Sunil Kumar Sahay, Ranchi V. ITO WARD-1(1), Ranchi

ITA 75/RAN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9705 (ITAT-RANCHI)
• Duration Of Justice: 2 year(s) 4 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 31-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL
• Assessee Lawyers: R K KAUSHAL
• Section: 69

Judgement Text

1 ITA NO. 75 /RAN/ 20 1 7 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE SHRI N.S.SAINI , ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER ITA NO. 75 /RAN/201 7 A.Y. : 20 08 - 2009 SUNIL KUMAR SAHAY, QTR.NO.E - 39, SECTOR - 3, HEC COLONY, RANCHI - 834004 V S I TO WARD - 1 ( 1 ), RANCHI P AN NO. : A BUPS 2802 B (APPELLANT ) . RESPONDENT ASSESSEE BY : SHRI R.K.KAUSHAL, CA REVENUE BY :SHRI P.K.MONDAL , JCIT DATE OF HEARING : 2 9 . 05 .201 8 DATE OF PRONOUNCEMENT : 30 . 05 .201 8 O R D E R PER PAVAN KUMAR GADALE, JM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT ( A ) , RANCHI , DATED 14.12.2016 FOR THE ASSESSMENT YEAR 20 08 - 2009 . 2. AT THE TIME OF HEARING LD. AR OF THE ASSESSEE HAS FILED AN APPLICATION SEEKING ADJOURNMENT AND THE SAME HAS BEEN WITHDRAWN AND ACCORDINGLY THE ADJOURNMENT APPLICATION FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN . 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1 . THAT THE ASSESSMENT ORDER IS BASED ON WRONG APPRECIATION OF FACTS, BASED ON WHIMS AND PRESUMPTIONS AND IS NOT SUPPORTED BY PROPER FACTS AND PROPER APPRECIATION OF LAW . 2 . WHETHER THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING ADDITION OF RUPEES 11,95,500/ - ALLEGING THAT THE INVESTMENT WERE MADE BY THE ASSESSEE AN D HAS INVESTED AN AMOUNT AND THE SAID AMOUNT IS ASSESSABLE U/S 69 OF THE INCOME TAX ACT, 2 ITA NO. 75 /RAN/ 20 1 7 1961 & WITHOUT CONSIDERING THE EXPLANATIONS AS SUBMITTED BY THE ASSESSEE AND WITHOUT APPLYING THE FACTS OF THE CASE AND LEGAL PROVISIONS ?? . 3 . WHETHER THE ASSESSING OF FICER WAS JUSTIFIED IN IGNORING THE VERY BASICS OF ISSUING NOTICE U/S 147/148 AND THE POINTS FOR WHICH THE PERMISSION OF THE COMMISSIONER OF INCOME TAX WAS OBTAINED AND MAKING THE ADDITION WHICH WERE NOT CONSENTED TO BY THE COMMISSIONER OF INCOME TAX WITHO UT APPLYING THE FACTS OF THE CASE AND LEGAL PROVISIONS ?? 4 . WHETHER THE INCOME TRULY AND FULLY ASSESSABLE IN THE HANDS OF FIRMS CAN BE JUSTIFIABLY ASSESSED IN THE HANDS OF THE PARTNERS OF THE FIRM?? 5 . ANY OTHER GROUNDS OF APPEAL WHICH THE ASSESSEE MAY THINK FIT IN THE LIGHT OF THE CIRCUMSTANCES AND FITNESS OF THE CASE AT THE TIME OF HEARING TO GET THE JUSTICE FORM THE HONBLE SIR. 4 . BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS OF SRI ADIYA VIKRAM JAISWAL FOR THE ASSESSMENT YE AR 2010 - 2011, THE AO NOTED THAT M/S ABC CONSTRUCTION IS NOT FILING ITS RETURN OF INCOME. THE AO HAD EVIDENCE IN HIS POSSESSION FROM THE CASE OF SRI ADIYA VIKRAM JAISWAL THAT LAND WORTH RS.56,61,456/ - WAS SOLD IN THE F.Y.2009 - 10. THE ABOVE LAND WAS PURCHASE D ON 13.05.2008 AND 23.05.2008 BY MAKING PAYMENT OF RS.20,91,000/ - AND RS.11,43,000/ - . PAYMENT OF RS.23.91 LAKHS MAKING PAYMENT OF 20,91,000/ - AND RS.9,00,000/ - RESPECTIVELY. FURTHER RS.8,43,000/ - WAS PAID IN THE FINANCIAL YEAR 2008 - 09. THE AO THEREFORE R EASON TO BELIEVE THAT INVESTMENT FOR THE FINANCIAL YEAR 2007 - 08 RELEVANT TO A.Y.2008 - 09 AS WELL AS INTEREST AND REMUNERATION TO PARTNERS WAS NOT DISCLOSED BY THE FIRM. CONSIDERING THE ABOVE FACT S NOTICE U/S.148 OF THE ACT WAS ISSUED ON 28.03.2014. HOWEVER , NO COMPLIANCE TO THIS NOTICE WAS MADE, RATHER THE ASSESSEE DENIED HAVING MADE ANY SUCH TRANSACTION AND ASKED THE AO TO SUPPLY INFORMATION AS WAS IN HIS 3 ITA NO. 75 /RAN/ 20 1 7 POSSESSION. ACCORDINGLY THE ASSESSEE WAS SUPPLIED WITH THE COPIES OF THE PURCHASE DEEDS . THEREAFTER AO COMPLETED THE ASSESSMENT MAKING ADDITION OF RS.11,95,500/ - U/S.69 OF THE ACT AND ASSESSED THE TOTAL INCOME AT RS. 16,90,520/ - AND PASSED ORDER U/S.147/143(3) OF THE ACT, DATED 28.03.2015. 5 . AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE HAS FILED AN APPE AL WITH THE CIT(A). IN THE APPELLATE PROCEEDINGS THE ASSESSEE ARGUED THE GROUNDS AND REITERATED THE SUBMISSIONS MADE BEFORE THE AO. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND THE FINDINGS OF AO, DISMISSED THE APPEAL OF THE ASSESSEE. 6 . A GGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 7 . LD. AR BEFORE US SUBMITTED THAT THE ORDER PASSED BY THE AO IS BAD IN LAW AND ALSO THE ISSUE OF NOTICE U/S.148 OF THE ACT IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND ASSESSMENT HAS TO BE QUASHED AND ALSO THE ADDITION MADE U/S.69 OF THE ACT BY THE AO AND CONFIRMED BY THE CIT(A) IS WITHOUT ANY BASIS AND PRAYED FOR ALLOWING THE APPEAL. 8 . CONTRA, L D.DR RELIED ON THE ORDERS OF LOWER AUTHORITIES . 9 . WE HEARD T HE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA FACIE, ON PERUSAL OF THE GROUNDS OF APPEAL, WE FOUND THAT THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS RAISED ADDITIONAL GROUND OF APPEAL WHEREIN HE HAS CHALLENGED THE ORDER PASSED U/S.147 OF THE ACT, WHICH IS AS UNDER : - 4 ITA NO. 75 /RAN/ 20 1 7 WHETHER THE ASSESSING OFFICER WAS JUSTIFIED IN IGNORING THE VERY BASICS OF ISSUING NOTICE U/S 147/148 AND THE POINTS FOR WHICH THE PERMISSION OF THE COMMISSIONER OF INCOME TAX WAS OBTAINED AND MAKING THE ADDITION WHICH WERE NOT CONSENTED TO BY THE COMMISSIONER OF INCOME TAX WITHOUT APPLYING THE FACTS OF THE CASE AND LEGAL PROVISIONS ?? WE FIND THAT THIS GROUND HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND ACCORDINGLY, WE CONSIDER IT APPROPRIATE TO REMIT THE ENT IRE DISPUTED ISSUE TO THE FILE OF CIT(A), WHO SHALL CONSIDER THE GROUND AND VERIFY AND EXAMINE THE ISSUE AFRESH AND PASS ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE AND THE ASSESSEE SHALL COOPERATE IN SUBMITTING THE INFORMATION BEFORE THE CIT(A). HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 / 05 /201 8 SD/ - SD/ - ( N.S.S AINI ) ( PAVAN KUMAR GADALE ) ACCOUNTANT MEMBER JUDICIAL MEMBER RANCHI, DATED 30 / 05 /201 8 PRAKASH KUMAR MISHRA , SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, //TRUE COPY// SR.PS, ITAT, RANCHI 1. THE APPELLANT SUNIL KUMAR SAHAY, QTR.NO.E - 39, SECTOR - 3, HEC COLONY, RANCHI - 834004 2. THE RESPONDENT ITO WARD - 1(1), RANCHI 3. THE CIT(A) CONCERNED 4. CIT , CONCERNED 5. DR, ITAT, RANCHI 6. GUARD FILE.