Bajirao Dattatray Chandare, Pune V. Deputy Commissioner of Income tax, Pune

ITA 865/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1004 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 10-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VODAL RAJ SINGH
• Keywords: Business income; Capital Gains
• Section: 143(3); 142(1); 143(2)

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.865/PUN/2017 / ASSESSMENT YEAR : 2012-13 BAJIRAO DATTATRAY CHANDARE, S.NO.445/1, VEER BHADRA NAGAR, BAMER, PUNE. PAN:AEHPC5378Q. . / APPELLANT V/S THE DY.COMMISSIONER OF INCOME TAX, CIRCLE 2, PUNE. . / RESPONDENT ASSESSEE BY : NONE. REVENUE BY : SHRI VODAL RAJ SINGH. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 2, PUNE DATED 26.12.2016 FOR THE ASSESSMENT YEAR 2012-13. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL AND STATED TO BE HAVING INCOM E FROM INTEREST ON SECURITIES, RENT, SHORT TERM CAPITAL GAINS ETC., ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2012-13 ON 08.05 .2013 DECLARING TOTAL INCOME OF RS.30,45,569/-. THE CASE WAS SELE CTED / DATE OF HEARING : 01.08.2019 / DATE OF PRONOUNCEMENT: 06.09.2019 2 FOR SCRUTINY AND THEREAFTER, ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.25.03.2015 AND THE TOTAL INCOME W AS DETERMINED AT RS.1,48,40,702/-. AGGRIEVED BY THE ORDER O F AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORD ER DT.26.12.2016 (IN APPEAL NO.PN/CIT(A)-2/DCIT CIR- 2/PN/577/2015-16) DISMISSED THE APPEAL OF ASSESSEE. AGGR IEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US HAS AND RAISED VARIOUS GROUNDS. 3. THE GROUNDS RAISED ARE DESCRIPTIVE IN NATURE AND HEN CE, THE SAME ARE NOT REPRODUCED BUT THE SOLITARY ISSUE WHICH NE EDS TO BE ADJUDICATED IS WITH RESPECT TO THE ADDITION MADE ON ACCO UNT OF FIXED DEPOSITS IN THE BANK ACCOUNT OF ASSESSEE. 4. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED. WE T HEREFORE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSE SSEE BASED ON THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD.D.R. 5. AO ON THE BASIS OF ITS INFORMATION, NOTICED THAT ASSESS EE HAD MADE CASH DEPOSITS AGGREGATING TO RS.18,81,000/- IN BANK OF INDIA AND ASSESSEE HAD ALSO MADE TIME DEPOSITS AGGREGAT ING TO RS. RS.99,14,133/-, THE DETAILS OF WHICH ARE GIVEN UNDER PARA 7 I N PAGE 3 OF THE ASSESSMENT ORDER. AO NOTICED THAT DESPITE SER VICE OF NOTICE U/S 142(1) AND 143(2) OF THE ACT, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY DETAILS WERE FILED. HE HAS ALSO NOTE D THAT ASSESSEE DID NOT FILE ANY COPY OF PROFIT AND LOSS ACCOUNT, BALANCE- SHEET, DETAILS OF BUSINESS INCOME / SHORT TERM CAPITAL GAINS, DETAILS 3 OF INVESTMENTS IN FDR. HE FURTHER NOTED THAT THE LD.A.R . OF THE ASSESSEE HAS STATED THAT ASSESSEE DID NOT MAINTAIN AN Y BOOKS OF ACCOUNTS NOR COULD EXPLAIN THE SOURCES OF CASH DEPOSITS IN THE BANK ACCOUNT DURING THE YEAR UNDER CONSIDERATION. AS TH E ASSESSEE FAILED TO PROVE THE SOURCES OF INVESTMENTS FOR FIXED DEPOS ITS, AO TREATED THE SAME AS UNEXPLAINED AND ACCORDINGLY MAD E AGGREGATE ADDITION OF RS.11,79,95,133/- TO THE TOTAL INCOME OF THE AS SESSEE. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A), WHO UPHELD THE ORDER OF AO. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. 6. BEFORE US IN THE GROUNDS OF APPEAL ASSESSEE HAS INTER- ALIA SUBMITTED THAT HE HAS ACCEPTED THE ADDITION OF CASH DEP OSITS OF RS.18,81,000/-. WITH RESPECT TO THE ADDITION ON ACCOUNT OF FIXED DEPOSITS, IT IS THE SUBMISSION OF ASSESSEE THAT FDR OF RS.20 LAKHS WAS MADE ON 12.01.2011 OUT OF THE PROCEEDS OF LAND SALE AND THE SAID FDR WAS ENCASHED ON 20.07.2011 AND OUT OF WHICH, TWO FDRS WERE MADE. ONE FOR RS.3,25,000/- ON 09.08.20111 AND THE O THER FOR RS.5 LAKHS ON 22.08.2011 AND THAT BOTH THE FDRS WERE AGAIN ENCASHED ON 21.09.2011. SIMILARLY, WITH RESPECT TO OTHER FDRS, HE SUBMITTED THAT IT IS OUT OF SALE PROCEEDS OF THE LAND IN THE YEAR 2017 AND SINCE THE AMOUNT OF FDR WAS FOR MORE THAN T HREE YEARS NO CAPITAL GAINS WAS LEVIABLE. IT IS ASSESSEES SUBMISSION T HAT THE ASSESSEE COULD NOT FURNISH NECESSARY EXPLANATION AND IF HE WAS GIVEN A CHANCE HE WOULD EXPLAIN HIS CASE BEFORE LOWER AUTH ORITIES. 4 LD.D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF AO AND LD.CIT(A). 7. WE HAVE HEARD THE LD.D.R. AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUND IS WITH RESPECT TO ADDITIONS MADE ON ACCOUNT OF CASH DEPOSITS AND UNEXPLAIN ED FDRS IN THE BANK ACCOUNT OF THE ASSESSEE. THE PERUSAL OF T HE ASSESSMENT ORDER REVEALS THAT NO DETAILS WERE FILED BY TH E ASSESSEE BEFORE AO AND THEREFORE HE CONSIDERED THE ENTIRE CASH DEPOSITS AND FDRS AS UNEXPLAINED AND MADE ITS ADDITION. THE ORDER OF THE AO WAS UPHELD BY LD.CIT(A). BEFORE US IN THE GROUNDS OF APP EAL ASSESSEE HAS INTER-ALIA SUBMITTED THAT THE FDRS WERE MA DE OUT OF ENCASHMENT OF FDRS MADE IN EARLIER YEARS. THE CAPITAL GAIN S APPLICABLE WAS PAID IN EARLIER YEARS AND THUS THE INVESTMEN TS ARE FULLY EXPLAINED. HOWEVER, CONSIDERING THE FACT THAT THE AFOR ESAID EXPLANATION WAS NOT FURNISHED BY THE ASSESSEE BEFORE ANY LOWER AUTHORITIES AND IN VIEW OF THE WELL SETTLED PRINCIPLE OF NATURA L JUSTICE THAT SUFFICIENT OPPORTUNITY OF HEARING SHOULD BE AFFOR DED TO THE PARTIES AND NO PARTY SHOULD BE CONDEMNED UNHEARD, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO PRESENT HIS CASE. WE THEREFORE RESTORE THE MATTER BAC K TO THE FILE OF LD.CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD.CIT(A) SHALL GRANT ADEQUATE OPP ORTUNITY OF HEARING TO BOTH THE PARTIES. ASSESSEE IS ALSO DIRECTED T O PROMPTLY FURNISH ALL THE DETAILS CALLED FOR BY THE LOWER AUTHORITIES. I N CASE THE ASSESSEE FAILS TO FURNISH THE NECESSARY EVIDENCES IN S UPPORT OF HIS CLAIM TO THE SATISFACTION OF THE AUTHORITIES, THE AUTHOR ITIES ARE FREE TO MAKE THE ADDITIONS AS DEEMED FIT IN THE CIRCUMSTA NCES OF 5 THE CASE. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO LD.CIT(A ), WE ARE NOT ADJUDICATING ON MERITS THE GROUNDS OF THE AP PEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 6 TH DAY OF SEPTEMBER, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 6 TH SEPTEMBER, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-6, PUNE. PR. CIT-5, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.