Jhajhan Singh, Bareilly V. Income Tax Officer, Bareilly

ITA 713/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4852 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 01-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARE BEING DISPOSED OF
• Keywords: Principle of natural justice; Source of fund; Condonation of delay

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.713/LKW/2015 ASSESSMENT YEAR:2010-2011 SHRI JHAJHAN SINGH, 1, BIRIYA NARAYANPUR, SARAITALFI, BAREILLY. PAN:BEQPS6481G VS. INCOME TAX OFFICER, WARD-1(2), BAREILLY. (APPELLANT) (RESPONDENT) ITA NO.714/LKW/2015 ASSESSMENT YEAR:2010-2011 SHRI JHAJHAN SINGH, 1, BIRIYA NARAYANPUR, SARAITALFI, BAREILLY. PAN:BEQPS6481G VS. INCOME TAX OFFICER, WARD-1(2), BAREILLY. (APPELLANT) (RESPONDENT) O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE, WHI CH ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT(A), BARE ILLY BOTH DATED 01/10/2015 AND BOTH ARE FOR THE ASSESSMENT YEAR 201 0-2011, ONE IN RESPECT OF QUANTUM PROCEEDINGS AND THE OTHER IN PEN ALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR T HE SAKE OF CONVENIENCE. APPELLANT BY SHRI YOGESH AGRAWAL, ADVOCATE RESPONDENT BY SHRI AMIT NIGAM, D. R. DATE OF HEARING 05/01/2016 DATE OF PRONOUNCEMENT 1 4 /01/2016 2 2. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMEN T YEAR 2010-11 I.E. I.T.A. NO.713/LKW/2015 ARE AS UNDER: I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ), BAREILLY [HERE-IN-AFTER REFERRED TO AS THE LD. CIT (A)'S] ERRED ON FACTS AND IN LAW IN NOT AFFORDING ANY OPPORTUNITY TO THE APPELLANT TO HAVE HIS SAY OR MAK E NECESSARY COMPLIANCE OF THE REASONS RELIED UPON BY HIM IN PASSING THE PRESENT ORDER AND THUS THE ORDER PASSED WITHOUT AFFORDING ANY OPPORTUNITY MAY KINDLY BE ORDERED TO BE QUASHED. II. IN DISMISSING THE APPEAL IN LIMINE THE LD. CIT (A)'S FAILED TO APPRECIATE OR RATHER CHOSE TO IGNORE THE FACT THAT THE PENALTY ORDER WAS RECEIVED ONLY ON 20-06- 2013 AND THUS LAST DATE OF FILING THE APPEAL WAS ACTUALLY 20-07-2013 AND THAT EVEN IF FOR ARGUMENTS SAKE THE ORDER WAS RECEIVED ON 19-06-2013 EVEN THEN THE DUE DATE OF FILING THE APPEAL IS 19-07-2013 (ON WHICH DATE THE APPEAL IS FILED) AND NOT 18-07-2013 AS MENTIONED BY THE LD. CIT (A)'S AND THUS THE APPE AL IS WELL WITHIN LIMITATION AND THEREFORE THE DISMISS AL ON GROUND OF IT BEING DELAYED IS WHOLLY UNJUSTIFIED AG AINST ALL SETTLED PRINCIPLES OF LAW, BIASED AND AN ILLEGA LITY AND THUS THE IMPUGNED ORDER MAY KINDLY BE SET ASIDE AND PENALTY BE ORDERED TO BE DELETED. WITHOUT PREJUDICE TO GROUND NOS. I & II TAKEN ABOV E:- III. THE LD. CIT (A)'S GROSSLY ERRED ON FACTS AND IN LA W IN CONFIRMING THE INITIATION AND LEVY OF PENALTY U/S 271(L)(C) OF THE I.T. ACT, 1961 FOR AN AMOUNT OF RS.3,55,120/- ON THE PRESENT SET OF FACTS AND CIRCUMSTANCES AS NEITHER HAD THE APPELLANT CONCEALE D THE PARTICULARS OF HIS INCOME NOR FURNISHED INACCUR ATE PARTICULARS THEREOF. IV. THE LD. CIT (A)'S WAS NOT AT ALL JUSTIFIED IN C ONFIRMING THE IMPOSITION OF PENALTY LEVIED BY THE A.O. IN A MECHANICAL MANNER WHICH WAS LEVIED BY HIM WITHOUT APPLICATION OF MIND. 3 V. THE IMPOSITION OF PENALTY AND ITS CONFIRMATION B Y THE LD. CIT (APPEALS) IS BAD-IN-LAW BECAUSE THE ADDITIO NS SO MADE WERE NEVER OFFERED FOR TAXATION AND RATHER THE COUNSEL HAD UNDER SOME MISCONCEIVED NOTION OFFERED THE SAME FOR TAXATION WITHOUT THE AUTHORITY AND KNOWLEDGE OF THE APPELLANT AND THIS BY NO MEANS IS OR WAS CONCEALED INCOME OF THE APPELLANT OR WAS FURNISHING INACCURATE PARTICULARS THEREOF. VI. THE PENALTY SO LEVIED AND CONFIRMED ON THE ADDI TION MADE ON ACCOUNT OF DEPOSIT IN BANK OF RS.11,05,000/ - AND AD HOC DISALLOWANCE OF RS.1,50,000/- FROM OUT O F EXPENSES IS BY NO MEANS CONCEALED INCOME AS THE AMOUNT DEPOSITED IN THE BANK IS FROM OUT OF KNOWN AND DISCLOSED SOURCES OF INCOME AND THE OTHER ADDITION IS GENERAL IN NATURE WITHOUT ANY COGENT MATERIAL ON RECORD AND THUS FOR THIS REASON ALONE T HE PENALTY SO CONFIRMED ON THIS ASPECT IS BAD-IN-LAW A ND VOID-AB-INITIO. VII. THE PENALTY SO LEVIED AND CONFIRMED BY THE LD. CIT (A)'S IS BAD-IN-LAW, CONTRARY TO FACTS, LAWS AND PRINCIPLES OF NATURAL JUSTICE AND FAIR-PLAY AND THU S MAY KINDLY BE ORDERED TO BE DELETED. 3. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMEN T YEAR 2010-11 I.E. I.T.A. NO.714/LKW/2015 ARE AS UNDER: I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ), BAREILLY [HERE-IN-AFTER REFERRED TO AS THE LD. CIT (A)'S] ERRED ON FACTS AND IN LAW IN CONFIRMING THE ORDER O F THE A.O. AND IN NOT AFFORDING ANY OPPORTUNITY TO THE APPELLANT TO HAVE ITS SAY OR MAKE NECESSARY COMPLIANCE OF THE REASONS RELIED UPON BY HIM WHILE PASSING THE PRESENT ORDER AND PASSING THE ORDER IN A MECHANICAL MANNER WITHOUT APPLICATION OF MIND AND NOT DECIDING ANYTHING ON THE MERITS OF THE CASE. II. WHILE PASSING THE PRESENT APPEAL ORDER THE LD. CIT (A)S GROSSLY ERRED ON FACTS AND IN LAW IN DISMISSI NG THE APPEAL AS BEING BARRED BY LIMITATION AND HOLDING TH AT THE APPELLANT HAD NOT FILED ANY CONDONATION OF DELA Y APPLICATION WHEREAS THE APPLICATION WAS DULY FILED 4 ALONG WITH THE APPEAL ITSELF CITING THE REASON THAT THE ORDER WAS RECEIVED BY THE PREVIOUS COUNSEL WHO DID NOT COMMUNICATE THE SAME TO THE APPELLANT DUE TO WHICH THE APPEAL WAS DELAYED AND THUS FOR THIS REAS ON ALONE THE APPEAL SO DISMISSED IS ILLEGAL AND THE OR DER SO PASSED IS VITIATED AND BAD-IN-LAW. WITHOUT PREJUDICE TO GROUND NOS. I & II TAKEN ABOVE :- III. THE LD. CIT (A)'S ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.11,05,000/- BEING CAS H DEPOSITED IN BANK BY ALLEGEDLY HOLDING THAT THE SAM E WAS SURRENDERED BY THE ASSESSEE WHEREAS IN FACT THE SURRENDER WAS MADE BY THE THEN COUNSEL SRI. MIRAJ ISLAM UNDER A MISCONCEIVED NOTION AND FURTHER THAT ANY SUCH SURRENDER IS NOT BINDING ON THE ASSESSEE A S HE WAS ONLY SUPPOSED TO REPRESENT THE CASE AND IT W AS NOT WITHIN HIS JURISDICTION TO SURRENDER ANY INCOME AND THUS THE ADDITION SO MADE ON WHIMS AND FANCIES ON A MISCONCEIVED NOTION MAY KINDLY BE ORDERED TO BE DELETED. IV. ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCES OF THE PRESENT CASE THE LD. CIT (A)'S GROSSLY ERRED ON FAC TS IN CONFIRMING THE ADDITION OF RS.11,05,000/- BY CHOOSI NG TO IGNORE THE FACT THAT THE AMOUNT SO DEPOSITED IN THE BANK ACCOUNT IS FROM KNOWN AND DISCLOSED SOURCES OF INCOME AND DOES NOT REPRESENT UNDISCLOSED INCOME AN D THUS THIS ADDITION BEING MADE WITHOUT ANY BASIS MAD E ONLY ON NOTIONS, CONJECTURES AND SURMISES MAY KINDL Y BE ORDERED TO BE DELETED. V. THE LD. CIT (A)'S GROSSLY ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.1,50,000/- BEING A LU MP SUM ADDITION FROM OUT OF THE EXPENSES DEBITED UNDER THE HEAD FREIGHT AND CARTAGE, WAGES, STAFF WELFARE AND SUNDRY EXPENSES ON THE PRETEXT TO COVER POSSIBLE LEAKAGES WITHOUT BRINGING ANY COGENT MATERIAL ON RECORD AS TO WHICH VOUCHER WAS NOT VERIFIABLE OR NO T AVAILABLE ON RECORD AND THUS THE ADDITION BEING DEV OID OF ANY MERIT MAY KINDLY BE ORDERED TO BE DELETED. 5 VI. THE ADDITIONS SO CONFIRMED ARE VERY VERY HIGHLY EXCESSIVE, CONTRARY TO FACTS, LAWS AND PRINCIPLES O F NATURAL JUSTICE AND FAIR-PLAY AND THUS MAY KINDLY B E ORDERED TO BE QUASHED/ANNULLED. 4. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESSE E THAT IN RESPECT OF PENALTY APPEAL I.E. I.T.A. NO.713/LKW/2015, IT WAS HELD BY CIT(A) THAT THE APPEAL IS BELATED BUT IN FACT, THERE IS NO DELAY IN FILING THE APPEAL BECAUSE THE ASSESSMENT ORDER WITH NOTICE OF DEMAND WAS SERV ED ON THE ASSESSEE ON 20/06/2013 AND NOT ON 19/06/2013, AS STATED BY C IT(A) IN PARA 3 OF HIS ORDER AND THE APPEAL WAS FILED BY THE ASSESSEE BEFORE CIT(A) ON 19/07/2013. HE SUBMITTED THAT EVEN IF THE DATE OF SERVICE IS 19/06/2013, THE APPEAL FILED BEFORE CIT(A) ON 19/07/2013 IS WIT HIN 30 DAYS BECAUSE JUNE IS A MONTH OF 30 DAYS ONLY. HE SUBMITTED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR DECISION ON MERIT. 5. REGARDING QUANTUM APPEAL I.E. I.T.A. NO.714/LKW/ 2015, IT WAS SUBMITTED BY HIM THAT ADMITTEDLY, THERE IS SOME DEL AY IN FILING THIS APPEAL BEFORE CIT(A) BUT THIS IS NOT CORRECT AS HAS BEEN S TATED BY CIT(A) IN PARA 3 THAT THE ASSESSEE HAS NOT FILED ANY APPLICATION F OR CONDONATION OF DELAY. HE SUBMITTED THAT IN FACT, APPLICATION WAS FILED BE FORE CIT(A) FOR CONDONATION OF DELAY IN WHICH IT WAS EXPLAINED THAT THE ORDER WAS RECEIVED BY THE ASSESSEES PREVIOUS COUNSEL BUT HE DID NOT C OMMUNICATE THE SAME TO THE ASSESSEE DUE TO WHICH, THE DELAY IN FILING T HE APPEAL SHOULD BE CONDONED. 6. LEARNED D. R. OF THE REVENUE SUBMITTED THAT THER E IS NO VALID REASON FOR DELAY IN FILING THE APPEAL BEFORE CIT(A) AND THEREFORE, ORDER OF CIT(A) SHOULD BE CONFIRMED. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE AR E OF THE CONSIDERED OPINION THAT IN THE FACTS OF THE PRESENT CASE, THE DELAY IN FILING 6 THE APPEAL BEFORE CIT(A) SHOULD BE CONDONED AND THE REFORE, WE CONDONE THE SAME AND RESTORE THE ENTIRE MATTER BACK TO CIT( A) FOR A DECISION ON MERIT AFTER AFFORDING REASONABLE OPPORTUNITY OF BEI NG HEARD TO BOTH THE SIDES. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED:14/01/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT . REGISTRAR