Prakash Chandra Jain, Udaipur V. ITO, Ward-1(1), Udaipur

ITA 75/JODH/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1972 (ITAT-JODHPUR)
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 22-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRISH MEHTA
• Assessee Lawyers: SHYAM BOKDIA
• Keywords: Onus to prove; Set aside
• Section: 143(1); 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JODHPUR BENCH ES, SMC JODHPUR BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.75/JODH/2019 ASSESSMENT YEAR : 2010-11 SHRI PRAKASH CHANDRA JAIN 67-68, HIRAN MAGRI, SECTOR NO. 8 UDAIPUR (RAJ) VS. THE ITO WARD-1(1) UDAIPUR PAN NO: AAVPJ3696E APPELLANT RESPONDENT ASSESSEE BY : SHRI SHYAM BOKDIA REVENUE BY : SHRI GIRISH MEHTA, JCIT DR DATE OF HEARING : 28/11/2019 DATE OF PRONOUNCEMENT : 28 /11/2019 / ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 16/01/2019 OF LD. CIT(A)-1, UDAIPUR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. ASSESSING OFFICER AND CIT(A) BOTH HAS ERRED IN NOT ACCEPTING THE SOURCE O F MONEY OR CASH RECEIVED FROM JOINT ACCOUNT HOLDERS VIZ. SMT. VIMALA JAIN, PRANIT A JAIN AND NIKHIL JAIN, WHICH THEY HAVE WITHDRAWN FROM THEIR BANK ACCOUNT AND CAPITAL ACCOUNT FROM FIRM AND SAME WAS GIVEN TO THEIR FATHER (APPELLANT) WITHOUT ANY COGENT REASONS OR CONTRARY EVIDENCE IN THE HANDS OF A.O. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ASSESSING OFFICER AND CIT(A) BOTH HAS ERRED IN NOT CONSIDERING THE FA CT THAT APPELLANT WAS HAVING CASH BALANCE IN HIS HANDS FROM EXPLAINED SOURCE AS PER THE CASH FLOW STATEMENT FILED BEFORE HIM AND ADDITION TO THIS ACCOUNT OF RS . 3,30,000/- CONFIRMED WRONGLY. 3. THE APPELLANT HAS RESERVE HIS RIGHT TO ADD OR AL TER ANY OF THE GROUND OF APPEAL AT THE TIME OF HEARING OF THE APPEAL. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E-FILED ITS RETURN OF INCOME ON 23/09/2010 DECLARING AN INCOME OF RS. 8,40,070/- WHICH WAS PROCESSED UNDER 2 SECTION 143(1) OF THE INCOME TAX ACT, 1961 (HEREINA FTER REFERRED TO AS ACT) ON 15/05/2011. LATER ON, THE ASSESSING OFFICER ISSUED THE NOTICE UNDER SECTION 148 OF THE ACT TO REOPEN THE ASSESSMENT. THE ASSESSING OF FICER OBSERVED THAT CASH AMOUNTING TO RS. 16,00,000/- WAS DEPOSITED IN BANK ACCOUNT NO. 784107791 IN THE INIDAN BANK, UDAYPUR BRANCH IN THE NAME OF FIVE PERSONS NAMELY GARIMA, PRANIT, VIMLA, NIKHIL, PRAKASH I.E.; THE ASSESSEE. HE ALSO OBSERVED THAT THE AMOUNT OF RS. 16,00,000/- WAS DISCLOSED IN THE HANDS OF MI SS. GARIMA ON SUBSTANTIVE BASIS WHOSE CASE WAS SELECTED FOR SCRUTINY AND THAT THE A CTION ON PROTECTIVE BASIS WAS TAKEN IN THE HANDS OF OTHER JOINT HOLDER. ON TH E BASIS OF SAID INFORMATION, THE NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO O THER FOUR CASES. THE ASSESSING OFFICER MADE THE ADDITION OF RS. 16,00,000/- IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND EXPLAINED THE SOURCE OF THE DEPOSITS. LD. CIT(A) SU STAINED THE ADDITION OF RS. 3,30,000/- IN THE HANDS OF THE ASSESSEE BY OBSERVIN G THAT THE ASSESSEE DULY DISCHARGED HIS ONUS TO PROVE THE CASH DEPOSIT OF RS . 12,70,000/- FROM GENUINE SOURCES. 5. NOW THE ASSESSEE IS IN APPEAL AND CHALLENGED THE ISSUANCE OF NOTICE UNDER SECTION 148 VIDE GROUND NO. 1 & 2. 6. THE LD. DR SUBMITTED THAT THESE GROUNDS WERE NOT ADJUDICATED BY THE LD. CIT(A) AS THE SAME WERE NOT RAISED BEFORE HIM, SO T HESE ARE THE NEW GROUNDS THEREFORE THE SAME MAY NOT BE CONSIDERED. 7. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE GROUNDS CHALLENGING THE INITIATION FOR REOPENING THE ASSESSMENT IS PURELY L EGAL GROUNDS WHICH CAN BE RAISED AT ANY TIME. HOWEVER HE ADMITTED THAT THIS G ROUND WAS NOT ADJUDICATED BY THE LD. CIT(A). 3 8. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS RAISED THE GROUND CHALLENGING THE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT, FOR REOPENING THE ASSESSMEN T UNDER SECTION 147 OF THE ACT, BUT THE SAME WAS NOT BEFORE THE LD. CIT(A) AND THERE WAS NO DISCUSSION IN THE IMPUGNED ORDER. I THEREFORE, IN THE ABSENCE OF CLEAR FACTS ON RECORD REGARDING THE REOPENING OF THE ASSESSMENT UNDER SEC TION 148 OF THE ACT, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE F ILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH BY CONSIDERING THE LEGAL GROUNDS RAISED BY THE ASSESSEE AND PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. (ORDER PRONOUNCED IN THE OPEN COURT ON 28/11/2019) SD/- ( N.K. SAINI) VICE PRESIDENT AG DATE: 28/11/2019 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. THE CIT(A) 5. DR, ITAT, JODHPUR 6. GUARD FILE