ITO, Jaipur V. MUSTAQ AHMED, Jaipur

ITA 683/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99544 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 06-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Keywords: Business income; Peak credit; Additional evidence
• Section: 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 683/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2008-09 INCOME TAX OFFICER, WARD 4(1), JAIPUR. CUKE VS. MUSTAQ AHMED, 3505, PEERJI KI GALI, MEETHI KOTHIA KA RASTA, MOHALLA PAHARGANJ, SURAJPOLE BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADNPA 3403 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 24/11/2015 MN?KKS'K .KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 30/11/2015 VKNS'K@ ORDER PER: R.P. TOLANI, J.M.: THE REVENUE HAS FILED THIS APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 09/05/2013 FOR THE ASSESSMEN T YEAR 2008-09 RAISING THEREIN THE FOLLOWING GROUNDS AS UNDER:- I. WHETHER THE LD CIT(A) HAS ERRED IN LAW AND IN RESTRICTING THE ADDITION OF RS. 19,69,660/- TO RS. ITA 683/JP/2013_ ITO VS MUSTAQ AHMED 2 1,94,059/- ON THE BASIS OF UNSUPPORTED PRESUMPTIONS ABOUT IT BEING IN NATURE OF BUSINESS RECEIPTS. II. WHETHER THE LD CIT(A) HAS ERRED IN LAW AND IN FA CT IN ASSUMING THAT PEAK CREDIT THEORY WAS APPLICABLE, THOUGH ITS REASONABLENESS AND APPLICATION IN FACTS OF ASSESSEE WAS NOT ESTABLISHED/JUSTIFIED. 2. THE LD. DR CONTENDS THAT THE ASSESSMENT WAS FRAMED EX PARTE U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) A S THE ASSESSEE DID NOT COOPERATE IN COMPLIANCE AND FURNISHING EXPLANAT ION IN RESPECT OF CASH CREDITS DEPOSITED IN THE BANK. HOWEVER IN 1 ST APPEAL BEFORE THE LD CIT(A), A PEAK WORKING WAS FILED BY THE ASSESSEE FOR THE FIRS T TIME AND EXPLANATION WAS FURNISHED WHICH HAS BEEN RELIED WHIL E GIVING THE RELIEF. IT IS CONTENDED THAT THIS MATERIAL FURNISHED BEFORE LD . CIT(A) FOR THE FIRST TIME, CONSTITUTES ADDITIONAL EVIDENCE IN TERMS OF R ULES 46A, THERE IS NEITHER ANY APPLICATION BY ASSESSEE IN THIS BEHALF NOR IT HAS BEEN DULY ADMITTED BY THE LD CIT(A) UNDER RULES 46A OF THE INC OME TAX RULES, 1962. AO HAS NOT BEEN CONFRONTED WITH THIS EVIDENCE AND NO REMAND REPORT WAS CALLED FROM ASSESSING OFFICER AND SUBSTAN TIAL RELIEF HAS BEEN GIVEN. SINCE THERE IS NO NON-COMPLIANCE OF RULE 46A OF THE RULES IN THE ORDER OF THE LD CIT(A) AND PRINCIPLES OF NATURAL JU STICE HAS NOT BEEN FOLLOWED, THE ISSUE RAISED BY REVENUE MAY BE SET ASI DE AND RESTORE BACK TO THE FILE OF THE ASSESSING OFFICER. ITA 683/JP/2013_ ITO VS MUSTAQ AHMED 3 3. LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, CONTENDS THAT ONLY BANK STATEMENT WAS FILED AND THE PEAK WORKING WAS BASED ON IT, EFFECTIVELY NO ADDITIONAL EVIDENCE WAS FILED. ACCORD ING TO HIM, THE PEAK WORKING DOES NOT AMOUNT TO ADDITIONAL EVIDENCE. THE O RDER OF THE LD CIT(A) AFTER PERUSING THE BANK STATEMENT AWARDED THE RELIEF, WHICH IS JUSTIFIED AND HE RELIED ON HIS ORDER. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND MERIT IN THE CONTENTION OF THE LD DR. BEFORE THE ASSESSING OFFICER THE ASSE SSEE DID NOT FURNISH ANY COMPLIANCE OR EXPLANATION TO EXPLAIN THE CASH C REDITS IN THE BANK STATEMENT OR RAISED THE ISSUE FOR APPLICABILITY OF PEAK THEORY AS NO SUCH WORKING WAS SUBMITTED TO THE ASSESSING OFFICER. IN OU R CONSIDERED OPINION, ANY MATERIAL SUPPLIED TO THE LD CIT(A) WITHO UT PRODUCING BEFORE THE ASSESSING OFFICER AMOUNT TO ADDITIONAL MATERIAL , WHICH SHOULD BE ENTERTAINED BY FOLLOWING THE STATUTORY PROCEDURE AS LAID DOWN BY RULE 46A OF THE RULES AND THE SAME SHOULD HAVE BEEN CONF RONTED TO LD. AO, WHICH HAS NOT BEEN DONE IN THIS CASE. 4.1 SIMILARLY, NO REMAND REPORT HAS BEEN CALLED FOR FROM THE LD ASSESSING OFFICER AND THE PEAK WORKING SUPPLIED BY T HE ASSESSEE HAS ITA 683/JP/2013_ ITO VS MUSTAQ AHMED 4 BEEN ACCEPTED WITHOUT GIVING ANY OPPORTUNITY OF BEIN G HEARD TO THE LD ASSESSING OFFICER. IN VIEW OF THESE FACTS AND CIRCUM STANCES AND TO FACILITATE EXPEDITIOUS DISPOSAL AND AVOID REPEATED PROCEDURE CALLING REMAND REPORT, WE ARE INCLINED TO SET ASIDE THE ISSU E BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED F OR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 30/11/2015. SD/- SD/- FOE FLAG ;KNO VKJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH NOVEMBER, 2015 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 4(1), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- SHRI MUSTAQ AHMED, 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. 683/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR