Smt. Kiran Sinha, V. I.T.O.,

ITA 79/RAN/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8565 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 05-08-2013
• Court: TRIBUNAL
• Department Lawyers: RAKESH KR DAS JCITLD
• Assessee Lawyers: S K MODI; S K LALA S LD ARS
• Keywords: Principle of natural justice
• Section: 68

Judgement Text

INCOME TAX APPELLATE TRIBUNAL, CIRCUIT BENCH, RANCHI BEFORE HON'BLE SHRI H.L. KARWA, PRESIDENT , AND HON'BLE SHRI B.R. BASKARAN, ACCOUNTANT M EMBER ITA NO . 79 /RAN/201 3 A.Y 2008 - 09 SMT. KIRAN SINHA VS. I.T.O WAR D 1(4), DHANBAD PAN: ALLPS 4364A ( APPELLANT ) ( RE SPONDENT ) FOR THE APPELLANT : S/ SH RI S.K. MODI & S.K LALA, ADVOCATES, LD.ARS FOR THE RESPONDENT : SHRI RAKESH KR. DAS, JCIT/LD.DR DATE OF HEARING : 2 7 - 11 - 2014 DATE OF PRONOUNCEMENT: 2 7 - 11 - 201 4 ORDER SHRI B.R. BASKARAN, ACCOUNTANT MEMBER : THIS APPEAL F ILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 14 - 05 - 2013 PASSED BY LD. CIT(A) , DHANABAD (JHARKHAND) AND IT RELATES TO THE ASSESSMENT YEAR 2008 - 09. 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 5 LAKHS MADE BY THE ASSESSING OFFICER U/S. 68 OF THE ACT. 3. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSING OFFICER EXAMINED THE CASH CR EDIT OF RS. 5.75 LAKHS RECEIVED FROM FIVE PERSONS. THE ASSESSING OFFICER ASSESSED THE LOAN AMOUNT OF RS. 5.75 LAKHS U/S. 68 OF THE ACT . THE LD.CIT(A) GRANTED RELIEF TO THE EXTENT OF RS. 75,000/ - AND CONFIRMED THE ASSESSMENT ON REMAINING AMOUNT OF RS. 5 LAKHS . HE NOTICED THAT THE ASSESSEE RECEIVED AMOUNT OF RS. 5 LAKHS FROM TWO PERSONS, NAMELY, SHRI RISHIPAL AGARWAL AND SMT. KAMLESH DEVI AT RS.2.50 LAKH EACH. 4. WE NOTICE THAT THE ASSESSING OFFICER ISSUED SUMMONS TO THE SAID CREDITORS AND RECORDED THE STATEMENTS MADE FROM THEM . SMT. KAMLESH DEVI CONFIRMED 2 ITA NO . 79 /RAN/13 SMT. KIRAN SINHA THAT SHE RECEIVED A SUM OF RS. 2.50 LAKHS FROM THE ASSESSEE AND THEN ISSUED A CHEQUE FOR RS. 2.50 LAKHS SIMILARLY, SHRI RISHIPAL AGARWAL STATED THAT HE HAD ISSUED A CHEQUE FOR RS. 2.50 LAKHS TO T HE ASSESSEE AFTER TAKING CASH OF RS. 2.50 LAKHS FROM HER . HOWEVER, HE ALSO SUBMITTED THAT HE HAD RECEIVED MONEY FROM SHRI SURESH CHANDRA SANTOSH KUMAR IN CHEQUE AND THE SAME WAS DIVERTED TO THE ASSESSEE. THUS, IT IS NOTICED THAT SHRI RISHIPAL AGARWAL HAD GIVEN CONTRADICTORY REPLIES. IT SEEMS THAT THE ASSESSING OFFICER DID NOT CONSIDER THE CONTRADICTORY REPLY GIVEN BY SHRI RISHIPAL AGARWAL 5. AT THE TIME OF HEARING THE LD.AR SUBMITTED THAT THE ASSESSING OFFICER HAS TAKEN THE STATEMENT FROM THE ABOVE S AID TWO CREDITORS BEHIND THE BACK OF THE ASSESSEE AND DID NOT AFFORD AN OPPORTUNITY TO CROSS EXAMINE THEM. ACCORDINGLY, HE SUBMITTED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ASSESSMENT OF RS. 5 LAKHS. 6. ON THE CONTRARY, THE LD.DR STRONGLY PLACED HIS RELIANCE ON THE ORDER PASSED BY THE LD.CIT(A) ON THIS ISSUE . 7. IT IS UNDISPUTED FACT THAT THE STATEMENTS TAKEN FROM THE ABOVE SAID TWO PARTIES WERE MADE BEHIND THE BACK OF THE ASSESSEE. THE ASSESSING OFFICER WAS NOT ALLOWED TO CROSS EXAMINE THEM. ACCORDING TO THE LD.AR , THE ASSESSEE HAS RECEIVED LOAN BY WAY OF ACCOUNT PAYEE CHEQUES AND THE CREDITORS HAVE GIVEN THEIR CONFIRMATIONS . IN OUR VIEW THE ASSESSING OFFICER SHOULD HAVE GIVEN AN OPPORTUNITY TO CROSS EXAMINE THEM. THE ACTION OF THE ASSESSING OFFICER I S IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE PROVIDED AN OPPORTUNITY FOR EXAMINING THE ABOVE SAID TWO PERSONS. ACCORDINGLY , WE SET ASIDE THE ORDER OF THE LD.CIT(A) ON THI S ISSUE AND RESTORE THE MATTER OF RS. 5 LAKHS TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE T HE ISSUE AFRESH AFTER ALLOWING AN OPPORTUNITY OF CROSS EXAMINING THE CREDITORS OF THE ASSESSEE AND ALSO BY DULY CONSIDERING SUBMISSION/EXPL ANATION THAT MAY BE PROVIDED BY HER AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 3 ITA NO . 79 /RAN/13 SMT. KIRAN SINHA 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED AC CORDINGLY ON 27 - 11 - 2014 SD/ - SD/ - [ H.L. KARWA ] [ B.R. BASKARAN ] PRESIDENT ACCOUNTANT MEMBER DT. 2 7 - 11 - 2014 PLACE : RANCHI PP, SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT : SMT. KIRAN SINHA C/O S.K LALA, ADVOCATE, LUBY CIRCULAR ROAD, BEHIND UCO BANK, DHANBAD 826001. 2 THE RESPONDENT: THE I.T.O W 1(4), DHANBAD 3. .THE CIT, 4.THE CIT(A), 5.DR, ITAT CIRCUIT BENCH, RANCHI 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT. REGISTRAR 4 ITA NO . 79 /RAN/13 SMT. KIRAN SINHA 1. DATE OF DICTATION ............. 2 7 - 11 - 2014 ....................... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ............ ............OTHER MEMBER ... 28 ... - 11 - 2014 ........................ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. ..................... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.................. ................ 2 7 - 11 - 2014 ................................................... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S ................ 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK ....................................... 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ......................................... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER .................................................................................... ............. 9. DATE OF DESPATCH OF THE ORDER ..............................................................