Smt. Aneeta Verma, Lucknow V. INCOME TAX OFFICER-3(1), Lucknow

ITA 726/LKW/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1783 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 08-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J S MINHAS
• Assessee Lawyers: K R RASTOGI
• Keywords: Business income; Additional evidence; Assessment record
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 726/LKW/2017 ASSESSMENT YEAR: 2014 - 15 SMT. ANEETA VERMA 532KA/88A, PANDEY TOLA DAND AHIYA ROAD, ALIGANJ LUCKNOW V. INCOME TAX OFFICER RANGE 3(1) LUCKNOW T AN /PAN : AGCPV5278P (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI K. R. RASTOGI, C.A. RESPONDENT BY: SHRI J.S. MINHAS, CIT (DR) DATE OF HEARING: 27 08 201 8 DATE OF PRONOUNCEMENT: 3 1 08 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A), LUCKNOW DATED 30/8/2017. 2 . THE FACTS IN THIS CASE ARE THAT THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 144 OF THE ACT AND THEREIN THE ASSESSING OFFICER MENTIONED THAT ASSESSEE HAS DECLARED TOTAL INCOME OF RS.2,23,586/ - ON THE GROSS TURNOVER OF RS.27,85,794/ - ON PRESUMPTIVE BASIS @ 8% IN THE RETURN FILED FOR ASSESSMENT YEAR 2014 - 15. ASSESSEE WAS PROVIDED OPPORTUNITY TO O R CAUSE TO BE PRODUCED ANY EVIDENCE WHICH SHE FEELS IS NECESSARY IN SUPPORT OF THE SAID RETURN OF INCOME. BUT THE ASSESSEE DID NOT AVAIL SEVERAL OPPORTUNITIES PROVIDED HER OF BEING HEARD. HOWEVER, AS PER INFORMATION AVAILABLE, ASSESSEE HAS ENTERED INTO SE CURITY TRANSACTIONS AMOUNTING TO RS.12,17,34,334/ - WHICH INCLUDES SALE OF ITA NO.726/LKW/2017 PAGE 2 OF 5 SHARE OR UNIT WHICH IS SETTLED OTHERWISE THAN BY THE ACTUAL DELIVERY OR TRANSFER DURING THE YEAR. THAT IS EVIDENTLY BUSINESS RECEIPTS OF THE ASSESSEE FROM NON - SPECULATIVE BUSINESS. S INCE THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE IN HER SUPPORT, THE SOURCE OF THESE TRANSACTIONS REMAINS UNEXPLAINED AND THEY ARE CONSIDERED AS ASSESSEE'S BUSINESS RECEIPTS. THEREFOR E, INCOME OF RS.97, 38,747/ - IS C OMPUTED @ 8% OF TURNOVER OF RS. 12,17,34,3 34/ - AND ADDED TO THE INCOME OF THE ASSESSEE IN RESPECT TO ASSESSMENT YEAR 2014 - 15. THE ASSESSEE'S TURNOVER IS MORE THAN ONE CRORE DURING THE YEAR AND HAS FAILED TO GET THE ACCOUNTING RECORDS AUDITED OR FURNISH AUDIT REPORT AS PER THE REQUIREMENTS OF SECTI ON 44AB, THEREFORE, PENALTY PROCEEDINGS UNDER SECTION 27 1 B OF THE IT ACT 1961 WERE ALSO INITIATED . 3 . BEFORE THE LD. CIT(A), ASSESSEE FILED DETAILED WRITTEN SUBMISSION ALONG WITH SUPPORTING DOCUMENTS AND STATED THAT ASSESSEE HAS DECLARED CORRECT TRANSACTION I N HER INCOME TAX RETURN. ASSESSEE ALSO CONTENDED THAT ASSESSING OFFICER HAS TAKEN TURNOVER OF RS.12,17,34,334/ - FROM SALE OF SHARES AND SECURITIES WITHOUT ANY BASIS AND ASSESSED HER PROFIT BY APPLICATION OF NET PROFIT RATE @ 8%. WRITTEN SUBMISSION OF THE ASSESSEE WAS SENT TO THE ASSESSING OFFICER FOR HIS COMMENTS. FROM THE REMAND REPORT OF THE ASSESSING OFFICER, IT IS SEEN THAT ASSESSING OFFICER HAS NOT OFFERED ANY COMMENT ON THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS AND ALSO HE HAS NOT GIVEN A NY SPECIFIC COMMENT ON THE ADDITION MADE IN THE ASSESSMENT ORDER. LD. CIT(A) AFTER CONSIDERING THE FACTS OF THE CASE, ASSESSMENT ORDER, REMAND REPORT AND THE SUBMISSIONS OF THE ASSESSEE , HAS DISMISSED THE APPEAL OBSERVING THAT ASSESSING OFFICER HAS NOT CONSIDERED AND GIVEN HIS COMMENTS ON ADMISSION OF ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS AND NEITHER ASSESSEE HAS FURNISHED ANY REASON FOR NON - PRODUCTION OF THESE ITA NO.726/LKW/2017 PAGE 3 OF 5 EVIDENCES BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT STAGE AND ALSO ASSESSEE HAS NOT FILED ANY APPLICATION FOR ADMISSION OF THESE ADDITIONAL EVIDENCES. THEREFORE, LD. CIT(A) DID NOT ADMIT THESE EVIDENCES FILED BEFORE HIM AND DECIDED THE MATTER ON THE BASIS OF MATERIALS AVAILAB LE ON RECORD AND UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. 4 . LD. A.R. OF THE ASSESSEE AT THE TIME OF HEARING BEFORE US VEHEMENTLY ARGUED THAT ASSESSEE WAS PREVENTED FOR THE REASONS BEYOND CONTROL FOR NOT APPEARING DURING ASSESSMENT STAGE A S THE COUN SEL OF THE ASSESSEE WAS OUT OF STATION. LD. A.R. OF THE ASSESSEE VEHEMENTLY ARGUED THAT ASSESSMENT COMPLETED UNDER SECTION 144 IS ARBITRARY AND UN - JUDICIOUS SO AS TO THE FACT THAT ASSESSING OFFICER HAS NOT CONSIDERED THE G UIDANCE N OTE ISSUED BY THE INSTIT UTE OF CHARTERED ACCOUNTANT FOR COMPUTING DERIVATIVE INCOME. EVEN DETAILS OF DERIVATIVE INCOME DURING ASSESSMENT YEAR 2014 - 15 OF WEALTH MANTRA LTD. WERE BEFORE THE ASSESSING OFFICER , WHICH WAS ALSO NOT CONSIDERED. LD. A.R. OF THE ASSESSEE FURTHER SUBMITT ED THAT THE LD. CIT(A) HAD CALLED FOR REMAND REPORT WHEREIN ALSO, AS EVIDENT ON RECORD , ASSESSING OFFICER HAS N EITHER GIVEN ANY SPECIFIC FINDING AS TO THE DOCUMENTS FILED BEFORE THE LD. CIT(A) NOR ANY FINDINGS OR REASONS WERE GIVEN FOR MAKING ARBITRARY ADD ITIONS DURING THE ASSESSMENT STAGE AND ON TECHNICAL GROUND LD. CIT(A) WITHOUT ADJUDICATING THE GROUNDS ON MERITS, HAS DISMISSED THE APPEAL OF THE ASSESSEE. LD. A.R. OF THE ASSESSEE PRAYED BEFORE US THAT SINCE ASSESSMENT WAS COMPLETED UNDER SECTION 144 OF THE ACT AND RELEVANT GUIDELINES FOR DERIVATIVE INCOME WAS NOT CONSIDERED BY THE ASSESSING OFFICER; THEREFORE, THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPER ADJUDICATION. ITA NO.726/LKW/2017 PAGE 4 OF 5 5 . LD. D.R., ON THE OTHER HAND, THOUGH RELIED ON THE OR DERS OF THE AUTHORITIES BELOW, CONCEDED TO THE PRAYER MADE BY THE LD. A.R. OF THE ASSESSEE. 6 . WE HAVE PERUSED THE CASE RECORD AND HEARD THE RIVAL CONTENTIONS AND ON EXAMINING ASSESSMENT RECORDS AND THE REMAND REPORT, WE FIND THAT THERE IS NO EVIDENCE TO SHOW THAT ASSESSING OFFICER HAS CONSIDERED THE GUIDELINES ISSUED BY THE INSTITUTE OF CHARTERED ACCOUNTANT FOR COMPUTING DERIVATIVE INCOME AND NEITHER HAS GIVEN ANY SPECIFIC FINDING IN THE REMAND REPORT CALLED FOR BY THE LD. CIT(A). LD. CIT(A) , IN THE ABSENCE OF ANY FINDINGS IN THE REMAND REPORT, HAS NOT ADJUDICATED UPON THE ISSUES ON MERITS AND HAS SUMMARILY DISMISSED THE APPEAL OF THE ASSESSEE ON TECHNICAL GROUND. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORD ER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE IT ON MERITS CONSIDERING THE GUIDELINES PROVIDED FOR COMPUTING THE DERIVATIVE INCOME AND OTHER EVIDENCES WHICH WERE FILED AT THE APPELLATE STAGE AND DECIDE THE ISSUE AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND AT THE SAME TIME WE DIRECT THE ASSESSEE TO PRESENT HERSELF FOR HEARING BEFORE THE ASSESSING OFFICER WITH ALL NECESSARY DOCUMENTS IMMEDIATELY ON RECEIPT OF THIS ORDER. SER VICE OF NOTICE IS DISPENSABLE. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 / 0 8 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31 ST AUGUST , 201 8 JJ: ITA NO.726/LKW/2017 PAGE 5 OF 5 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR