THE ITO-1(1), Indore V. SHRI MOHAN SINGH SOLANKI, Indore

ITA 787/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5988 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 15-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Validity of assessment
• Section: 144

Judgement Text

ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO. 787/IND/2016 ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER 1(1) INDORE :: APPELLANT VS MOHAN SINGH SOLANKI INDORE PAN FOTPS 2511J :: RESPONDENT REVENUE BY SHRI RAJIV JAIN ASSESSEE BY NONE ! ' #$ DATE OF HEARING 2.1.2017 %&'( #$ DATE OF PRONOUNCEMENT 2.1.2017 * O R D E R PER SHRI D.T. GARASIA, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A-I, INDORE, DATED 24.3.201 6. ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL CARRYING ON BUSINESS OF AGRICULTURAL ACTIVITI ES FOR THE LAST SEVERAL YEARS. DURING THE ASSESSMENT YEAR 2008 -09 THE ASSESSEE HAS EARNED ONLY AGRICULTURAL INCOME, THEREFORE, HE DID NOT FILE ANY RETURN OF INCOME. TH E ASSESSING OFFICER MADE THE ASSESSMENT ON THE BASIS OF AIR INFORMATION OF SALE OF IMMOVABLE PROPERTY OF RS. 1,96,62,000/- DURING THE FINANCIAL YEAR 2007-08. THE MATTER WAS CARRIED IN APPEAL TO THE LEARNED CIT(A) AND TH E LEARNED CIT(A) DELETED THE ADDITION BY OBSERVING AS UN DER :- 6. GROUND NOS. 2, 3 & 4 : BY THESE GROUNDS THE APPELLANT HAS CHALLENGED THE VALIDITY OF ASSESSMENT CLAIMING THAT NO SUCH TRANSACTION AS MENTIONED IN THE ASSESSMENT ORDER WAS CARRIED OUT BY HIM. THE DETAILED FACTS OF THE CASE AS PER THE ASSESSMENT ORDER ARE REPRODUCED AT PARA NO. ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 3 2 ABOVE AND THE DETAILED SUBMISSIONS OF THE APPELLANT ARE REPRODUCED AT PARA NO. 3 ABOVE. THE CRUX OF THE APPELLANTS CONTENTION IS THAT HE HAS NOT SOLD ANY LAND DURING THE YEAR AND THAT THERE WAS NO DEPOSIT IN HIS ACCOUNT OF THE AMOUNT OF RS. 19662000/- EITHER BY CHEQUE OR BY CASH. PERUSAL OF THE ASSESSMENT ORDER CONFIRMS THE CONTENTION OF THE APPELLANT AS NO DETAILS OF THE PROPERTY SOLD OR THE BANK ACCOUNT IN WHICH THE CASH HAS BEEN DEPOSITED ARE MENTIONED IN THE ASSESSMENT ORDER. DURING THE COURSE OF APPELLATE PROCEEDINGS VIDE THIS OFFICE LETTER F. NO. CIT(A)- I/IND/14-15 THE SUBMISSIONS OF THE APPELLANT WERE FORWARDED TO THE A.O. FOR HIS REPORT HOWEVER TILL DATE NO REPORT HAS BEEN RECEIVED FROM THE A.O. IT IS ALSO RELEVANT TO NOTE THAT AN APPLICATION FOR KEEPING THE DEMAND IN ABEYANCE WAS FILED BY THE ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 4 APPELLANT BEFORE THE A.O. AND THE JCIT-RANGE-I, INDORE WHEREIN ALSO THIS FACT WAS MENTIONED THAT THE TRANSACTION AS MENTIONED IN THE ASSESSMENT ORDER WAS NOT PERTAINING TO HIM. THOUGH THE A.O. REJECTED THE APPLICATION BUT THE APPLICATION WAS ACCEPTED BY THE JCIT. NO OTHER DETAILS ARE AVAILABLE ON RECORD TO ESTABLISH THAT THE TRANSACTIONS AS STATED IN THE ASSESSMENT ORDER PERTAIN TO THE APPELLANT. THE APPELLANT HAS FILED COPY OF HIS BANK ACCOUNT WITH THE STATE BANK OF INDIA SANWER BRANCH IN SUPPORT OF THE CLAIM THAT NO DEPOSITS IN CASH OF RS.19662000/- ARE REFLECTED IN HIS ACCOUNT. HE HAS ALSO FILED COPY OF REVENUE RECORD IN SUPPORT OF HIS LAND HOLDING AND SALE OF THE SAID LAND IN THE FINANCIAL YEAR 2008-09 FOR A TOTAL CONSIDERATION OF RS. 1805000/-. ITN IS ALSO TO BE NOTED THAT THE A.O. IN THE ASSESSMENT ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 5 ORDER HAS STATED THAT THE APPELLANT HAS SOLD IMMOVABLE PROPERTY FOR RS. 19662000/- AND THE SALE CONSIDERATION IS CONSIDERED AS UNEXPLAINED INVESTMENT. IF THE PROPERTY WAS SOLD BY THE APPELLANT THERE WAS NO INVESTMENT MADE BY THE APPELLANT AND IF THE SALE CONSIDERATION IS DEPOSITED IN THE BANK ACCOUNT THE SOURCE CANNOT BE HELD TO BE UNEXPLAINED. KEEPING IN VIEW ALL THE FACTS AVAILABLE ON RECORD IT CANNOT BE SAID THAT THERE WAS ANY MATERIAL TO PROVE THAT THE APPELLANT HAS ENTERED INTO SALE OF ANY PROPERTY FOR RS.19662000/- OR THAT THERE WERE CASH DEPOSITS OR FOR THAT MATTER DEPOSIT BY ANY OTHER MODE OF RS. 19662000/- IN THE BANK ACCOUNT OF THE APPELLANT. THE ADDITION OF RS. 19662000/- IS THEREFORE DIRECTED TO BE DELETED. ALL THE ABOVE GROUNDS OF THE APPELLANT ARE THEREFORE ALLOWED. ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 6 NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE ABOVE FINDING OF THE LEARNED CIT(A). 3. THOUGH THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE BUT THE ASSESSEE DID NOT APPEAR BEFORE THE TRIBUNAL. THEREFORE, THE MATTER WAS HEARD EXPENDITURE- PARTE. 4. THE LEARNED DR SUBMITTED THAT IN THIS CASE DURING T HE COURSE OF APPELLATE PROCEEDINGS, THE SUBMISSIONS OF T HE ASSESSEE WERE FORWARDED TO THE ASSESSING OFFICER FOR HIS REPORT. HOWEVER, TILL DATE NO REPORT WAS RECEIVED FR OM THE ASSESSING OFFICER. THEREFORE, WITHOUT OBTAINING THE REMAND REPORT, THE LEARNED CIT(A) HAS DECIDED THE ISSUE ON THE BASIS THAT THERE IS NO EVIDENCE TO SUGGEST THAT THE ASS ESSEE HAS SOLD ANY LAND AND THE ASSESSEE HAS RECEIVED ANY AMOUNT BY CHEQUE OR CASH IN WHICH WAS DEPOSITED IN THE ACCOUNT OF THE ASSESSEE. HE FURTHER SUBMITTED THAT TH E LEARNED CIT(A) HAS NOT CALLED FOR THE REMAND REPORT AND HE ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 7 DID NOT MAKE ANY INQUIRY FROM THE BANK. AS SUCH, THE LEARNED CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDIT ION. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED DR AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE C ASE, WE ARE OF THE VIEW THAT THAT THE ASSESSING OFFICER RE CEIVED AIR INFORMATION THAT THE AMOUNT OF RS.19662000/- WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE TOWARDS S ALE OF PROPERTY. THEREAFTER NECESSARY INQUIRY WAS MADE FR OM THE ASSESSEE BUT THE ASSESSEE DID NOT COOPERATE. THERE FORE, THE ASSESSMENT WAS MADE U/S 144/147 OF THE ACT. WE AR E OF THE VIEW THAT PROPER OPPORTUNITY WAS NOT AFFORDED T O THE ASSESSING OFFICER FOR SUPPLY OF REMAND REPORT AND AS S UCH THE LEARNED CIT(A) WAS NOT JUSTIFIED IN DECIDING THE APPEAL IN THE ABSENCE OF ANY REMAND REPORT. WE ARE FURTHER OF THE VIEW THAT IN THE ABSENCE OF GIVING PROPER OPPORTUNITY TO THE ASSESSING OFFICER, THE LEARNED CIT(A) WAS NOT JUSTIFI ED IN ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 8 ANNULLING THE ASSESSMENT MADE BY THE ASSESSING OFFICER . OUR VIEW IS FORTIFIED BY THE JUDGMENT OF THE HON'BL E RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. AGRO ENGINEERS; 266 ITR 637 WHEREIN IT WAS CLEARLY HELD AS UNDER :- SECTION 144 OF THE INCOME TAX ACT, 1961 BEST JUDGMENT ASSESSMENT ASSESSMENT YEAR 1990-91 WHETHER WHERE ASSESSING OFFICER MAKES BEST JUDGMENT ASSESSMENT UNDER SECTION 144 WITHOUT AFFORDING AN OPPORTUNITY TO ASESSEE UNDER PROVISO THERETO, SUCH ASSESSMENT CANNOT BE ANNULLED BUT CAN BE SET ASIDE WITH DIRECTIONS TO ASSESSING OFFICER TO MAKE FRESH ASSESSMENT AFTER AFFORDING AN OPPORTUNITY TO ASSESSEE HELD, YES. FOLLOWING THE ABOVE DECISION OF THE HON'BLE RAJASTHAN HIGH COURT, WE HOLD THAT WHERE ASSESSING OFFICER MAKES BES T JUDGMENT ASSESSMENT UNDER SECTION 144 WITHOUT AFFORDI NG AN OPPORTUNITY TO ASESSEE UNDER PROVISO THERETO, SUCH ASSESSMENT CANNOT BE ANNULLED BY THE LEARNED CIT(A) BU T CAN BE SET ASIDE WITH DIRECTIONS TO THE ASSESSING OFF ICER TO MAKE FRESH ASSESSMENT AFTER AFFORDING ADEQUATE ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 9 OPPORTUNITY TO ASSESSEE. WE, THEREFORE, SET ASIDE TH E ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO AFFORD APPROPRIATE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD TO EXPLAIN HIS CASE AND THEN TO MAKE THE ASSESSMENT DE NOVO IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 2 ND JANUARY, 2017. SD/- SD/- ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 3 RD JANUARY, 2017. DN/ ITA NO. 787/IND/2016 ITO VS. MOHANSINGH SOLANKI 10