Shri Rajesh Kumar Gupta, Lucknow V. Income Tax Officer- 6(3), Lucknow

ITA 655/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0337 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 02-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Assessee Lawyers: S C AGRAWAL
• Keywords: Application of stay; Additional evidence; Non compliance; Reason to believe
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 655/LKW/2018 ASSESSMENT YEAR: 2013 - 14 RAJESH KUMAR GUPTA HOUSE NO.787 BAZAR BANTHARA, BANTHRA LUCKNOW V. INCOME TAX OFFICER 6(3) LUCKNOW T AN /PAN : AQIPG7276L (APP ELL ANT) (RESPONDENT) S.A. NO.30/LKW/2018 [IN ITA NO. 655/LKW/2018] ASSESSMENT YEAR: 2013 - 14 RAJESH KUMAR GUPTA HOUSE NO.787 BAZAR BANTHARA, BANTHRA LUCKNOW V. INCOME TAX OFFICE R 6(3) LUCKNOW T AN /PAN : AQIPG7276L (APP LIC ANT) (RESPONDENT) ASSESSEE BY: SHRI S. C. AGRAWAL, ADVOCATE DEPARTMENT BY: SHRI C. K. SINGH, D.R. DATE OF HEARING: 25 0 3 201 9 DATE OF PRONOUNCEMENT: 29 0 3 201 9 O R D E R PER A. D. JAIN, V.P . : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. CIT(A) - 2, LUCKNOW , DATED 21/8/2018 , FOR ASSESSMENT YEAR 2013 - 14. THE ASSESSEE ITA NO.655/LKW/2018 & S.A. NO.30/LKW/2018 PAGE 2 OF 5 HAS ALSO FILED STAY APPLICATION FOR STAYING THE DEMAND OF RS.1,25,350/ - . THE F OLLOWING ARE THE GROUNDS OF APPEAL: - 1 . THAT THE P ROCEEDINGS U/S 147 OF THE INCOME TAX ACT ARE BEYOND JURISDICTION. 2. THAT PROCEEDINGS U/S 148 WERE WRONGLY INITIATED INASMUCH AS THERE WAS NO REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT AS REQUIRED U/S 147 OF THE INCOME TAX ACT. 3. THAT NO NOTICE U/S 148 WAS SERVED ON THE ASSESSEE RENDERING THE ASSESSMENT ORDER INVALID. 4. THAT THE LD. CIT (APPEAL) IS WRONG IN HOLDING THAT THE CONFIRMATION AND AFFIDAVIT OF SRI MAHENDRA SHARMA FILED BY THE ASSESSEE HAS NO VALUE IN THE EYES OF LAW A ND CANNOT BE ACCEPTED. 5. THAT THE LD. CIT (APPEAL) WAS WRONG AND CONCLUDED IN AN ARBITRARY MANNER THAT THE ASSESSEE COULD NOT SATISFACTORILY EXPLAINED THE DEPOSIT OF RS. 7,00,000/ - IN THE ACCOUNT MAINTAINED WITH UCO BANK, LUCKNOW. 6. THAT THE TAX AUTHORITI ES WERE WRONG IN COMING TO THE CONCLUSION AND HOLDING THAT NON COMPLIANCE TO THE SUMMONS ISSUED TO SRI MAHENDRA SHARMA IPSO FACTO MEANS THAT CONFIRMATION AND AFFIDAVIT OF SRI SHARMA FILED BY THE ASSESSEE DURING PROCEEDINGS DOES NOT CARRY ANY VALUE IN THE E YES OF LAW. 7. THAT THE LD. CIT (APPEAL) IS WRONG IN HOLDING THAT THE L D . A . O HAD CONDUCTED ENQUIRE TO VERIFY THE GENUINENESS OF THE TRANSACTION WITHOUT APPRECIATING THE FACT THAT MERELY ISSUE OF SUMMONS CANNOT BE SAID THAT AN ENQUIRE WAS MADE AND THEN COM ING TO THE CONCLUSION THAT THE TRANSACTION WAS NOT GENUINE ON THE BASIS OF ASSUMPTION. 8. THAT THE TAX AUTHORITIES WERE WRONG IN MAKING ADDITION OF RS.7,00,000/ - U/S 69 OF THE INCOME TAX ACT. ITA NO.655/LKW/2018 & S.A. NO.30/LKW/2018 PAGE 3 OF 5 9. THAT THE LD. CIT (APPEAL) WAS WRONG IN CONFIRMING THE DISALLO WANCE OF RS.10,000/ - AGAINST CLAIM OF EXPENSES AND WRONGLY ADDED IT TO THE INCOME OF THE ASSESSEE. 2 . THE GROUND NOS. 1 TO 3 AND 9 ARE NOT PRESSED . H ENCE , REJECTED AS NOT PRESSED. 3 . THE FACTS OF THE CASE ARE THAT THERE WAS AN IN FORMATION WITH THE DEPARTMENT T HAT THE ASSESSEE MADE CASH DEPOSIT TO THE TUNE OF RS.10,00,000/ - IN HIS BANK ACCOUNT DURING F.Y. 2012 - 13 AND ALSO PURC H ASED IMMO VABLE PROPERTY VALUED AT RS.56,16,000/ - . THEREFORE, HAVING BELIEF THAT INCOME HA D ESC A PED ASSESSMENT, PROCEEDINGS U/S 147 OF TH E ACT FOR THE ABOVE A S SESS M ENT YEAR UNDER CONSIDERATION WERE INITIATED BY THE A.O . THE ASSESS M ENT WAS COMPLETED AT AN INCOME OF RS. 7,94,050/ - . AGGRIEVED W ITH THIS ORDER , THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A ) . 4 . THE LD. CIT(A) CONFIRMED THE ADDITION OF RS.7 LAKHS MADE BY THE A.O AS UNEXPLAINED CASH DEPOSIT IN THE BANK. 5 . THE ASSESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE. IT HAS BEEN STATED THAT AS PER THE IMPUGNED ASSESSMENT ORDER SHRI MANENDRA SHARM A , WHO HAD ADVANC ED A SUM OF RS. 7,00,000/ - VIDE CHEQUE DATED 27.12.2012 , AS CLAIMED BY THE ASSESSEE , DID NOT APPEAR BEFORE THE A.O AND DID HENCE NO STATEMENT WAS RECORDED REGARDING THE GENUINENESS OF SUCH PAYMENT MADE BY SHRI MANENDRA SHARMA; THAT SHRI MANENDRA SHARMA IS I N POSSESSION OF H OUSE IN HIND NAGAR, LUCKNOW SINCE JANUARY 2013, BUT COULD NOT GET THE R EGISTRY OF THE SAID HOUSE IN HIS NAME DUE TO FINANCIAL CONSTRAINTS AND IT IS FURTHER STATED THAT AN ADVANCE OF RS.7,00,000/ - WAS GIVEN BY SHRI MANENDRA SHARMA TO THE AS SESSEE FOR THE SAID HOUSE; THAT THE ASSESSEE ITA NO.655/LKW/2018 & S.A. NO.30/LKW/2018 PAGE 4 OF 5 SUBSEQUENTLY SENT A LEGAL NOTICE TO SHRI MANENDRA SHARMA FOR NOT COMPLETING THE REGISTRY OF THE CONCERNED HOUSE IN HIND NAGAR, LUCKNOW NOR SETTLING THE FULL AND FINAL CONSIDERATION FOR THE SAME; AND THAT THE SAI D LEGAL NOTICE WAS REPLIED VIDE LETTER DATED 29.12.2018 BY SHRI MANENDRA SHARMA WHEREIN IT WAS STATED THAT HE IS READY TO APPEAR BEFORE THE TAX AUTHORITIES AND FURTHER THAT HE SHALL GET THE R EGISTRY OF THE HOUSE IN HIS NAME AT THE EARLIEST . I T WA S SUBMIT TED THAT THE ABOVE MENTIONED ADDITIONAL EVIDENCE HAS DIRECT AND IMPORTANT BEARING ON THE APPEAL , THEREFORE, THE SAME MAY BE ADMITTED . 6 . ALONG WITH THE APPLICATION, THE ASSESSEE HAS FILED A COPY OF THE LEGAL NOTICE DATED 20/11/2018, ISSUED TO SHRI MANENDRA SHARMA, BY THE ASSESSEE. A COPY OF THE REPLY DATED 29/12/2018, SENT BY SHRI MANENDRA SHARMA TO THE ASSESSEE, IN RESPONSE TO THE AFORESAID NOTICE DATED 20/11/2018, HAS ALSO BEEN FI LED. 7 . FROM THE ABOVE REPLY , IT IS CLEAR THAT NO STATEMENT OF SHRI MANENDRA SH ARMA COULD BE RECORDED BEFORE THE A.O, AS SHRI MANENDRA SHARMA DID NOT APPEAR BEFORE THE A.O, SINCE HE WAS IN DELHI AT THAT TIME. SHRI MANENDRA SHARMA IS NOW WILLING TO PRESENT HIMSELF BEFORE THE A.O IN THIS MATTER. THE EVIDENCE OF SHRI MANENDRA SHARMA I S ESSENTIAL FOR A JUST AND PROPER DECISION IN THE ASSESSMENT OF THE ASSESSEE, SINCE THE DEPOSIT OF RS.7 LAKHS HAS BEEN STATED TO BE ATTRIBUTABLE TO THE SAID SHRI MANENDRA SHARMA AND SHRI MANENDRA SHARMA, AS PER HIS REPLY (SUPRA) DATED 29/12/2018 TO THE ASS ESSEES LEGAL NOTICE DATED 20/11/2018, IS WILLING TO DEPOSE BEFORE THE A.O IN THE MATTER. 8 . IN VIEW OF THE ABOVE, IN THE INTEREST OF JUSTICE, THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IS A DMITTED . THE MATTER IS REMITTED TO THE FILE OF THE A.O, TO BE DEC IDED AFRESH IN ACCORDANCE WITH LAW, IN THE ITA NO.655/LKW/2018 & S.A. NO.30/LKW/2018 PAGE 5 OF 5 LIGHT OF THE AFORESAID ADDITIONAL EVIDENCE, ON RECORDING THE STATEMENT OF SHRI MANENDRA SHARMA, S/O SHRI INDRAPAL GAUR, R/O 201 - C, HIND NAGAR, LUCKNOW. THE ASSESSEE SHALL BE AFFORDED DUE AND ADEQUATE OPPORTUNITY OF HEARING. ALL PLEAS AVAILABLE UNDER THE LAW SHALL REMAIN SO AVAILABLE TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL CO - OPERATE IN THE FRESH PROCEEDINGS BEFORE THE A.O. 9 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS PARTLY ALLOWED AN D THE STAY APPLICATION IS DISPOSED OF AS I N FRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 29 / 0 3 /201 9 . SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 29 /03/ 201 9 JJ: 2503 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR