Pradip Maruti Powar, Kolhapur V. Income-tax Officer, Ward - 2(2), Kolhapur

ITA 695/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3718 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-02-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 16-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 143(3); 147; 69; 148; 144

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NOS.691 & 695/PUN/2018 / ASSESSMENT YEARS : 2008-09 & 2009-10 PRADIP MARUTI POWAR, 2073, 13 TH LANE, RAJARAMPURI, KOLHAPUR. PAN : AJAPP8749E ....... / APPELLANT / V/S. ITO, WARD- 2(2), KOLHAPUR. / RESPONDENT . / ITA NO.696/PUN/2018 / ASSESSMENT YEAR : 2008-09 SUSHMA PRADIP POWAR, 2073, 13 TH LANE, RAJARAMPURI, KOLHAPUR. PAN : BNOPP8965M ....... / APPELLANT / V/S. ITO, WARD- 2(2), KOLHAPUR. / RESPONDENT ASSESSEE BY : SHRI M. K. KULKARNI REVENUE BY : SHRI M. K. VERMA / DATE OF HEARING : 04.02.2019 / DATE OF PRONOUNCEMENT : 04.02.2019 2 ITA NOS.691, 695 & 696/PUN/2018 / ORDER PER D. KARUNAKARA RAO, AM: ALL THESE THREE APPEALS ARE FILED BY THE MEMBERS OF POWAR FAMILY INVOLVING THE ASSESSMENT YEARS 2008-09 AND 2009-10. 2. IN THESE APPEALS, THE VALIDITY OF REOPENING OF THE ASSESSMENT AND ADDITION ON ACCOUNT OF CASH DEPOSITS MADE IN THE BANK ACCOUNT U/S 68, 69 AND 69A OF THE I.T. ACT, 1961, ARE THE COMMON GROUNDS RAISED BY THE ASSESSEES. FOR THE SAKE OF CONVENIENCE, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMPOSITE ORDER. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEES BROUGHT OUR ATTENTION TO THE ASSESSMENT ORDERS AND SUBMITTED THAT THESE ARE THE EX-PARTE REASSESSMENTS MADE U/S 144 R.W.S. 147 OF THE ACT. THE ASSESSING OFFICER MADE ADDITIONS ON ACCOUNT OF CASH DEPOSITS MADE IN THE BANK ACCOUNT. THE CIT(A) CONFIRMED THE SAID ADDITIONS MADE BY THE ASSESSING OFFICER AND, THEREFORE, THE ASSESSEES ARE IN APPEAL BEFORE US. 4. THE GROUNDS RAISED IN THE CASE OF PRADIP MARUTI POWAR FOR ASSESSMENT YEAR 2008-09 ARE COMMON IN TWO OTHER APPEALS. FOR THE SAKE OF STANDARD REFERENCE, THE GROUNDS FOR ASSESSMENT YEAR 2008-09 ARE EXTRACTED AS FOLLOWS :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE EXPARTE ASSESSMENT UNDER S. 144 R.W.S. 147 SINCE ASSESSEE BEING UNDER THE IMPRESSION THAT WHEN HE DUTIFULLY COMPLIED BY SUBMITTING THE ENTIRE INFORMATION BEFORE INV. WING AND WAS NOT TO DO ANYTHING FURTHER. THE ASSESSEE ALSO DID NOT RECEIVE PROPER ADVISE FROM HIS CONSULTANT. IN 3 ITA NOS.691, 695 & 696/PUN/2018 VIEW OF THIS IT IS PRAYED THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY FOR PRESENTING HIS CASE IN ITS PROPER PERSPECTIVE BEFORE A.O. THE ASSESSEE DECLARES HE WILL FULLY COOPERATE WITH THE DEPTT. IF ONE MORE OPPORTUNITY IS PROVIDED TO HIM. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND SINCE THE ASSESSEE DO NOT MAINTAIN ANY BOOKS OF ACCOUNT THE DEPOSITS MADE IN THE BANK ACCOUNTS CANNOT BE TAXED EITHER UNDER S. 68, 69 OR 69A OF THE ACT AS THE PRE- REQUISITE CONDITION IS MAINTENANCE OF BOOKS OF ACCOUNT. IN THE CIRCUMSTANCES NO ADDITION CAN BE MADE AND AS SUCH ADDITION MADE OF RS.3,95,560/- BE DELETED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 IS ILLEGAL AND WITHOUT JURISDICTION AS NO STATUTORY NOTICE UNDER S. 148 WAS SERVED ON THE ASSESSEE. 4. THE APPELLANT CRAVES TO LEAVE, ADD/AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 5. FROM THE ABOVE, IT IS EVIDENT THAT ALL GROUNDS RELATE TO THE VALIDITY OF THE REASSESSMENT PROCEEDINGS AND MADE ADDITIONS ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT. IT IS ALSO EVIDENT THAT THE CIT(A) PASSED THE ORDER ON 05.02.2018 WITHOUT HAVING THE ASSISTANCE OF EITHER THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE. THE ASSISTANCE OF ACCOUNTANT OF THE ASSESSEE IS EVIDENT ON THE FACE OF THE SAID ORDER OF THE CIT(A). IN THE BACKGROUND OF THE ABOVE FACTS AND THE GROUND NO.1, THE ASSESSEE PLEADS FOR GRANT OF ONE MORE OPPORTUNITY BEFORE THE I.T. AUTHORITIES. 6. ON HEARING BOTH THE SIDES AND WITHOUT GOING INTO THE MERITS OF THE REASSESSMENT PROCEEDINGS ON ONE SIDE AND MERITS OF ADDITION ON THE OTHER, WE FIND MERIT IN THE ARGUMENT OF LD. AR FOR THE ASSESSEE FOR GRANT OF ONE MORE OPPORTUNITY IN VIEW OF THE SET PRINCIPLES OF NATURAL JUSTICE. THEREFORE, WE REMAND ALL THESE THREE APPEALS WITH THE GROUNDS TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AS REQUESTED BY THE LD. COUNSEL FOR THE ASSESSEE. IT IS OBVIOUS THAT THE ANY EX-PARTE ASSESSMENT IS NOT FULL PROOF. SUCH ASSESSMENTS ARE BOUND TO BE FAR FROM THE REALITY ON ASSESSMENT. THE 4 ITA NOS.691, 695 & 696/PUN/2018 ASSESSING OFFICER IS DIRECTED TO ADDRESS ALL THE ARGUMENTS BOTH ON LEGAL AND ON MERITS AND PASS A SPEAKING ORDER ON ALL THE ISSUES. ACCORDINGLY, ALL THE GROUNDS RAISED BY THE ASSESSEES IN THEIR THREE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ASSESSING OFFICER SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH SET PRINCIPLES OF NATURAL JUSTICE. 7. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 04 TH FEBRUARY, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 04 TH FEBRUARY, 2019 SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-2, KOLHAPUR; 4. THE CCIT, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.