MEENA JAIN, BAGHPAT V. PR. CIT, MEERUT

ITA 6921/DEL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4251 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 20-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI SWAROOP
• Section: 143(3); 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI E BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER, AND SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO. 6921 /DEL/201 7 [ASSESSMENT YEAR: 20 13 - 14 ] SMT. MEENA JAIN VS. PR. C.I.T. L/H LATE SHRI DEVENDRA KUMAR JAIN MEERUT C/O M/S MALIK & CO. [ADV] 305/7, THAPAR NAGAR MEERUT CITY PAN : AA OPJ 0385 K [APPELLANT] [RESPONDENT] DATE OF HEARING : 1 3 . 0 8 .201 8 DATE OF PRONOUNCEMENT : 1 4 .0 8 .2018 ASSESSEE BY : SHRI SANJAY MALIK , ADV. REVENUE BY : S MT. SHEFALI SWAROOP, CIT - DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, WITH T HIS APPEAL , THE ASSESSEE HAS CHALLENGED THE CORRECTNESS OF THE ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME TAX [APPEALS] MEERUT DATED 21.09.2017 FRAMED U/S 263 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT']. PERTA INING TO ASSESSMENT YEAR 2013 - 14 . 2 2. THE ASSESSEE ALLEGES THAT THE LD. PCIT ERRONEOUSLY ASSUMED JURISDICTI ON U/S 263 OF THE ACT AND ERRED IN TREATING THE ASSESSMENT ORDER DATED 19.09.2015 FRAMED U/S 143(3) OF THE ACT AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3. THE REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH AND THE CASE RECORDS CAREFULLY PERUSED. 4. FACTS ON RECORD SHOW THAT THE ASSESSEE IS A TRADER IN PETROLEUM PRODUCTS AND IS RUNNING A PETROL PUMP. RETURN FOR THE YEAR WAS SELECTED FOR SCRUTINY ASSESSMENT AND AFTER EXAMINING THE BOOKS OF ACCOUNTS OF THE ASSESSEE ON TEST CHECK BASIS WITH RELEVANT DOCUMENTARY EVIDENCES, THE AO FRAMED ASSESSMENT U/S 143(3) OF THE ACT VIDE ORDER DATED 19.09.2015. 5. ASSUMING POWERS VESTED UPON HIM BY THE PROVISIONS OF SECTION 263 OF THE ACT, THE LD. PCIT ISSUED NOTICE U/S 263 OF THE ACT, WHICH REA DS AS UNDER: 3 ON EXAMINATION OF THE RECORDS, IT HAS BEEN NOTICED THAT; (A) FROM THE BALANCE SHEET FILED BY THE ASSESSEE IT IS OBSERVED THAT THE ASSESSEE HAS SHOWN M/S HARSH TELECOM SERVICES AS SUNDRY DEBTORS OF RS. 1300023/ - , THIS AMOUNT OUTSTANDING IN THE BALANCE SHEET FOR THE A. 1. 2012 - 13 ALSO. IT MEANS THAT NO PAYMENT WAS RECEIVED BY THE ASSESSEE FROM THIS DEBTOR. THEREFORE, THE GENUINENESS OF THIS AMOUNT AND CORRESPONDING LIABILITY SIDE WAS REQUIRED TO BE EXAMINED BY THE AO DURING THE ASSESSMENT PR OCEEDINGS. BUI THE AO HAS NOT EXAMINED THIS ISSUE AND ACCEPTED THE SUBMISSION OF THE ASSESSEE WITHOUT MAKING ANY ENQUIRY. (B) THE ASSESSEE HAS SHOWN CASH IN HAND OF RS.55425.63 AND BANK BALANCE OF RS. 921 143.57 IN THE BALANCE SHEET. THE BANK BALANCE ALSO INCLUDES AN AMOUNT OF RS. 470500/' AS TRESTCHEST ACC OUNT. AS PER THE PROVISIONS OF L AW THE CASH SHOULD BE KEPT EITHER IN HAND OR AT BANK. THE EXACT NATURE AND GENUINENESS OF BALANCE SHOWN ON ACCOUNT OF TRESTCHEST ACCOUNT ALONG WITH CORRESPONDING LIABILITY SIDE WAS REQUIRED TO HE EXAMINED BY THE AO. BUT THE AO - HAS NOT MADE ANY ENQUIRY ON THIS ISSUE. 2. IN VIEW OF THE PARA 2 ABOVE, THE ASSESSMENT ORDER PASSED BY THE INCOME TAX OFFICER, WARD - 1 (5), BARA UT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE SINCE THE AO HAS NOT EXAMINED THE ABOVE MENTIONED ISSUES . 4 4. YOU ARE HEREBY CALLED UPON TO SHOW CAUSE AS TO WHY AN APPROPRIATE ORDER UNDER SECTION 263 OF THE IT ACT, 1961 MAY NOT BE PASSED IN YOUR CASE. YOU MAY ATTEND MY OFFICE AND FURNISH YOUR EXPLANATION ON 24.08.2017 AT 12:30 P.M. EITHER IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WITH DOCUMENTARY EVIDENCES IN SUPPORT OF YOUR CONTENTION ALONG WITH COMPLETE BOOKS OF ACCOUNTS, BILL, VOUCHERS, REGISTERS < COPIES OF BANK STATEMENTS ETC. AS MAINTAINED BY YOU. 6. VIDE REPLY DATED 24.08.2017, IT WAS SPECIFICALL Y POINTED OUT TO THE LD. PCIT THAT THE ASSESSEE EXPIRED ON 12.04.2017. IN SPITE OF THIS, THE LD. PCIT, IN HIS WISDOM, FRAMED THE ORDER IN THE NAME OF THE DECEASED ASSESSEE, WHICH MEANS THAT THE ORDER U/S 263 OF THE ACT IS ON A DEAD PERSON. WE CAN SET ASI DE THE ORDER OF THE LD. PCIT ON THIS VERY ISSUE ITSELF. HOWEVER, FOR THE SAKE OF COMPLETENESS OF THE ADJUDICATION, LET US CONSIDER THE POINTS RAISED BY THE LD. PCIT IN HIS NOTICE. I DEBTORS AMOUNTING TO RS. 13 , 0 0 , 023 / - . 7. IT CAN BE SEEN FROM THE NOTICE ITSELF THAT THE LD. PCIT HIMSELF HAS ADMITTED THAT THIS IS A BROUGHT FORWARD DEBIT BALANCE. WE FAIL TO UNDERSTAND HOW THE BROUGHT FORWARD 5 BALANCE COULD MAKE THE PRESENT ASSESSMENT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, KEEPING IN MIND THAT THE BROUGHT FORWARD BALANCE IS A DEBIT BALANCE. II TRESTCHECK ACCOUNT RS. 4,70,500/ - 8. IT APPEARS THAT THE LD. PCIT HAS COMPLETELY MISUNDERSTOOD THE FACTS. THE ASSESSEE HAS SHOWN CASH IN HAND OF RS. 55,425/ - AND BANK BALANCE OF RS. 9,21,143/ - IN THE BALANCE SHEET. THE CASH IN HAND FURTHER INCLUDES AN AMOUNT OF RS. 4,70,500/ - AS TRESTCHECK ACCOUNT. IN THIS LINE OF TRADE UPTO THE BANKING HOURS THE CASH SALES RECEIVED ARE DEPOSITED IN THE BANK. AFTER THE BANKING HOURS, PETTY CASH I S KEPT IN THE PETROL PUMP ITSELF AND BALANCE IS EITHER KEPT IN CHEST IN THE PETROL PUMP ITSELF OR IS TAKEN TO THE RESIDENCE FOR SAFETY PURPOSES. MOREOVER, THE CASH IN HAND IS GENERATED OUT OF THE CASH SALES, WHICH IS INVARIABLY DONE IN THIS LINE OF TRADE. ONCE THE BOOKS OF ACCOUNT HAVE BEEN EXAMINED AND NO ADVERSE INFERENCE HAS BEEN DRAWN IN SO FAR AS THE SALES ARE CONCERNED, WE DO NOT FIND HOW A DEBIT ENTRY CAN MA K E THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE 6 INTEREST OF THE REVENUE. CONSIDERIN G THE FACTS OF THE CASE IN TOTALITY, WE HAVE NO HESITATION IN SETTING ASIDE THE ORDER OF THE LD. PCIT. WE , ACCORDINGLY , RESTORE THE ASSESSMENT ORDER DATED 19.09.2015 FRAMED U/S 143(3) OF THE ACT. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS AL LOWED. THE ORDER IS PRON OUNCED IN THE OPEN COURT ON 1 4 . 0 8 .2018. S D / - S D / - [ K.N. CHARY ] [N.K. BILLAIYA] J UDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 4 T H AUGUST , 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 7 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER