SHRI BANWARI LAL, JAIPUR V. INCOME TAX OFFICER, WARD-7-2, JAIPUR

ITA 651/JPR/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6167 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 03-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRISH BEDI CIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Principle of natural justice; Corroborative evidences; Non compliance; Set aside
• Section: 142(1); 250; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH A, (VC) JAIPUR JH LANHI XKSLKBZ] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSIAN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 651/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08. SHRI BANWARI LAL, VILLAGE PHAGODIYAWALA, BAD KE BALAJI, TEHSIL SANGANER, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AOXPC 4046 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI AMRISH BEDI, (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26.11.2020. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 02/02./2021 . VKNS'K@ ORDER PER SANDEEP GOSIAN, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 30.08.2011 OF LD. CIT (A)-III, JAIPUR FOR THE ASSESSMENT YEAR 200 7-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) HAS ERRED IN PASSING THE EX-PARTE ORDER BY DISM ISSING THE APPEAL OF THE ASSESSEE. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN PASSING THE ORDER WITHOUT SERVING ANY NOTICE TO THE ASSESSEE. 2 ITA NO. 651/JP/2019 SHRI BANWARI LAL VS. ITO WARD 7(2), JAIPUR. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN CONFIRMING THE INVOCATION OF SECTI ON 144 OF THE INCOME TAX ACT, 1961 WHERE NO NOTICE U/S 142(1) WAS SRVED TO THE ASSESSEE. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 1,4 4,00,000/- ON ACCOUNT OF BANK DEPOSITS WHICH WERE MADE BY THE FAT HER OF THE ASSESSEE OUT OF SALE OF AGRICULTURE LAND. 5. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AMEND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF H EARING. 2. THE ASSESSEE IS AN INDIVIDUAL. THE AO COMPLETED THE ASSESSMENT BY PASSING EX PARTE ORDER DATED 18.12.2009 UNDER SECTION 144 O F THE IT ACT MAKING TOTAL ADDITION OF RS. 1,44,05,620/- ON ACCOUNT OF UNEXPLA INED BANK DEPOSITS AND INTEREST OF RS. 5,618/- THEREON, MAINTAINED WITH THE CENTRAL BANK OF INDIA, BAD KE BALAJI, JAIPUR. THE ASSESSEE FILED APPEAL BEFORE LD. CIT ( A) AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION 144 OF THE IT ACT. HOWEVER, N ONE HAS APPEARED ON BEHALF OF THE ASSESSEE EVEN BEFORE THE LD. CIT (A) DUE TO THE REASON THAT THE ASSESSEE WAS NOT AWARE OF THE APPELLATE ORDER PASSED BY THE LD. CIT (A) AS THE ASSESSEE WAS NOT SERVED WITH THE LD. CIT (A)S ORDER PASSED ON 30.08 .2011. THEREFORE, THE APPEAL OF THE ASSESSEE WAS DISMISSED BY PASSING THE IMPUGNED EX PARTE ORDER. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE ASSESSEE HAS NEVER BEEN SERVED WITH THE ORDER DATED 30.08.2011 P ASSED BY THE LD. CIT (A) AND CAME TO KNOW ABOUT THE ORDER ONLY WHEN THE ASSESSEE RECEIVED NOTICE FOR RECOVERY OF DEMAND. THE ASSESSEE THEN APPLIED FOR CERTIFIED COPY OF THE ORDER WHICH WAS RECEIVED ON 08.04.2019 AND IMMEDIATELY THEREAFTER F ILED THE APPEAL ON 03.05.2019 3 ITA NO. 651/JP/2019 SHRI BANWARI LAL VS. ITO WARD 7(2), JAIPUR. BEFORE THIS TRIBUNAL. THUS THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE RECEIPT OF THE LD. CIT (A)S ORDER SHOULD BE TAKEN AS ON 08 .04.2019 WHEN THE ASSESSEE RECEIVED THE COPY OF THE ORDER FIRST TIME AND FILED THE APPEAL WITHIN 30 DAYS OF RECEIPT OF THE CERTIFIED COPY OF APPELLATE ORDER AN D IT BE TREATED AS THERE WAS NO DELAY IN FILING THE APPEAL. IN SUPPORT OF THE AB OVE, AN AFFIDAVIT DATED 25.09.2019 DULY SWORN IN BY SHRI BANWARI LAL, THE ASSESSEE, HA S BEEN FILED BEFORE THIS TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE CITING THE JUDGMEN T OF HONBLE HIGH COURT IN THE CASE OF VIJAY VISHAN MEGHANI VS. DCIT, (2017) 398 I TR 250 (BOMBAY) AND HONBLE SUPREME COURT IN CASE OF IMPROVEMENT TRUST VS. UJAG AR SINGH, CIVIL APPEAL NOS. 2395 OF 2008 DATED 26.06.2010 (SC), AND VARIOUS OTH ER DECISIONS, SUBMITTED THAT THE DELAY IN FILING THE APPEAL MAY BE CONDONED BY T HE APPELLATE AUTHORITY REQUIRING SUBSTANTIAL JUSTICE TO THE ASSESSEE AND THE ORDER O F THE LD. CIT (A) BE SET ASIDE AND THE MATTER MAY BE REMANDED TO THE RECORD OF THE LD. CIT (A) FOR DECIDING THE SAME AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO TH E ASSESSEE. 4. ON THE OTHER HAND, THE LD. D/R HAS VEHEMENTLY O PPOSED TO THE REQUEST OF REMANDING THE MATTER TO THE RECORD OF THE LD. CIT ( A) AND SUBMITTED THAT THE LD. CIT (A) HAS GRANTED NUMBERS OF OPPORTUNITIES TO THE ASS ESSEE BUT NOBODY HAS APPEARED ON THE DATE OF HEARING DESPITE THE NOTICES WERE ISS UED TO THE ASSESSEE. THEREFORE, WHEN THERE IS NO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, THEN NO FURTHER OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE AO MADE THE ADDITION ON THE GROUND THA T THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICES AND LACK OF EXPLANATION O N THE BANK DEPOSITS. THE AO HAS 4 ITA NO. 651/JP/2019 SHRI BANWARI LAL VS. ITO WARD 7(2), JAIPUR. PASSED THE ASSESSMENT ORDER UNDER SECTION 144 OF TH E IT ACT, WHICH WAS CONFIRMED BY THE LD. CIT (A) BY OBSERVING IN PARA 2.2 AS UNDE R :- 2.2. DURING THE APPELLATE PROCEEDING, VARIOUS NOT ICES WERE ISSUED AND SERVED THROUGH REGISTERED POSIT TO THE APPELLAN T, HOWEVER, NO COMPLIANCE WAS MADE IN THIS REGARD. THE DETAILS OF SAME ARE AS UNDER S.N. DATE OF NOTICE D ATE OF HEARING REMARKS 1. 26.04.2011 11.05.2011 NO RESPONSE FROM APPELLANT. 2. 12.07.2011 29.07.2011 - DO - 3. 12.08.2011 30.08.2011 - DO - FROM THE ABOVE FACTUAL POSITION AND ALSO IN VIEW OF PERSISTENT NON COMPLIANCE ON THE PART OF THE APPELLANT IN THE ASSE SSMENT PROCEEDINGS AS DISCUSSED ABOVE, IT IS FELT THAT THE APPELLANT I S A HABITUAL DEFAULTER AND ALSO NOT INTERESTED IN PURSUING HIS PRESENT APP ELLANT PROCEEDING. IN VIEW OF THE SAME, I HAVE LEFT WITH NO OPTION BUT TO DECIDE THE ISSUE, UNDER CONSIDERATION, BASED ON THE MATERIALS AVAILAB LE WITH THE RECORDS AS BEING DISCUSSED HEREIN UNDER. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, THE R EASONS AND FINDINGS GIVEN IN THE ORIGINAL AND REASSESSMENT PROCEEDING A ND ALSO IN ABSENCE OF ANY COUNTER SUBMISSION/DEFENSE MADE AVAILABLE BY THE APPELLANT IN THE PRESENT PROCEEDING, I HEREBY CONFIRM THE INVOCA TION OF SEC. 144 OF THE ACT AND ALSO THE ADDITIONS OF RS. 1,44,00,000/- TOWARDS UNEXPLAINED DEPOSITS IN BANK ACCOUNTS AND RS. 5618/ - INTEREST EARNED THEREON, MADE ON THESE ACCOUNTS, IN THE APPELLANT C ASE. THUS THE SOLE EFFECTIVE GROUND OF APPEAL IS DISALLOWED. 5 ITA NO. 651/JP/2019 SHRI BANWARI LAL VS. ITO WARD 7(2), JAIPUR. SINCE THE IMPUGNED ORDER OF THE LD. CIT (A) DOES NO T TOUCH THE MERITS OF THE ISSUE REGARDING THE ADDITION MADE BY THE AO, THEREFORE, H AVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN THE INTERES T OF JUSTICE, WE GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION BEFORE THE LD. CIT (A). ACCORDINGLY, SUBJECT TO THE COST OF RS. 5,000/-, WE SET ASIDE THE MATTER PERTAINING TO THE ASSESSMEN T YEAR 2007-08 TO THE RECORD OF THE LD. CIT (A) FOR DECIDING THE SAME AFRESH AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE AS WELL AS AFTER CONSIDERING THE WRITTEN S UBMISSIONS AND OTHER SUPPORTING EVIDENCE, IF ANY, TO BE FILED BY THE ASSESSEE. THE ASSESSEE HAS TO PRODUCE THE PROOF OF PAYMENT OF COST BEFORE THE LD. CIT (A). 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/02/20 21. SD/- SD/- FOE FLAG ;KNO LANHI XKSLKBZ (VIKRAM SINGH YADAV) ( SANDEEP GOSIAN ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 02/02/2021. DAS/ 6 ITA NO. 651/JP/2019 SHRI BANWARI LAL VS. ITO WARD 7(2), JAIPUR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-SHRI BANWARI LAL, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-THE ITO WARD 7(2), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 651/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR