Sanjay Kumar Alias Sanjay Kr. Yadav, V. DCIT,

ITA 79/PAT/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0031 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 06-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDERJI T SINGH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA , . . , BEFORE SHRI CHANDRA MOHAN GARG, J M & SHRI L .P. SAHU, AM ITA NO. 79 / PAT /201 6 ( / ASSESSMENT YEAR : 20 10 - 20 11 ) SANJAY KUMAR ALIAS SANJAY KUMAR YADAV, PROP. HOTEL PALIKA & WINE SHOP, GORIA TOLI, STATION ROAD, PATNA VS. DCIT, CIRCLE - 6, PATNA ./ PAN NO. : AFYPK 5085 L /ASSESSEE BY : SHRI N ISHANT MAITIN, CA /REVENUE BY : SHRI INDERJIT SINGH , CIT - DR / DATE OF HEARING : 1 8 /0 9 /2019 / DATE OF PRONOUNCEMENT : 19 /0 9 /2019 / O R D E R PER BENCH : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY LEARNED CIT(A) - 2 , PATNA , DATED 09 .0 2 .201 6 FOR THE ASSESSMENT YEAR 20 10 - 20 11 . 2. AS PER THE OFFICE NOTE, THERE IS A DELAY OF 78 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY. WE HAVE GO NE THROUGH THE APPLICATION OF THE ASSESSEE AND FOUND THAT THERE IS SUFFICIENT CAUSE FOR DELAY IN FILING THE PRESENT APPEAL BY THE ASSESSEE. LD. DR HAS NO OBJECTION FOR CONDONATION OF DELAY. ACCORDINGLY, WE CONDONE THE DELAY AND APPEAL IS HEARD FINALLY. ITA NO . 79 / PAT /201 6 2 3. THE ASSESSEE IN THIS APPEAL HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - ( I ) FOR THAT THE LEARNED CIT (A) HAS NOT BEEN JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 10,45,788/ - ON ACCOUNT OF THE INCOME FROM SHORT TERM CAPITAL GAIN . (II) FOR THAT THE LEARN ED CIT(A) HAS NOT BEEN JUSTIFIED IN CONFIRMING THE ADDITION OF RS.22,50,000/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT INTO BANK ACCOUNT (III) FOR THAT THE HUMBLE APPELLANT CRAVES FOR LEAVE OF THE HONBLE ITAT, PATNA BENCH PATNA TO TAKE RAISE PRESS PLEAD AN D /OR ARGUE ANY OTHER GROUND OR GROUNDS AS MAY ARISE HEREINAFTER OR DURING THE HEARING OF THE APPEAL: RELIEFS CLAIMED A. THE IMPUGNED ASSESSMENT ORDER BE KINDLY QUASHED, CANCELLED, ANNULLED OR SET - ASIDE. B. THE AMOUNT OF ADDITIONS BY DISALLOWING AND NOT GIVING THE CREDIT, AS EXPLAINED ABOVE, MAY BE DELETED AND/OR CREDIT BE GIVEN. C. ANY OTHER RELIEF OR RELIEFS AS THE LEARNED ASSESSING OFFICER MAY DEEM FIT AND PROPER. AND FOR THIS THE APPELLANT PRAYS ACCORDINGLY. 4. FACTS OF THE CASE ARE THAT THE ASSES SEE IS ENGAGED IN THE HOTEL BUSINESS AND WINE SHOP AND FILED HIS RETURN OF INCOME ELECTRONICALLY ON 14.10.2010 DECLARING TOTAL INCOME AT RS.10,09,060/ - . UPON ISSUANCE OF STATUTORY NOTICES, THE ASSESSEE FILED LEDGER OF SUNDRY CREDITORS, ALL BANK STATEMENTS , LEDGERS AND CONFIRMATION OF ACCOUNT OF SUNDRY CREDITORS ITA NO . 79 / PAT /201 6 3 AND UNSECURED LOAN. THEREAFTER THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S.144 OF THE ACT MAKING VARIOUS ADDITIONS. 5. IN APPEAL, THE CIT(A) DELETED THE ADDITION MADE ON ACCOUNT OF AD - HOC DI SALLOWANCE, HOWEVER, THE CIT(A) RESTRICTED THE ADDITION MADE ON ACCOUNT OF INCOME FROM CAPITAL GAIN TO RS.10,45,788/ - AND FURTHER UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED DEPOSITS INTO THE BANK ACCOUNT, AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 6. LD. AR, BEFORE US, WITH REGARD TO THE ADDITION SUSTAINED BY THE CIT(A) ON ACCOUNT OF INCOME FROM CAPITAL GAIN, SUBMITTED THAT THE ASSESSEE HAD CAPITALIZED THE INCOME FROM LONG TERM CAPITAL GAIN IN HIS C APITAL ACCOUNT FOR A SUM OF RS.84,81,569/ - . THE BASIS OF INCOME FROM LONG TERM CAPITAL GAIN WAS THE DATA BASE AVAILABLE WITH THE ASSESSEE, WHICH WAS FILED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESSING OFFI CER ASSESSED THE INCOME FROM CAPITAL GAIN ON THE BASIS OF DATA AVAILABLE FROM THE ICIC - COM AND COMPLETELY IGNORED THE DATA OF THE ASSESSEE MADE AVAILABLE DURING THE ASSESSMENT PROCEEDINGS. EVEN THE CIT(A) DID NOT CONSIDER THE DATA OF THE ASSESSEE AND CONFI RMED THE ADDITION, WHICH IS NOT SUSTAINABLE AND DESERVES TO BE DELETED. 7. AS REGARDS, ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS INTO THE BANK ACCOUNT, THE LD.AR SUBMITTED THAT THE ASSESSEE ITA NO . 79 / PAT /201 6 4 HAD MADE CASH DEPOSITS OF RS.22,50,000/ - OUT OF THE C ASH WITHDRAWAL FROM THE SAME BANK ACCOUNT FOR A SUM OF RS.38,00,000/ - AND DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE DULY EXPLAINED THE CASH DEPOSIT INTO BANK ACCOUNT IN HIS WRITTEN SUBMISSION DATED 29.12.2015. THEREFORE, THE SOURCE OF THE DISPUTED AM OUNT HAS DULY BEEN EXPLAINED BY THE ASSESSEE AND SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) DESERVES TO BE DELETED. 8. APART FROM THE ABOVE, LD. AR VEHEMENTLY ARGUED THAT THE ASSESSING OFFICER HAS PASSED ASSESSMEN T ORDER U/S.144 OF THE ACT WITHOUT ISSUING ANY SHOW CAUSE NOTICE AND ONLY RELYING ON THE FORM 26AS , MADE THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS INTO THE BANK ACCOUNT. EVEN THE CIT(A) HAS NOT CONSIDERED THE CLAIM OF THE ASSESSEE WITH REGARD TO AVAILABILITY OF CASH WITH THE ASSESSEE AT THE RELEVANT POINT OF TIME. IF THE ASSESSING OFFICER HAD ISSUED ANY SHOW CAUSE NOTICE BEFORE MAKING ADDITION, THE ASSESSEE WOULD HAVE SUBSTANTIATED ITS CLAIM AS THE ASSESSEE WAS HAVING THE SOURCE OF CASH DEPOSITS I NTO THE BANK. THEREFORE, LD. AR, ALTERNATIVELY, REQUESTED THAT ONE MORE OPPORTUNITY MAY KINDLY BE PROVIDED TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE ON BOTH THE GROUNDS BEFORE THE ASSESSING OFFICER. 9. REPLYING TO THE ABOVE, LD. DR ACCEDED TO THE ABOVE CO NTENTIONS OF THE LD. AR OF THE ASSESSEE ONLY FOR THE LIMITED PURPOSE TO REMIT THE ITA NO . 79 / PAT /201 6 5 MATTER TO THE FILE OF ASSESSING OFFICER ON THE ABOVE ISSUE FOR FURTHER VERIFICATION. 10. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND ON PE RUSAL OF THE ENTIRE MATERIAL AVAILABLE ON THE RECORD OF THE TRIBUNAL AS WELL AS THE ORDERS OF BOTH THE AUTHORITIES BELOW, WE FIND THAT THE ASSESSING OFFICER HAS PASSED ASSESSMENT ORDER U/S.144 O F THE ACT. THOUGH THE LD. CIT(A) HAS CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER ON BOTH THE ISSUE, HOWEVER, ON PERUSAL OF THE REMAND REPORT AS REPRODUCED BY THE CIT(A) IN THE APPELLATE ORDER ON BOTH THE ISSUES AS AGITATED BY THE ASSESSEE BEFORE US, WE ARE OF THE VIEW THAT THE REMAND REPORT SUBMITTED BY THE A SSESSING OFFICER SUFFERS FROM PROPER VERIFICATION AND EXAMINATION ON THE PART OF THE ASSESSING OFFICER WITHOUT ISSUING ANY SHOW CAUSE NOTICE AS SUBMITTED BY THE ASSESSEE BEFORE US. BEFORE US LD. AR HAS ALTERNATIVELY PLEADED TO PROVIDE ONE MORE OPPORTUNITY TO SUBSTANTIATE ITS CLAIM WITH PROPER EVIDENCE , TO WHICH LD. DR HAS NO OBJECTION. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIRPLAY AND CONSIDERING THE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE, WE REMIT BOTH THE ISSUES, AS MENTIONED ABOVE, TO THE FILE OF ASSESSING OFFICER TO DECIDE THE SAME, AFTER DUE VERIFICATION AND EXAMINATION. NEEDLESS TO SAY, THE ASSESSEE MAY BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE ASSESSING ITA NO . 79 / PAT /201 6 6 OFFICER FOR EARLY DISPOSAL OF THE CA SE. ACCORDINGLY, BOTH THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 11 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 19 /0 9 /201 9 . SD/ - (L.P.SAHU) SD/ - ( C.M.GARG ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER /PATNA ; DATED 19 / 0 9 /201 9 PRAKASH KUMAR MISHRA , S R.P.S. (ON TOUR) / COPY OF THE ORDER FORWARDED TO : / B Y ORDER, ( SENIOR PRIVATE S ECRETARY ) , / ITAT, PATNA 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, PATNA 6. / GUARD FILE. //TRUE COPY//