The Income-tax Officer, Amritsar. V. Sh. Nirmal Singh Prop, Amritsar.

ITA 7/ASR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63454 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-08-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 03-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: K R JAIN
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO. 07(ASR)/2012 ASSESSMENT YEAR:2007-08 PAN :APSPS4718IB THE INCOME TAX OFFICER, VS. SH. NIRMAL SINGH WARD 3(3), AMRITSAR. PROP. M/S. BALBIR MACHINE TO OLS, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. AMRIK CHAND, DR RESPONDENT BY:SH. K.R. JAIN, ADV. DATE OF HEARING:21/08/2012 DATE OF PRONOUNCEMENT:27/08/2012 ORDER PER BENCH ; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT(A), AMRITSAR, DATED 04.11.2011 FOR THE ASSESSMENT YEAR 2007-08. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.18,59,228/- MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN SAVING BANK ACCOUNT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACTS THAT OUT OF HEARING 2 DATES SPREAD OVER FOR 1-1/2 YEARS, THE ASSESSEE FIL ED PART INFORMATION ON ONE DATE ONLY AND KNOWINGLY CHOSE NO T TO CO- OPERATE WITH THE DEPARTMENT IN THE MATTER OF PRODU CING RELEVANT RECORDS TO AVOID VERIFICATION OF CASH DEPO SITS MADE BY HIM IN HIS SAVING BANK ACCOUNT, WHICH RESULTED IN F RAMING ASSESSMENT U/S 144 OF THE I.T.ACT, 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN ACCEPTING THE ASSESSEES PLEA T HAT DUE TO DEATH OF HIS MOTHER WHICH TOOK PLACED IN DECEMBER, 2009, HE COULD NOT PRODUCE/FILE THE REQUIRE INFORMATION IRRE SPECTIVE OF THE FACT THAT THE ASSESSEE HAD ALREADY BEEN ALLOWED SUFFICIEINT TIME TO DO SO. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) IS NOT JUSTIFIED IN ACCEPTING THE ADDITIONAL EVIDENCE PRODUCED BEFORE HIM WITHOUT ALLOWING AN OPPORTUNITY TO THE AO TO EXAMINE THE CASH DEPOSITS/WITHDRAWALS AS REQUIRE D UNDER RULE 46A OF THE INCOME TAX RULES, 1962. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OF. 3. THE BRIEF FACTS, AS ARISING FROM THE ORDER OF TH E AO ARE THAT THE ASSESSMENT IN THIS CASE WAS MADE UNDER SECTION 144 OF THE ACT FOR NON- COMPLIANCE MADE BY THE ASSESSEE INSPITE OF NOTICES ISSUED UNDER SECTION 143(2) AND 142(1) OF THE ACT. AS PER COPY OF SAVING BANK ACCOUNT OF THE ASSESSEE FOR THE PERIOD 01.04.2006 TO 31.03.2007 OF PUNJAB AND SIND BANK, SULTANDWIND ROAD, AMRITSAR, DEPOSITS OF RS.18,63,43 1/- WERE FOUND INCLUDING CASH DEPOSITS OF RS.17,09,750/-. INSPITE OF VARIOUS OPPORTUNITIES GIVEN, A NON COOPERATIVE ATTITUDE OF THE ASSESSEE A ND INSPITE OF SHOW CAUSE GIVEN, NO EXPLANATION OF THE SAID DEPOSITS WERE GIV EN BY THE ASSESSEE FOR THE SAID DEPOSITS IN THE BANK ACCOUNT. THE AO, THEREFOR E, ADDED THE SAME TO THE 3 INCOME OF THE ASSESSEE REPRESENTING THE SAME AS INC OME FROM UNDISCLOSED SOURCES. BEFORE THE LD. CIT(A), THE ASSESSEE MADE WRITTEN SUBMISSIONS AND THE LD. CIT(A) VIDE PARA 9 AT PAGE 11 & 12 OF HIS O RDER BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE DELETED THE ADDITIO NS MADE BY THE A.O. 4. THE LD. DR, SH. AMRIK CHAND, ARGUED AT THE OUTSE T THAT THE ADDITIONAL EVIDENCES PRODUCED BEFORE THE LD. CIT(A) HAVE BEEN ADMITTED WITHOUT ALLOWING ANY OPPORTUNITY TO THE A.O., WHICH IS IN C ONTRAVENTION OF RULE 46A OF THE INCOME TAX RULES, 1962. 5. THE LD. COUNSEL FOR THE ASSESSEE, SH. K.R. JAIN, ON THE OTHER HAND, SUPPORTED THE ORDER OF THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. ON PERUSAL OF THE ASSESSMENT ORDER, IT IS FOUND THA T THERE WAS A NON- COOPERATIVE ATTITUDE OF THE ASSESSEE AND INSPITE OF SHOW CAUSE GIVEN, THE EXPLANATION TO THE BANK DEPOSITS WAS NOT SUBMITTED BEFORE THE AO. AS REGARDS THE EXPLANATION GIVEN BEFORE THE LD. CIT(A) , THE SAME SHOULD NOT HAVE BEEN ACCEPTED BY THE LD. CIT(A) WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD TO THE A.O. THE DECISION OF THE LD. CIT (A) IS IN VIOLATION OF RULE OF NATURAL JUSTICE. THE EXPLANATION GIVEN BY THE AS SESSEE SHOULD HAVE BEEN FORWARDED TO THE AO AND AFTER TAKING THE REMAND REP ORT OR THE COMMENTS FROM THE A.O.THEN THE MATTER SHOULD HAVE BEEN DECID ED BY THE LD. CIT(A), 4 WHICH IN THE PRESENT CASE , HAS NOT BEEN DONE BY TH E LD. CIT(A). THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A), WHO WILL FORWARD THE EXPLANATION SUBMITTED BEFORE HIM TO THE AO AND AFTER TAKING REMAND REPORT FROM THE AO, DECIDE THE ISSUE AFRESH BUT BY PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THUS, ALL THE GROUNDS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO.07(ASR)/2012 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH AUGUST, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 TH AUGUST, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. NIRMAL SINGH, AMRITSAR. 2. THE ITO W-3(3), ASR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.