Rajesh Jindal, Ludhiana V. CIT III, Ludhiana

ITA 702/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90247 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 14-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR AMA RVEER SINGH
• Keywords: Gift; Opportunity of being heard; Period of limitation; Reasonable cause; Corroborative evidences; Condonation of delay
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NOS. 702 & 914/CHD/2013 ASSESSMENT YEAR 2008-09 SHRI RAJESH JINDAL VS THE CIT-II I, C/O M/S UNICON BUILDERS LUDHIANA. CONTRACTORS, PLOT NO. 4 VALLABH VIHAR, RAJPURA ROAD, LUDHIANA. PAN: AFKPJ4889H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : DR. AMAR VEER SINGH DATE OF HEARING : 14.07.2015 DATE OF PRONOUNCEMENT : 21.07.2015 O R D E R PER BHAVNESH SAINI,JM THIS ORDER SHALL DISPOSE OF BOTH THE APPEALS FILED BY THE ASSESSEE. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE A PPEALS ARE DECIDED AS UNDER. ITA 702/CHD/2013 3. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX-III LUDHIANA DATE D 2 14.01.2013 FOR ASSESSMENT YEAR 2008-09 UNDER SECTIO N 263 OF THE ACT ON THE FOLLOWING GROUNDS : 1. THAT THE LEARNED CIT-III, LUDHIANA HAS ERRED IN ASSUMING THE JURISDICTION U/S 263 OF THE INCOME TAX A CT AND THEREBY ERRED IN ENHANCING THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER BY A SUM OF RS. 15,00,000/-. 2. THAT THE LEARNED CIT-III, LUDHIANA HAS FAILED TO C ONSIDER THE FACT THAT THE ASSESSMENT WAS FRAMED AFTER DUE APPLICATION OF MIND AND VERIFICATION MADE BY THE CONCE RNED ASSESSING OFFICER AND, THEREFORE, THE FINDING OF THE CI T THAT THE ASSESSMENT HAVING BEEN FRAMED WITHOUT APPLICATION OF MIND BY THE ASSESSING OFFICER IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT THE LEARNED CIT-III, LUDHIANA HAS ERRED IN GIVING HIS FINDING THAT THE ORDER AS PASSED BY THE ASSESSI NG OFFICER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERE ST OF REVENUE. 4. THAT WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE LEARNED CIT-III, LUDHIANA HAS EVEN OTHERWISE ERRED IN MAKING THE ADDITION OF RS.15 LACS ON ACCOUNT OF ALLEGED UNE XPLAINED DEPOSITS IN BANK ACCOUNT. 5. THAT NO SUFFICIENT AND REASONABLE OPPORTUNITY WAS AFFORDED TO REPRESENT THE CASE. 4. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE FILED RETURN OF INCOME OF RS. 52,500/-. THE ASSESS EE HAS SHOWN INCOME UNDER THE HEAD PROFIT & LOSS FROM BUS INESS & PROFESSION. THE ASSESSING OFFICER ISSUED QUESTI ONNAIRE AT THE ASSESSMENT STAGE CALLING FOR THE DETAILS OF THE BANK ACCOUNTS MAINTAINED BY ASSESSEE AND ALSO EXPLAINED THE SOURCE OF CREDIT ENTRIES AND PURPOSE OF WITHDRAWAL. THE ASSESSEE FILED REPLY AND COPY OF THE BANK ACCOUNT. EXPLANATION OF CREDIT ENTRY WAS ALSO FILED. THE LD . COMMISSIONER OF INCOME TAX EXAMINED THE RECORD OF T HE CASE IN WHICH ASSESSING OFFICER PASSED THE ASSESSME NT 3 ORDER UNDER SECTION 143(3) OF THE ACT ON 11.11.2010 AND FOUND THAT ASSESSMENT FRAMED BY THE ASSESSING OFFIC ER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF REVENUE. THE ASSESSING OFFICER FAILED TO MAKE RELE VANT ENQUIRIES AND ALSO THERE WAS LACK OF APPLICATION OF MIND. THEREFORE, SHOW CAUSE NOTICE UNDER SECTION 263 OF T HE ACT WAS ISSUED WHICH IS REPRODUCED IN THE IMPUGNED ORDE R IN WHICH THE LD. COMMISSIONER OF INCOME TAX NOTED THAT ASSESSEE HAS DEPOSITED RS. 20 LACS IN BANK OF PATIA LA ON DIFFERENT DATES AND DETAILS OF THESE ENTRIES ALONGW ITH SOURCE OF CREDIT ENTRIES WAS ASKED FOR. IT WAS FOU ND THAT ASSESSING OFFICER HAS FAILED TO MAKE ANY ENQUIRY WI TH REGARD TO THE DEPOSIT OF RS. 20 LACS IN THE BANK AC COUNT. THEREFORE, ASSESSEE WAS SHOW CAUSED WHY THE ASSESSM ENT COMPLETED BY ASSESSING OFFICER ON 11.11.2010 MAY NO T BE ENHANCED/MODIFIED/CANCELLED OR RE-FRAMED UNDER SECT ION 263 OF THE ACT. THE LD. COMMISSIONER OF INCOME TAX , THEREAFTER NOTED IN THE IMPUGNED ORDER THAT THE NOT ICE RETURNED BACK AND THEREAFTER COUNSEL FOR THE ASSESS EE APPEARED AND SOUGHT ADJOURNMENT ON MANY DATES ON DIFFERENT REASONS OF INSPECTING THE RECORD OR FOR G ETTING THE RELEVANT PAPERS. THE LD. COMMISSIONER OF INCOM E TAX NOTED VARIOUS FACTS WITH REGARD TO NON-COOPERATION BY THE ASSESSEE IN THE PROCEEDINGS BEFORE HIM. 5. THE LD. COMMISSIONER OF INCOME TAX, CONSIDERING NON-COOPERATION FROM THE SIDE OF THE ASSESSEE, PROC EEDED TO DECIDE THE MATTER UNDER SECTION 263 OF THE ACT A ND 4 FURTHER NOTED THAT DESPITE SUPPLYING OF THE DOCUMEN TS AND PHOTO COPIES OF RELEVANT PAPERS, THERE IS NO COOPER ATION FROM THE SIDE OF ASSESSEE. IT WAS ALSO NOTED THAT ASSESSEE HAS GIVEN A GENERAL NOTE THAT AMOUNT HAS BEEN DEPOS ITED OUT OF DAY-TODAY WITHDRAWALS MADE FROM THE FIRM M/S UNICON BUILDERS CONTRACTORS AS WELL AS THE AMOUNT RECEIVED FROM MOTHER SMT. SULAKSHNA DEVI AS PER FAM ILY SETTLEMENT. THE PERUSAL OF THE CAPITAL ACCOUNT SHO WED THAT THERE IS A WITHDRAWAL OF RS.3,20,000/- ONLY IN RESPECT OF SHRI RAJESH JINDAL IN ITS CAPITAL ACCOUNT OF M/S UNICON BUILDERS CONTRACTORS. FURTHER SOURCE WAS EXPLAINED THROUGH THE GIFT RECEIVED FROM MOTHER AND WIFE BUT ASSESSEE FAILED TO PROVE GENUINENESS OF THE TRANSAC TION WITH REGARD TO GIFTS RECEIVED. THE ASSESSING OFFIC ER ALSO FAILED TO MAKE ANY ENQUIRY AT THE ASSESSMENT STAGE WITH REGARD TO EXPLANATION OF THE ASSESSEE AND NO SUPPOR TING EVIDENCES HAVE BEEN FILED EVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX. THE LD. COMMISSIONER O F INCOME TAX ALSO EXAMINED THE FAMILY SETTLEMENT DEED AND NOTED THAT HE WAS SATISFIED THAT ASSESSING OFFICER HAS FAILED TO MAKE ENQUIRIES WITH REGARD TO THE SOURCE OF THE DEPOSITS IN THE BANK ACCOUNT AND NO SUPPORTING EVID ENCES HAVE BEEN FILED. THEREFORE, MERE EXPLANATION IS NO T SUFFICIENT. THEREFORE, LD. COMMISSIONER OF INCOME TAX FOUND THAT ADDITION ON ACCOUNT OF CASH DEPOSITS WAS REQUIRED TO BE MADE BY THE ASSESSING OFFICER WITH R EGARD TO UNEXPLAINED CASH DEPOSITS OF RS. 15 LACS ON DIFF ERENT DATES IN THE BANK ACCOUNT. THEREFORE, LD. COMMISSI ONER 5 OF INCOME TAX CONSIDERED THE ASSESSMENT ORDER PASSE D BY THE ASSESSING OFFICER TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. THEREFORE, ASSESSMENT WAS ENHANCED BY RS. 15 LACS. THE LD. COMMISSIONER OF INCOME TAX NOTED VARIOUS JUDGEMENTS IN SUPPORT OF HIS FINDING THAT ORDER WAS ERRONEOUS AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. SINCE NO CORROBORATIVE EVIDENCE WAS FILED, THEREFORE, ADDITI ON WAS MADE AND PENALTY PROCEEDINGS UNDER SECTION 271(1)(C ) OF THE ACT WERE SEPARATELY INITIATED. 6. THE OFFICE NOTED THAT THE APPEAL OF THE ASSESSEE IS TIME BARRED BY 87 DAYS. THE ASSESSEE FILED APPLICA TION FOR CONDONATION OF DELAY AND SUBMITTED THEREIN THAT INI TIALLY THE CASE WAS REPRESENTED BEFORE LD. COMMISSIONER OF INCOME TAX BY SHRI P.N.SINGLA AND LATER ON BY HIS S ON SHRI ARUN SINGLA, ADVOCATE. HOWEVER, DURING THE FA G END OF THE PROCEEDINGS UNDER SECTION 263 OF THE ACT, AS SESSEE HAS CHANGED HIS COUNSEL. AFTER RECEIPT OF THE ORDE R UNDER SECTION 263, CERTAIN RECORDS HAD TO BE TAKEN FROM T HE EARLIER COUNSEL WHICH WERE NOT EASILY AVAILABLE. TH EREFORE, THERE WAS DELAY IN FILING THE APPEAL. IT WAS ALSO EXPLAINED THAT THERE WAS DEATH OF EARLIER COUNSEL SHRI P.N. S INGLA AND ALL THE RECORDS HAD BEEN LYING WITH HIM. THERE FORE, THERE WAS DELAY IN FILING THE APPEAL. THE AFFIDAVI T OF THE ASSESSEE IS ALSO FILED ALON GWITH THE APPLICATIO N FOR CONDONATION OF DELAY. THE LD. COUNSEL FOR THE ASSE SSEE, THEREFORE, SUBMITTED THAT DUE TO DEATH OF EARLIER C OUNSEL, 6 SHRI P.N.SINGLA, THE RECORD COULD NOT BE OBTAINED B ECAUSE HIS SON WAS NOT COOPERATING AND AFTER GETTING THE R ECORD, THE APPEAL WAS FILED. HE HAS, THEREFORE, SUBMITTED THAT DELAY IN FILING APPEAL MAY BE CONDONED. THE LD. DR, HOWEVER, OPPOSED THE REQUEST OF CONDONATION OF DELA Y AND SUBMITTED THAT EVEN THE COUNSEL FOR ASSESSEE DID NO T COOPERATE WITH THE LD. CIT(APPEALS) IN THE PROCEED INGS UNDER SECTION 263 OF THE ACT. THEREFORE, DELAY MAY NOT BE CONDONED. 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND FIND TH AT ASSESSEE HAS REASONABLE CAUSE FOR FAILURE TO FILE T HE APPEAL WITHIN THE PERIOD OF LIMITATION. IT IS EXPL AINED THAT ALL PAPERS WERE LYING WITH THE EARLIER COUNSEL SHRI P.N. SINGLA WHO HAS EXPIRED AND AFTER HIS DEATH, THE PAP ERS LYING WITH HIM COULD NOT BE HANDED OVER ON TIME AND WHEN THE SAME WERE AVAILABLE THROUGH HIS SON, ASSESSEE F ILED PRESENT APPEAL. WE ARE, THEREFORE, SATISFIED THAT ASSESSEE HAS BEEN ABLE TO EXPLAIN THE REASONS FOR FAILURE TO FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION. THEREFORE, WE ACCEPT THE EXPLANATION OF THE ASSESSEE AND CONDONE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. 8. THE LD. COUNSEL FOR THE ASSESSEE ON MERIT SUBMIT TED THAT ASSESSING OFFICER HAS ISSUED SHOW CAUSE NOTICE/QUESTIONNAIRE AT ASSESSMENT STAGE CALLING FO R THE DETAILS OF THE BANK ACCOUNT AND THE SOURCE OF THE C REDIT ENTRIES WHICH WERE EXPLAINED BEFORE ASSESSING OFFIC ER. THEREFORE, THE ISSUE EXAMINED BY THE ASSESSING OFFI CER 7 COULD NOT BE SAID TO BE ERRONEOUS IN SO FAR AS PREJ UDICIAL TO THE INTEREST OF REVENUE. HE HAS SUBMITTED THAT WHEN ASSESSING OFFICER HAS TAKEN ONE OF THE VIEW, THE OR DER SHOULD NOT BE SUBSTITUTED BY THE LD. COMMISSIONER O F INCOME TAX IN THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. THE LD. DR, HOWEVER, SUBMITTED THAT ASSESSING OFFICER HAS FAILED TO MAKE ANY ENQUIRY WITH REGARD TO THE SOURCE OF THE CASH DEPOSITED IN THE BANK ACCOUNT. THEREFORE, LACK OF ENQUIRY ITSELF MAKES OUT A CASE OF INITIATION OF PROCEEDINGS UNDER SECTION 263 OF THE ACT. 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE ASSESSMENT ORDER IS PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT ON 11.11.2010. THOUGH TH E ASSESSING OFFICER HAS ISSUED QUESTIONNAIRE TO THE A SSESSEE WITH REGARD TO CASH DEPOSITS IN THE BANK ACCOUNT AN D THE ASSESSEE ALSO FILED REPLY BUT ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY OF THE SAME AND HAVE NOT DISCUSSED ANYTHING IN THE ASSESSMENT ORDER. THE ASSESSING OF FICER HAS FAILED TO MAKE ANY ENQUIRY WITH REGARD TO SOURC E OF THE CASH DEPOSITS MADE IN THE BANK ACCOUNT AND NO FINDINGS HAVE BEEN GIVEN IN THE ASSESSMENT ORDER. SINCE THE ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY ON T HE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT AT ASSESSMENT STAGE, THEREFORE, FAILURE BY THE ASSESSI NG OFFICER TO MAKE ENQUIRY ON THIS ISSUE IS ALSO ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE WITHIN T HE MEANING OF PROCEEDINGS UNDER SECTION 263 OF THE ACT . 8 WE ARE FORTIFIED IN OUR VIEW BY JUDGEMENT OF HON'BL E DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISES 99 IT R 375, GAUHATI HIGH COURT IN THE CASE OF TARZEN TEA COMPAN Y PVT. LTD. 205 ITR 45 AND MADRAS HIGH COURT IN THE C ASE OF K.A. RAMASWANI CHETTIAR 220 ITR 657. THIS, FINDING S OF LD. COMMISSIONER OF INCOME TAX TO THAT EXTENT ARE CONFIRMED. 10. THE OTHER ISSUE IS WITH REGARD TO OPPORTUNITY G RANTED BY LD. COMMISSIONER OF INCOME TAX AT THE REVISION S TAGE. THE LD. COMMISSIONER OF INCOME TAX NOTED VARIOUS DA TES ON WHICH OPPORTUNITY OF HEARING WAS GIVEN TO THE AS SESSEE IN THE PROCEEDINGS UNDER SECTION 263 OF THE ACT WHI CH WERE NOT PROPERLY AVAILED TO BY THE COUNSEL FOR ASS ESSEE. THEREFORE, THERE IS NO FAULT IN THE ORDER OF THE LD . COMMISSIONER OF INCOME TAX IN PASSING ORDER UNDER SECTION 263 OF THE ACT DUE TO NON-COOPERATIVE ATTIT UDE OF THE ASSESSEE. THIS GROUND OF APPEAL OF ASSESSEE IS ALSO DISMISSED. 11. THE LAST ISSUE IS WITH REGARD TO ADDITION MADE BY LD. COMMISSIONER OF INCOME TAX BY ENHANCING THE ASSESSM ENT BY RS. 15 LACS UNDER SECTION 263 OF THE ACT. 12. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. COMMISSIONER OF INCOME TAX GAVE NOTICE FOR ENHANCEMENT/MODIFICATION/OR CANCELLATION OF THE ASSESSMENT ORDER IN THE SHOW CAUSE NOTICE UNDER SEC TION 263 OF THE ACT. HOWEVER, THE SOURCE OF THE CASH DE POSIT IN 9 THE BANK ACCOUNT WAS NOT APPRECIATED AND PROPERLY EXAMINED BY THE LD. COMMISSIONER OF INCOME TAX AND NO SUFFICIENT OPPORTUNITY WAS GIVEN TO FILE EXPLANATIO N WITH REGARD TO THE SOURCE OF THE CASH DEPOSIT IN THE BAN K ACCOUNT. HE HAS, THEREFORE, SUBMITTED THAT MATTER MAY BE REMANDED TO THE FILE OF LD. COMMISSIONER OF INCOME TAX FOR GIVING OPPORTUNITY OF BEING HEARD TO ASSESSEE T O EXAMINE THE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT BECAUSE LD. COMMISSIONER OF INCOME TAX ENHANCED THE ASSESSMENT. ON THE OTHER HAND, LD. DR RELIED UPON THE IMPUGNED ORDER. 13. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE A RE OF THE VIEW MATTER REQUIRES RE-CONSIDERATION AT THE LE VEL OF THE LD. COMMISSIONER OF INCOME TAX WITH REGARD TO EXAMINATION OF THE SOURCE OF THE CASH DEPOSIT IN TH E BANK ACCOUNT OF THE ASSESSEE. WE HAVE ALREADY NOTED THA T THE ASSESSING OFFICER HAS FAILED TO MAKE ENQUIRY WITH R EGARD TO SOURCE OF CASH DEPOSIT MADE IN THE BANK ACCOUNT OF ASSESSEE AT ASSESSMENT STAGE. THEREFORE, PROCEEDIN GS UNDER SECTION 263 WERE CORRECTLY INITIATED AGAINST THE ASSESSEE. THE LD. COMMISSIONER OF INCOME TAX ALSO GAVE NOTICE UNDER SECTION 263 OF THE ACT TO THE ASSESSEE IN WHICH CIT SHOW CAUSED TO THE ASSESSEE WHY THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER MAY NOT BE ENHANCED/MODIFIED/CANCELLED UNDER SECTION 263 OF TH E ACT. THE LD. COMMISSIONER OF INCOME TAX GAVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE 10 PROCEEDINGS BEFORE HIM AND DUE TO NON-COOPERATIVE ATTITUDE OF THE ASSESSEE, ORDER WAS PASSED AGAINST THE ASSESSEE. HOWEVER, LD. COMMISSIONER OF INCOME TAX WHILE ENHANCING THE ASSESSMENT, HAS CONDUCTED THE PROCEED INGS IN THE CAPACITY AS ASSESSING OFFICER AND THEREFOR E, HE SHOULD HAVE GIVEN SPECIFIC NOTICE TO THE ASSESSEE T O THAT EFFECT THAT HE PROPOSED TO MAKE ADDITION/ENHANCE TH E ASSESSMENT BY RS. 15 LACS BECAUSE HE WAS NOT SATISF IED WITH EXPLANATION OF THE ASSESSEE WITH REGARD TO SOU RCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT. THE LD. COMMISSIONER OF INCOME TAX HAS NOT SHOWN HIS INTENT ION TO ACT AS ASSESSING OFFICER FOR THE PURPOSE OF MAKI NG THE ADDITION OF RS. 15 LACS AGAINST THE ASSESSEE IN THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. FURTHER, AS EXPLAINED BY LD. COUNSEL FOR THE ASSESSEE AND IN AF FIDAVIT OF ASSESSEE THAT - WHEN EARLIER COUNSEL WAS NOT COOPERATING AT REVISION STAGE AND ULTIMATELY HE HAS EXPIRED, THE ASSESSEE MAY NOT BE IN A POSITION TO E XPLAIN PROPERLY THE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT. ORDINARILY, IN ORDERS UNDER SECTION 263 O F THE ACT WHEN A.O. DID NOT MAKE ENQUIRY AT ASSESSMENT ST AGE, MATTERS ARE RESTORED TO A.O. BUT IN THIS CASE, LD. CIT HIMSELF ENHANCED ASSESSMENT, THEREFORE LD. CIT MAY DIRECT ASSESSEE SPECIFICALLY TO FILE ALL EVIDENCES SO THAT MATTER NEED NOT TO RESTORE TO A.O. UNDER SECTION 263 OF IT ACT. 13(I) THE LD. COUNSEL FOR THE ASSESSEE SUBMITTE D BEFORE US THAT IN CASE OPPORTUNITY IS GIVEN TO ASSESSEE, A SSESSEE 11 IS ABLE TO EXPLAIN SOURCE OF THE CASH DEPOSIT IN TH E BANK ACCOUNT THROUGH SUPPORTING AND DOCUMENTARY EVIDENCE S. THE CRUX OF THE IMPUGNED ORDER WOULD SHOW THAT LD. COMMISSIONER OF INCOME TAX ENHANCED ASSESSMENT OF R S. 15 LACS BECAUSE ASSESSEE HAS NOT FURNISHED ANY SUPPORTING EVIDENCE TO EXPLAIN THE SOURCE OF THE CA SH DEPOSIT IN THE BANK ACCOUNT. THEREFORE, CONSIDERIN G THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND EXPLANA TION OF THE ASSESSEE, WE ARE OF THE VIEW ONE MORE CHANCE SH OULD HAVE BEEN GIVEN TO ASSESSEE BY THE LD. COMMISSIONER OF INCOME TAX IN THESE PROCEEDINGS BEFORE HIM TO EXPLA IN SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT AND SHOULD ALSO GIVE OPPORTUNITY TO THE ASSESSEE TO FILE SUPPO RTING EVIDENCES BEFORE HIM IN THE PROCEEDINGS UNDER SECTI ON 263 OF THE ACT. IT, THEREFORE, APPEARS THAT NO SUFFICI ENT OPPORTUNITY HAD BEEN GIVEN TO ASSESSEE IN THIS REGA RD, THEREFORE, TO THAT EXTENT THE MATTER REQUIRES RE- CONSIDERATION BEFORE LD. COMMISSIONER OF INCOME TAX IN THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. 14. WE, ACCORDINGLY, SET ASIDE THE ORDER OF LD. COMMISSIONER OF INCOME TAX UNDER SECTION 263 TO THE EXTENT THAT LD. COMMISSIONER OF INCOME TAX SHALL GI VE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO FILE SUPPORTING EVIDENCES BEFORE HIM IN SUPPORT OF EXPLA NATION TO EXPLAIN THE SOURCE OF THE CASH DEPOSIT IN THE BA NK ACCOUNT. THE LD. COMMISSIONER OF INCOME TAX SHALL G IVE REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE 12 ASSESSEE BEFORE PASSING THE FINAL ORDER TO THAT EXT ENT ONLY. THE MATTER IS, THEREFORE, REMANDED TO LD. COMMISSIO NER OF INCOME TAX TO THE LIMITED EXTENT AS NOTED ABOVE FOR GIVING OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE SOURCE O F THE CASH DEPOSIT IN THE BANK ACCOUNT OF ASSESSEE WITH SUPPORTING DOCUMENTARY EVIDENCES. THIS ISSUE IS, THEREFORE, DECIDED IN FAVOUR OF THE ASSESSEE. 15. NO OTHER POINT IS ARGUED OR PRESSED BEFORE US . 16. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES, AS NOTED ABOVE. ITA 914/CHD/2013 17. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX-III, LUDHIA NA DATED 30.07.2013 FOR ASSESSMENT YEAR 2008-09 CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1 )(C) OF THE ACT. 18. THE FACTS ARE SAME AS HAVE BEEN NOTED IN ITA 702/2013. THE LD. COMMISSIONER OF INCOME TAX AFTER MAKING ADDITION OF RS. 15 LACS ON ACCOUNT OF UNEXPL AINED CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE, I NITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND VIDE ORDER DATED 30.07.2013 LEVIED THE PENALTY OF 100% IN A SUM OF RS. 4,69,910/-. SINCE THE MATTER IN ISSUE ON QUANTUM WITH REGARD TO ADDITION OF RS. 15 LACS HAS BEEN REMANDED TO THE LD. COMMISSIONER OF INCOME TAX 13 FOR LIMITED PURPOSE OF GIVING OPPORTUNITY TO THE AS SESSEE TO EXPLAIN SOURCE OF CASH DEPOSIT IN THE BANK ACCOU NT WITH SUPPORTING EVIDENCE IN THE PROCEEDINGS UNDER SECTIO N 263 OF THE ACT, THEREFORE, WE SET ASIDE THE IMPUGNED OR D3ER DATED 30.07.2013 AND RESTORE THE MATTER IN ISSUE OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT TO TH E FILE OF LD. COMMISSIONER OF INCOME TAX-III LUDHIANA WITH DIRECTION TO RE-DECIDE THE PENALTY MATTER AFTER PAS SING THE ORDER IN PROCEEDINGS UNDER SECTION 263 OF THE ACT A S IS DIRECTED IN ITA 702/2013. THE LD. COMMISSIONER OF INCOME TAX SHALL GIVEN REASONABLE SUFFICIENT OPPORT UNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE P ENALTY ORDER IN THE MATTER. 19. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 20. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA 702/2013 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND ITA 914/2013 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JULY,2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST JULY,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH