Sh. Ankur Mangleek, Agra V. ITO- 1 (1), Agra

ITA 69/AGR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6953 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 22-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 234B; 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.69/AGR/2010 ASST. YEAR: 2005-06 SHRI ANKUR MANGLEEK, VS. INCOME TAX OFFICER 1( 1), 21-A, NEHRU NAGAR, AGRA. AGRA (PAN : AGUPM 6054 A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANURAG SINHA, ADVOCATE RESPONDENT BY : SHRI VINOD KUMAR, JR. D.R. ORDER PER H.S. SIDHU, J.M. : THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 31.12.2009 PASSED BY THE LD. CIT(A)-I, AGRA ON THE FOLLOWING GROUNDS OF APPEAL :- (1)(A) BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE LEARNED CIT(A) WAS NOT JUSTIFIED IN PASSING EX-PART E ORDER AGAINST THE APPELLANT. (B) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, ASSESSEE WAS NOT ALLOWED SUFFICIENT OPPORTUNITY TO SUBMIT HIS EXPLANATION AND THE ADDITION HAVE BEEN MADE IN UTTE R VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE, CANNOT BE ALLOWED TO SUSTAIN. 2 (2) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE AUTHORITIES BELOW HAVE ERRED BOTH ON FACTS AND IN L AW IN MAKING ADDITIONS OF ` 11,56,290/- UNDER SECTION 68 OF THE I.T. ACT. PROV ISIONS OF SECTION 68 HAS NO APPLICATION TO THE FACTS OF TH E PRESENT CASE. (3) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CREDITS IN BANK PASS BOOK ARE FULLY EXPLAINABLE AND CANNOT BE HELD AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES (4) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDIT ION OF ` 2,80,000/- UNDER SECTION 69 OF THE I.T. ACT. THE ADDITION HAS BEEN MADE ON WRONG ASSUMPTION OF FACTS. (5) BECAUSE INTEREST UNDER SECTION 234B IS EITHER N OT CHARGEABLE OR HAS EXCESSIVELY BEEN CHARGED. (6) BECAUSE, IN ANY VIEW OF THE MATTER THE ORDER IM PUGNED IS BAD ON FACTS AND IN LAW. 2. THE FACTS NARRATED ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED THE IMPUGNED O RDER WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND HE REQUESTED THAT T HE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE CIT(A) TO DECIDE THE SAME AFRESH UNDER LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE. HE FURTHER UNDERTAKES THAT THE ASSES SEE OR HIS LD. AUTHORISED REPRESENTATIVE WILL APPEAR BEFORE THE LD. FIRST APP ELLATE AUTHORITY AND CO-OPERATE 3 IN DISPOSING THE ISSUE IN DISPUTE. THE LD. DEPARTM ENTAL REPRESENTATIVE HAS NOT RAISED ANY OBJECTION ON THE REQUEST OF THE ASSESSEE . 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RELEVANT RECORDS AVAILABLE WITH US, WE ARE OF THE CONSIDERED OPINION THAT NO D OUBT THE LD. FIRST APPELLATE AUTHORITY HAS GIVEN 6 OPPORTUNTIEIS TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM BUT THE ASSESSEE SOUGHT ADJOURNMENTS ON ONE OR OTHER PRETEX TS. BUT, KEEPING IN VIEW OF THE ISSUE IN DISPUTE, THE PRINCIPLE OF NATURAL JUSTICE AND THE UNDERTAKING GIVEN BY THE ASSESSEES COUNSEL FOR CO-OPERATING IN DISPOSING TH E ISSUE IN DISPUTE BEFORE LD. FIRST APPELLATE AUTHORITY, WE ARE OF THE CONSIDERED OPINION THAT THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE IS ACCEPTABLE, WE ACCE PT THE SAME, BY SETTING ASIDE THE ISSUE IN DISPUTE TO LD. FIRST APPELLATE AUTHORITY T O DECIDE THE SAME AFRESH UNDER LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE. IT IS MA DE CLEAR THAT IN CASE THE ASSESSEE SEEKS UNNECESSARY ADJOURNMENTS, THE LD. FIRST APPEL LATE AUTHORITY IS AT LIBERTY TO DECIDE THE ISSUE IN DISPUTE UNDER THE LAW. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 15.07.2 011). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 15 TH JULY, 2011 4 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY