SHRI SANJAY NANASAHEB BHARSAKALE, V. I.T.O. WARD -1, AMRAVATI

ITA 65/NAG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9657 (ITAT-NAGPUR)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 27-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 131; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI P.K. BANSAL, VICE PRESIDENT AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO. 65/NAG./2017 ( ASSESSMENT YEAR : 201112 ) SHRI SANJAY NANASAHEB BHARSAKALE 1, SHIVAJI NAGAR, BANOSA DARYAPUR DIST. AMRAWATI 444 803 PAN AHRPB8625J APPELLANT V/S INCOME TAX OFFICER WARD1, AMRAWATI 444 601 .... RESPONDENT ASSESSEE BY : SHRI MANOJ MORYANI REVENUE BY : SHRI A.R. NINAWE DATE OF HEARING 22.06.2017 DATE OF ORDER 30.0 6.2017 O R D E R PER AMARJIT SINGH, J.M. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 5 TH JANUARY 2017, PASSED BY THE LEARNED COMMISSIONER (APPEALS)I, NAGPUR, RELEVANT TO THE ASSESSMENT YEA R 201112. 2. THE GROUNDS RAISED BY THE ASSESSEE IS REPRODUCED BE LOW: 1. THE ORDER PASSED BY LEARNED COMMISSIONER OF INC OME TAX (APPEALS)-!, NAGPUR U/S. 144 IS ILLEGAL, INVALID AN D BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) --I ERRED IN NOT CONSIDERING THE FACTS OF SERVICE OF NOTICE DATE D 28/12/2016 TO THE ASSESSEE. AS THE ASSESSEE RESIDING AT AMRAVATI AND ASSESSEE HAS COMMUNICATED NOTICE TO HIS COUNSEL AT AMRAVATI WHO IS BUSY IN TIME BEARING ASSESSMENT PROCEEDINGS AND HAS NOT 2 SHRI SANJAY NANASAHEB BHARSAKALE COMMUNICATED NOTICE TO COUNSEL AT NAGPUR HENCE COUN SEL AT NAGPUR UNABLE TO ATTEND HEARING, THEREFORE ORDER PA SSED IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE, 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -I ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER U/S. 68 AT RS.2,05,00,000/- AS UNEXPLAINED CASH CREDITS, THERE FORE ORDER PASSED IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -I ERRED IN NOT GRANTING OPPORTUNITY TO REBUTE THE EVIDENCE AS WELL AS CROSS EXAMINATION OF ALL THE 17 PERSONS FROM WHOM ASSESSE E HAS TAKEN MONEY, PASSED IS UNJUSTIFIED, UNWARRANTED AND EXCES SIVE. 5. THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN NOT CONSIDERING THAT THERE IS NO FAULT PART OF THE ASSE SSEE AND LENIENT VIEW OF THE MATTER BE TAKEN, THEREFORE, ORDER PASSE D IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 25 TH JANUARY 2012, DECLARING TOTAL INCOME OF ` 4,60,290. THE RETURN OF INCOME WAS PROCESSED UNDER SECTION 14 3(1) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) ON 17 TH FEBRUARY 2012. ENQUIRY UNDER SECTION 131 OF THE ACT WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 19 TH APRIL 2013, BY THE DDIT (INV.), UNITIII, NAGPUR. IT WAS OBSERVED THAT THE ASSESSEE INTRODUCED CASH T O THE TUNE OF ` 2.05 CRORE IN HIS BOOKS OF ACCOUNT ON 3 RD JANUARY 2011 AND ON THE SAME DAY, HE DEPOSITED THE CASH TO THE TUNE OF ` 1.06 CRORE IN THE BANK ACCOUNT WITH CENTRAL BANK OF INDIA, DARIYAPUR. THE ASSESSEE WAS IN THE BUSINESS OF LODGING AND RESTAURANT, VIDEO GA ME PARLOUR AND TRADING IN SAND. THE ASSESSING OFFICER ISSUED NOTIC ES TO THE 20 PERSONS FROM WHOM HE RECEIVED THE AMOUNT TO THE TUNE OF ` 2.05 CRORE. 17 3 SHRI SANJAY NANASAHEB BHARSAKALE PEOPLE ATTENDED THE PROCEEDINGS AND THE ASSESSING O FFICER AFTER RECORDING THEIR STATEMENT WAS OF THE VIEW THAT THE SAID AMOUNT TO THE TUNE OF ` 2.05 CRORE WAS UNEXPLAINED THEREFORE, THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE IN VIEW OF THE PROVIS IONS OF SECTION 68 OF THE ACT. THE TOTAL INCOME OF THE ASSESSEE WAS ASSES SED TO THE TUNE OF ` 2,09,60,290. THEREAFTER, THE ASSESSEE FILED AN APP EAL BEFORE THE LEARNED COMMISSIONER (APPEALS), WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. HOWEVER, THE ASSESSEE FAILED TO JOIN THE PROCEEDINGS BEFORE THE LEARNED COMMISSIONER (APPEALS). AGGRIEVED BY TH IS, THE ASSESSEE FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE VERY OUTSET, THE LEARNE D COUNSEL FOR ASSESSEE HAS ARGUED THAT THE LEARNED COMMISSIONER ( APPEALS) HAS DECIDED THE APPEAL OF THE ASSESSEE EXPARTE AND WIT HOUT GIVING OPPORTUNITY OF BEING HEARD THE ASSESSEE, THEREFORE, THE IN THE SAID CIRCUMSTANCES, THE ORDER OF THE LEARNED COMMISSIONE R (APPEALS) IN QUESTION DATED 5 TH JANUARY 2017, IS WRONG AGAINST LAW AND FACT AND IS LIABLE TO BE SET ASIDE. HOWEVER, ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS REFUTED THE SAID CO NTENTION OF THE LEARNED COUNSEL. ON APPRAISAL OF THE IMPUGNED ORDER DATED 5 TH JANUARY 2017, PASSED BY THE LEARNED COMMISSIONER (APPEALS) IN QUESTION, WE NOTICE THAT THE SAID APPEAL HAS BEEN DECIDED BY THE LEARNED 4 SHRI SANJAY NANASAHEB BHARSAKALE COMMISSIONER (APPEALS) EXPARTE. THE APPEAL WAS NOT REPRESENTED BY THE ASSESSEE AS WELL AS THE LEARNED DEPARTMENTAL RE PRESENTATIVE ALSO. ON APPRAISAL OF THE SAID ORDER, WE ALSO FIND THAT T HE MATTER OF CONTROVERSY IS IN CONNECTION WITH THE ADDITION OF ` 2.05 CRORE HAS NOT BEEN ADJUDICATED ON THE BASIS OF EVEN MATERIAL AVAI LABLE ON RECORD. THE ASSESSEE ONLY WANTS TO REPRESENT THE MATTER IN SUPPORT OF HIS CLAIM AND TO ADDUCE SOME EVIDENCE ALSO. SINCE THE M ATTER OF CONTROVERSY IS NOT ADJUDICATED BY THE LEARNED COMMI SSIONER (APPEALS) ON MERITS AND THE ASSESSEE FAILED TO APPEAR BEFORE THE LEARNED COMMISSIONER (APPEALS) DUE TO ANY REASON, WE ARE OF THE VIEW THAT THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEA LS) IS NOT JUSTIFIABLE IN THE INTEREST OF JUSTICE. IN VIEW OF THE SAID CIRCUMSTANCES, WE ARE NOT INCLINED TO DECIDE THE CASE ON MERITS AN D SET ASIDE THE FINDINGS OF THE LEARNED COMMISSIONER (APPEALS) WITH THE DIRECTION TO THE LEARNED COMMISSIONER (APPEALS) TO DECIDE THE IS SUES ON MERITS BY GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE IN ACCO RDANCE WITH LAW. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.2017 SD/ - P.K. BANSAL VICE PRESIDENT SD/ - AMARJIT SINGH JUDICIAL MEMBER NAGPUR, DATED: 30.06.2017 5 SHRI SANJAY NANASAHEB BHARSAKALE COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, NAGPUR