOR EACH YEAR. THE FIRST ASSESSMENT ORDER IS AFTER ISSUE OF NOTICE U/S 148 AND THE SECOND ORD ER IS TO GIVE EFFECT TO THE DIRECTIONS OF LD. CIT U/S 263 VIDE WHICH CERTAIN ISSUES WERE SET ASIDE. T HE ASSESSEE FILED TWO APPEALS FOR EACH ASSESSMENT YEAR BEFORE LD. CIT (A) AND THE LD. CIT (A) DECIDED BOTH THE APPEAL FOR ONE ASSESSMENT YEAR AFTER PASSING A COMMON ORDER. THE A SSESSEE HAS FILED ONLY ONE APPEAL FOR ONE ASSESSMENT YEAR THOUGH THE LD. CIT (A) HAS DECIDED BOTH THE APPEALS FOR ONE ASSESSMENT YEAR BY A SINGLE CONSOLIDATED ORDER. THE ASSESSEE IS REQUIR ED TO FILE SEPARATE APPEAL AGAINST ORDER OF LD. CIT (A) IN WHICH HE HAS DISPOSED OF MORE THAN ONE A PPEAL. HENCE THE PRESENT APPEAL IS CONSIDERED TO BE AGAINST ORDER OF LD. CIT (A) VIDE WHICH HE HAS DISPOSED OFF APPEAL AGAINST ORDER U/S 143 (3)/263. 2 2. IN THE APPEAL FOR THE A.Y. 99-00, THE FIRST GROU ND OF APPEAL IS ARISING FROM THE ORDER OF LD. CIT (A) VIDE WHICH HE DISPOSED OFF APPEAL AGAINST O RDER U/S 143(3)/148. HENCE THIS ISSUE CAN NOT BE CONSIDERED AND THE ASSESSEE IS FREE TO AGITATE T HE ISSUE WHILE FILING APPEAL ARISING FROM THE ORDER OF LD. CIT(A) AGAINST ORDER U/S 143(3)/148. 3. THE SECOND AND THIRD GROUNDS OF APPEAL ARE AGAIN ST THE FINDING OF LD. CIT (A) THAT THE APPEAL IN RESPECT OF THE ISSUES RAISED IN THE ORDER U/S 263 IS NOT MAINTAINABLE IF THE APPEAL AGAINST ORDER U/S 263 HAS NOT BEEN FILED BEFORE LD. CIT. TH E LD. CIT ALWAR VIDE ORDER U/S 263 DATED 31.3.2008 OBSERVED AS UNDER: THE AO COMPLETED THE ASSESSMENTS WITHOUT PROPER ENQ UIRY AND VERIFICATION OF SOURCE OF INVESTMENT. THEREFORE, I AM SATISFIED THA T THE ASSESSMENTS COMPLETED VIDE ORDER U/S 143(3)/148 DATED 28.2.2006 IN BOTH T HE ASSESSMENT YEARS ARE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. THEREFORE, THE ASSESSMENTS IN BOTH THE YEARS ARE SET-ASIDE WITH RE GARD TO THE INVESTMENT IN PURCHASE OF CHASIS OF TRUCKS AND ITS BODY BUILDING ETC., THE EXPENDITURE INCURRED ON THEIR REGISTRATION AND INSURANCE AND THE SOURCE THEREOF. KEEPING IN VIEW ABOVE FACTS AND LEGAL POSITION THE AO IS DIRECTED TO COMPLETE THE ASSESSMENTS AS STATED ABOVE AFTER PROVIDING OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. HE WILL TAKE ALL THE EVIDENCES WITH REGAR D TO PURCHASE OF CHASIS, EXPENSES ON BODY BUILDING, REGISTRATION AND INSURAN CE ETC. OF THE TRUCKS AND THE MODE OF PAYMENT ON RECORD BEFORE DECIDING THE ISSUE . 4. ON SIMILLER REASONS, THE ISSUES WERE RESTORED BA CK ON THE FILE OF LD. CIT (A) TO BE DECIDED ON MERITS IN THE CASE OF JAGDISH YADAV ASSESSED AT BEHROR FOR A.Y. 00-01 VIDE ORDER DATED 14.10.2011 IN ITA NO.137/JP/2011. IT WILL BE USEFUL TO REPRODUCE THE FOLLOWING PARA FROM THAT ORDER: IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE RE STORE BOTH THE ISSUES TO THE FILE OF LD. CIT (A) TO DECIDE THE ISSUE AFRESH ON MERIT AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD. WE HAVE ALSO SEEN THE C OPY OF ORDER UNDER SECTION 263 AND IN PARA 4 IT HAS BEEN CLEARLY MENTIONED THA T THE AO WILL COMPLETE THE ASSESSMENT AFTER PROVIDING OPPORTUNITY TO THE ASSES SEE. THEREFORE, THE LD. CIT (A) SHOULD HAVE DECIDED THE ISSUE ON MERIT AFTER CONSID ERING THE SUBMISSIONS OF THE 3 ASSESSEE WHICH HE HAS FAILED TO DO SO. ACCORDINGLY WE SET ASISDE THE ORDER OF LD. CIT (A) ON THIS ISSUE AND RESTORE THE ISSUE TO HIS FILE TO DECIDE THE SAME AFRESH. 5. ACCORDINGLY USSUES OF ADDITION ON ACCOUNT OF UNE XPLAINED INSURANCE AND REGISTRATION EXPENSES OF RS.40,000/- AND UNEXPLAINED INVESTMENT IN PURCHASE OF CHASIS AND BODY TO THE EXTENT OF RS.2,13,000/- ARE RESTORED BACK ON THE FILE OF L D. CIT (A). 6. IN A.Y. 00-01, THE GROUNDS OF APPEAL NO. 1 & 2 A RE ARISING FROM THE ORDER OF LD. CIT (A) IN WHICH HE HAS DECIDED THE APPEAL AGAINST ASSESSME NT ORDER U/S 143(3)/148. THESE ISSUES CAN BE RAISED WHEN THE ASSESSEE FILED AN APPEAL AGAINST OR DER OF LD. CIT (A) IN WHICH HE HAS DISPOSED OFF APPEAL AGAINST ORDER U/S 143(3)/148. HENCE THESE GR OUNDS OF APPEAL ARE NOT ARISING FROM THE ORDER OF LD. CIT (A) IN WHICH HE HAS DISPOSED OFF APPEAL AGAINST ORDER U/S 143(3)/263 AND ARE DISMISSED. 7. GROUND OF APPEAL NO.3 & 4 ARE SIMILLER TO THE GR OUNDS OF APPEAL NO.2 AND 3 OF A.Y. 99- 00. FOLLOWING OUR FINDING FOR A.Y. 99-00, THESE ISS UES ARE ALSO RESTORED BACK ON THE FILE OF LD. CIT (A). IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR STA STICAL PURPOSES. THE ORDER IS PRONOUNCED IN OPEN COURT ON 30.12.201 1 SD/- SD/- (R.K.GUPTA) (N.L.KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30.12.2011 *S.KUMAR* 4 COPY FORWARDED TO:- 1. RAMKALA YADAV W/O BABULAL YADAV, KOTPUTLI. 2. THE INCOME TAX OFFICER, WARD-BEHROR, BEHROR. 3. THE CIT 4. THE CIT(A), 5. THE D/R, ITAT, JAIPUR 6. THE GUARD FILE IN ITA NOS.634 & 635/JP/2011 BY ORDER A.R., I.T.A.T., JAIPUR