Mithan Lal Prop., Gidderbaha V. The Income tax Officer, Bathinda

ITA 659/ASR/2013

• Counselvise Citation: 65920914 RSA 2013
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-05-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 08-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH MAHAJAN
• Keywords: Loose papers
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO.659 (ASR)/2013 ASSESSMENT YEAR: 2004-05 PAN: AABHM0628K MITHAN LAL, PROP. M/S PUNJAB VS. INCOME TAX OFFIC ER, TUBEWELL STORE, GIDDERBAHA WARD II(I), BHATINDA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. SUBHASH MAHAJAN, ADVOCATE. RESPONDENT BY: SH. TARSEM LAL, DR DATE OF HEARING: 28.05.2014 DATE OF PRONOUNCEMENT: 30.05.2014 ORDER 1) THAT ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 16.08.2013 PASSED BY LEARNED CIT(A), BATHINDA , FOR THE ASSESSMENT YEAR 2004-05 ON THE FOLLOWING GROUNDS: LEGAL ISSUES:- I. REASSESSMENT PROCEEDING HAS NOT BEEN VALIDLY INITIA TED AS THERE WAS NO APPLICATION OF MIND ON THE PART OF THE A.O. AND THAT HE DID NOT MADE UP HIS OWN BELIEF AND ACTED ONLY ON BORROW ED SATISFACTION OF HIGHER AUTHORITIES FOR INITIATING P ROCEEDINGS U/S 147. II. ISSUANCE OF NOTICE U/S 143(2) GOES TO THE ROOT OF J URISDICTION OF THE A.O. TO FRAME ASSESSMENT U/S 143(3). IN THE ABSENCE OF SUCH NOTICE, THE ASSESSMENT FRAMED U/S 143(3) IS VOID, THE PROVI SIONS OF SECTION 292BB DOES NOT APPLY IN THE CASE OF NON-ISSUE OF TH E NOTICE WITHIN THE PRESCRIBED PERIOD. 2 III. THE PROVISIONS OF SECTION 292BB COULD NOT BE CONSTR UED AS RETROSPECTIVE AND TO BE APPLIED PROSPECTIVELY W.E.F . 01.04.2008, SO THESE ARE NOT APPLICATION TO THE YEAR UNDER ASSESSM ENT. ON MERITS: IV. NO PARTICULARS OF ANY SALE ALLEGEDLY HAVING BEEN MA DE TO THE APPELLANT HAS BEEN BROUGHT ON THE RECORD TO JUSTIFY THE STAND OF THE DEPTT. THAT THE AMOUNT MENTIONED IN THE SEIZED LOOS E PAPERS ARE AGAINST THE SALE MADE TO THE APPELLANT. V. FINDING OF THE CIT(APPEALS) THAT SEIZED PAPERS CONT AINED PURCHASES, IN CASH, IS INCORRECT AND NOT BASED ON F ACTS, THE LEARNED CIT(A)S ENTIRE APPROACH TO THE CASE IS THUS WRONG FROM THE VERY BEGINNING. VI. THE LOOSE PAPERS CONTAINING THESE TRANSACTIONS ARE UNSIGNED, VAGUE AND ARE NOTHING MORE THAN DUMB DOCUMENTS HAVING NO EVIDENTIARY VALUE. THE CONTENTS OF THESE LOOSE PAPERS DOES NOT DESCRIBE THE TRANSACTION THE WAY THE A.O. AND CIT(A) HAS DECIPHE RED THEM. VII. THE APPELLANT FROM THE VERY BEGINNING HAS BEEN CATE GORICALLY SAYING THAT HE HAS NOT CONDUCTED ANY BUSINESS WITH M/S AZAD ENGG. WORKS, BHATINDA, NEITHER HAVE GIVEN ANY MONE Y TO THEM, THE APPELLANT HAS COMPLETELY DISASSOCIATED HIMSELF FROM THESE TRANSACTIONS, NO VALID REASON HAS BEEN GIVEN AS TO WHY THE STATEMENT OF M/S AZAD ENGG. WORKS, SHOULD BE ACCEPT ED TO BE TRUE WHILE THE STATEMENT OF THE APPELLANT SHOULD NOT FOU ND AS RELIABLE. VIII. THAT MATERIAL COLLECTED BY THE A.O. BEHIND THE BACK OF THE APPELLANT WERE USED AGAINST THE APPELLANT WITHOUT G IVING THE CHANGE TO CROSS EXAMINE THE OPPOSITE PARTY M/S AZAD ENGG. WORKS. IX. THAT ASSESSMENT MADE BY THE LEARNED ITO IS BASED ON PURE GUESS WITHOUT ANY EVIDENCE OR MATERIAL WHICH COULD BE REL IED UPON, THE ADDITION OF RS. 265000/- U/S 69 MADE BY THE A.O. IS NOT LEGALLY JUSTIFIED. X. THE APPELLANT CRAVES LEAVE TO ADD OR TO AMEND THE A FORESAID GROUNDS BEFORE DISPOSAL OF THE APPEAL. 3 2) FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES; THEREFORE, THERE IS NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3) AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THE LEGAL ISSUES RAISED BY THE ASSESSEE IN GROUND NOS. 1 TO 3 AND REQUESTED THAT THE REVENUE AUTHORITIES HAVE NOT GIV EN ANY OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM BEFORE TH EM. HE ALSO STATED THAT THE ASSESSEE HAS FILED AN AFFIDAVIT DATED 08.11.201 1 BEFORE THE ASSESSING OFFICER IN WHICH THE ASSESSEE HAS STATED THAT HE HA S NOT PURCHASED OR SOLD ANY GOODS FROM M/S AZAD ENGG. WORKS, BATHINDA, AND THERE IS NO DEALING WITH THE SAID FIRM. THE ASSESSEE FURTHER ST ATED IN THE AFFIDAVIT THAT HE HAS NEITHER ADVANCED ANY AMOUNT NOR HE HAS TAKEN LOAN FROM M/S AZAD ENGG. WORKS, BATHINDA. BUT THE REVENUE AUTHORI TY HAS IGNORED THIS AFFIDAVIT AND ON THE BASIS OF MATERIALS ON RECORD C OLLECTED DURING SURVEY AND WITHOUT CONFRONTING THE SAME TO THE ASSESSEE, T HE ADDITION IN DISPUTE HAS BEEN MADE, WHICH IS CONTRARY TO THE LAW. HE REQ UESTED THAT THE ISSUES INVOLVED IN GROUND NOS. 4 TO 9 MAY BE SET ASIDE TO THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER PROVIDING ADEQUA TE OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM BEFORE HIM. 4 4) ON THE CONTRARY, LEARNED DR HAS NOT RAISED ANY S ERIOUS OBJECTION ON THE SECOND REQUEST OF THE ASSESSEE AND RELIED UPON THE ORDER PASSED BY THE REVENUE AUTHORITY. 5) I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE LEVANT RECORDS AVAILABLE ON RECORD AND I AM OF VIEW THAT LEARNED C OUNSEL FOR THE ASSESSEE HAS NOT PRESSED THE LEGAL ISSUES INVOLVED IN GROUND NOS. 1 TO 3 IN WHICH HE HAS CHALLENGED THE INITIATION OF PROCEEDINGS UND ER SECTION 147 OF THE ACT AND ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. KEEPING IN VIEW THE STATEMENT MADE BY LEARNED COUNSEL FOR THE ASSESSEE AT BAR, THE LEGAL ISSUES RAISED BY THE ASSESSEE IN GROUND NOS. 1 TO 3 ARE DISMISSED. 6) AS REGARDS TO THE ISSUES INVOLVED IN GROUND NOS. 4 TO 9, AS REQUESTED BY THE ASSESSEES COUNSEL FOR PROVIDING O PPORTUNITY OF HEARING AND FOR SUBSTANTIATING ITS CLAIM BEFORE THE ASSESSI NG OFFICER, I AM OF THE VIEW THAT THE ASSESSING OFFICER HAS NOT GIVEN ADEQU ATE OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM BEFORE HIM. S IMILARLY, LEARNED FIRST APPELLATE AUTHORITY HAS ALSO NOT GIVEN PROPER OPPOR TUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM IN SPITE OF FACT THAT ALL NECESSARY DOCUMENTS ARE AVAILABLE WITH THE ASSESSEE AND THE SAME HAVE A LSO BEEN FILED BEFORE THE REVENUE AUTHORITY BELOW. I AM NOT COMMENTING UP ON THE MERIT OF CASE BECAUSE IT WILL PREJUDICE TO THE MIND OF THE REVENU E AUTHORITY. THUS, IN 5 THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN VOLVED IN GROUND NOS. 4 TO 9 TO THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER AFFORDING ADEQUATE OPPORTUNITY TO TH E ASSESSEE FOR SUBSTANTIATING ITS CLAIM. 7) IN THE RESULT, THE APPEAL FILED BY ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES, AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MAY, 2014 SD/./- (H.S. SIDHU) JUDICIAL MEMBER DATED: 30 TH MAY, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: MITHAN LAL, PROP. M/S PUNJAB TUBEWELL STORE, GIDDERBAHA 2. THE ITO, WARD II(I), BHATINDA, 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.