SHRI KIRODI MAL, ALWAR V. INCOME TAX OFFICER, ALWAR

ITA 883/JPR/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6266 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Keywords: Period of limitation; Source of fund; Reasonable cause; Time period of passing order; Condonation of delay; Reassessment proceedings
• Section: 131; 68; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA -@ ITA NO. 883/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 SHRI KIRODI MAL, R/O- VILLAGE- DALALPUR, POST- SHAHPUR, DISTT.- ALWAR (RAJASTHAN) C UKE VS. I.T.O. WARD-1(1), ALWAR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: BGLPM 4153 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKS J LS @ ASSESSEE BY: NONE (DATE NOTED) JKTLO DH VKSJ LS @ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 13/09/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 10/10/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11/09/2017 OF LD. CIT(A), ALWAR FOR THE A.Y. 2009-10. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THIS APPEAL WAS CALLED FOR HEARING REPEATEDLY UP TO THE TIME OF RISING THE BENCH DESPITE THE FACT THAT ON THE LAST DATE OF HEARING, THE REPRESENTATIVE OF THE ASSESSEE HAS DULY NOTED DOWN THE DATE OF HEARING. ACCORDINGLY, I PROPOSE TO HEAR AND DISPOSE OFF THIS APPEAL EX PARTE. ITA 883/JP/2017 SHRI KIRODI MAL VS ITO 2 3. THERE IS DELAY OF 18 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY ALONGWITH AN AFFIDAVIT OF THE ASSESSEE. 4. I HAVE HEARD THE LD. DR AND CAREFULLY PERUSED THE APPLICATION FOR CONDONATION OF DELAY AS WELL AS AFFIDAVIT FILED BY THE ASSESSEE. THE ASSESSEE HAS EXPLAINED THE DELAY OF 18 DAYS THAT THERE WAS MISCOMMUNICATION BETWEEN HIM AND HIS CHARTERED ACCOUNTANT WHICH HAS RESULTED TO THE DELAY IN TAKING STEPS FOR FILING THE PRESENT APPEAL, THEREFORE, THERE WAS A DELAY OF 18 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS ALSO EXPLAINED THAT HE IS AN AGRICULTURIST AND IS NOT AWARE ABOUT THE PROVISIONS OF INCOME TAX AS WELL AS PROCEDURE OF FILING THE APPEAL, THEREFORE, HE WAS DEPENDENT ON THE CHARTERED ACCOUNTANT. SINCE, THERE WAS A MISCOMMUNICATION BETWEEN HIM AND THE CHARTERED ACCOUNTANT, THEREFORE, THE STEPS COULD NOT BE TAKEN IN TIME FOR FILING THE PRESENT APPEAL. 5. THE LD DR, THOUGH, OBJECTED TO THE CONDONATION OF DELAY, HOWEVER, HAS NOT DISPUTED THE FACTS EXPLAINED IN THE AFFIDAVIT BY THE ASSESSEE. 6. HAVING CONSIDERED THE CAUSE OF DELAY EXPLAINED BY THE ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY AS WELL AS AFFIDAVIT, I AM ITA 883/JP/2017 SHRI KIRODI MAL VS ITO 3 SATISFIED THAT THE ASSESSEE WAS HAVING A REASONABLE CAUSE FOR NOT FILING THE APPEAL IN TIME AND ACCORDINGLY, THE DELAY OF 18 DAYS IN FILING THE APPEAL IS CONDONED. 7. IN THIS APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. LD. AO HAS GROSSLY ERRED IN PASSING THE IMPUGNED RE-ASSESSMENT ORDER U/S 147/144 OF THE INCOME TAX ACT, 1961 INASMUCH AS THE NOTICE U/S 148 WAS ISSUED BEYOND THE TIME LIMIT PRESCRIBED U/S 149 OF THE ACT. THEREFORE, THE IMPUGNED REASSESSMENT ORDER AS WELL AS THE ORDER OF LD. CIT(A) CONFIRMING THE SAME DESERVE TO BE HELD BAD IN LAW AND BE QUASHED. 1.1 THAT, THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ACTION OF LD. AO IN ISSUING NOTICE U/S 148 BEYOND THE PRESCRIBED TIME LIMIT AND COMPLETING THE REASSESSMENT ON THE BASIS OF SUCH ILLEGAL NOTICE, THUS RENDERING THE ENTIRE REASSESSMENT PROCEEDINGS INVALID. HOWEVER, THIS GROUND OF APPEAL ALONGWITH SUPPORTING CONTENTIONS RAISED BY ASSESSEE WAS COMPLETELY BRUSHED ASIDE BY THE LD. CIT(A). THUS, THE ORDER OF LD. AO AS WELL AS LD. CIT(A) DESERVE TO BE QUASHED. 1.2 THAT, THE LD. CIT(A) HAS GROSSLY ERRED IN MECHANICALLY CONFIRMING THE IMPUGNED REASSESSMENT ORDER OF LD. AO, BY IGNORING THE FACT THAT THE REASSESSMENT HAD BEEN DONE WITHOUT TAKING REQUISITE STATUTORY SANCTION U/S 151 OF THE INCOME TAX ACT, 1961. THE LD. C1T(A) HAS IGNORED THIS GROUND AND CONTENTION OF ASSESSEE. THUS, THE ORDERS OF LD. AO AS WELL AS LD. CIT(A) DESERVE TO BE HELD BAD IN LAW AND BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 10,76,000/- OUT OF THE ADDITION OF RS. 37,00,000/- MADE BY THE LD. AO U/S 68 OF THE INCOME TAX ACT, 1961 BY HOLDING THE CASH DEPOSITS IN THE BANK ACCOUNT OF ASSESSEE AS UNEXPLAINED, BY COMPLETELY IGNORING THE FACT THAT THE SOURCE OF THE DEPOSITS WAS DULY ITA 883/JP/2017 SHRI KIRODI MAL VS ITO 4 EXPLAINED BY THE ASSESSEE TO HAVE BEEN MADE OUT OF THE AGRICULTURAL LAND SOLD BY THE MOTHER OF ASSESSEE, WHICH FACT WAS DULY SUPPORTED BY COMPLETE EVIDENCES. THUS, THE ADDITION OF RS. 10,76,000/- SUSTAINED BY THE LD. CIT(A) DESERVES TO BE DELETED. 2.1 THAT, THE LD. CIT(A) HAS FURTHER ERRED IN SUSTAINING THE IMPUGNED ADDITION OF RS. 10,76,000/- BY COMPLETELY IGNORING THE EVIDENCES IN THE SHAPE OF AFFIDAVIT OF ASSESSEE'S MOTHER, AGREEMENT TO SALE, SALE DEED, STATEMENTS OF PURCHASERS RECORDED U/S 131 OF THE ACT, WHEREIN THEY HAVE ADMITTED TO HAVE PURCHASED AGRICULTURAL LAND FROM ASSESSEE'S MOTHER AND ADMITTED TO HAVE PAID TOTAL CONSIDERATION OF RS. 48.00 LACS TO THE ASSESSEE'S MOTHER. THUS, THE ADDITION OF RS.10,76,000/- SUSTAINED BY THE LD. CIT(A) DESERVES TO BE DELETED. 2.2 THAT, THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE ADDITION OF RS. 10,76,000/- SOLELY ON THE GROUND THAT THE PERSONS WHO HAVE PURCHASED THE LAND FROM ASSESSEE COULD PROVE THE SOURCE OF FUNDS IN THEIR HANDS ONLY TO THE EXTENT OF RS. 26.24 LACS, WHICH IS COMPLETELY IN VIOLATION OF THE SETTLED LAW THAT THE ASSESSEE IS NOT REQUIRED TO PROVE SOURCE OF SOURCE. THUS, THE ADDITION OF RS. 10,76,000/- SUSTAINED BY THE LD. CIT(A) DESERVES TO BE DELETED. 3. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL. 8. GROUND NO. 1 TO 1.2 OF THE APPEAL IS REGARDING VALIDITY OF NOTICE ISSUED U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) BEING BARRED BY LIMITATION PRESCRIBED U/S 149 OF THE ACT. 9. I HAVE HEARD THE LD. DR AND CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE HAS CHALLENGED THE VALIDITY OF THE NOTICE U/S 148 OF THE ACT BEFORE THE LD. CIT(A) ON THE GROUND THAT THE NOTICE ITA 883/JP/2017 SHRI KIRODI MAL VS ITO 5 ISSUED U/S 148 ON 28/03/2016 WAS SERVED ON HIM ON 01/04/2016 AND THEREFORE, THE SAID NOTICE WAS SERVED AFTER THE LIMITATION PRESCRIBED U/S 149 OF THE ACT. THE ASSESSEE HAS CONTENDED THAT THE NOTICE ISSUED U/S 148 WAS NOT VALID AS IT WAS NOT ISSUED AND SERVED WITHIN THE PRESCRIBED PERIOD I.E. 31/03/2016. THE LD DR HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ONCE THE NOTICE WAS ISSUED AND SENT BEFORE EXPIRY OF THE LIMITATION PERIOD THEN THE RECEIPT OF THE SAME ON 01/04/2016 BY THE ASSESSEE WOULD NOT RENDER THE SAID NOTICE AS INVALID BEING BARRED BY LIMITATION. 10. I HAVE CONSIDERED THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST THE NOTICE ISSUED U/S 148 OF THE ACT AS WELL AS THE RELEVANT UNDISPUTED FACTS. THE ONLY OBJECTION OF THE ASSESSEE REGARDING THE LIMITATION OF THE NOTICE ISSUED U/S 148 OF THE ACT IS THAT THE IT WAS SERVED UPON HIM ON 01/04/2016. THE ASSESSEE HAS NOT DISPUTED THE NOTICE ISSUED ON 28/03/2016 BY THE A.O., HOWEVER, ONLY BECAUSE IT WAS SERVED ON THE ASSESSEE ON 01/04/2016, THE ASSESSEE HAS CHALLENGED THE VALIDITY. ONCE THE NOTICE WAS ISSUED ON 28/03/2016 AND IT WAS OUT OF THE HAND OF THE A.O. BEFORE EXPIRY OF LIMITATION THEN SERVICE OF THE NOTICE ON 01/04/2016 WOULD NOT AFFECT THE VALIDITY OF THE NOTICE BEING BARRED BY LIMITATION. SINCE THE NOTICE WAS ISSUED WELL IN TIME AND THERE WAS A REASONABLE ITA 883/JP/2017 SHRI KIRODI MAL VS ITO 6 TIME PERIOD TO REACH TO THE ASSESSEE, THEREFORE, EVEN IF THERE IS A DELAY OF ONE DAY WHICH IS NOT IN THE CONTROL OF THE A.O. AS THE SERVICE AFFECTED ON 01/04/2016 DUE TO THE REASONS FOR WHICH THE ASSESSEE MAY BE RESPONSIBLE. HENCE, ONCE NOTICE WAS ISSUED WELL IN TIME AND IT WAS OUT OF THE CONTROL OF THE A.O. THEN THE SERVICE OF THE SAME ON 01/04/2016 ON THE ASSESSEE WILL NOT DETERMINE THE LIMITATION AS PRESCRIBED U/S 149 OF THE ACT BUT THE NOTICE SHOULD BE VALIDLY ISSUED WITHIN THE PERIOD OF LIMITATION WHICH WAS ISSUED IN THIS CASE. ACCORDINGLY, I DO NOT FIND ANY SUBSTANCE OR MERIT IN THIS GROUND NO. 1 TO 1.2 OF THE ASSESSEES APPEAL, THE SAME IS REJECTED. 11. GROUND NO. 1 TO 2.2 OF THE APPEAL IS REGARDING CONFIRMATION OF ADDITION OF RS. 10,76,000/- OUT OF THE TOTAL ADDITION MADE BY THE A.O. OF RS. 37.00 LACS MADE U/S 68 OF THE ACT. 12. I HAVE HEARD THE LD. DR AND CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE A.O. MADE THE ADDITION OF RS. 37.00 LACS ON ACCOUNT OF CASH DEPOSITED IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE. ON APPEAL, THE ASSESSEE SUBMITTED THAT THE AMOUNT REPRESENTS AS MONEY BELONGS TO HIS MOTHER WHO DID NOT HAVE BANK ACCOUNT. FURTHER, IT WAS EXPLAINED THAT THERE WAS SALE OF AGRICULTURAL LAND BY THE MOTHER OF THE ASSESSEE ON 30/07/2008 VIDE AGREEMENT TO SELL AND THERE WAS A ITA 883/JP/2017 SHRI KIRODI MAL VS ITO 7 SUBSEQUENT SALE DEED ON 14/11/2008. THE LD. CIT(A) AFTER CONSIDERING THESE SUBMISSIONS AND FACTS AS EXPLAINED BY THE ASSESSEE, ASKED THE A.O. TO VERIFY THESE EVIDENCES AND SUBMIT A REMAND REPORT. THE A.O., ACCORDINGLY, SUBMITTED A REMAND REPORT. AFTER CONSIDERING THE REMAND REPORT, WHEREIN THE A.O. CONDUCTED AN ENQUIRY FROM THE PURCHASER WHO WAS ABLE TO PRODUCE THE EVIDENCE AND EXPLANATION FOR PAYMENT OF RS. 26,24,000/- ONLY, THE LD. CIT(A) HAS DELETED THE ADDITION TO THE EXTENT OF RS. 26,24,000/- AND CONFIRMED THE BALANCE ADDITION OF RS. 10,76,000/-. IT IS PERTINENT TO NOTE THAT AS PER THE SALE DEED, THE SALE CONSIDERATION OF THE AGRICULTURAL LAND SOLD BY THE MOTHER OF THE ASSESSEE VIDE SALE DEED DATED 14/11/2008 IS ONLY RS. 10,62,500/-, THEREFORE, ONUS IS ON THE ASSESSEE TO EXPLAIN THE CLAIM OF RS. 48.00 LACS AS SALE CONSIDERATION OF THE SAID AGRICULTURAL LAND. THOUGH, THE ASSESSEE HAS TRIED TO EXPLAIN THE SAID AMOUNT THROUGH AN AGREEMENT DATED 30/07/2008. HOWEVER, NO REFERENCE IS MADE IN THE SALE DEED OF THE SAID AGREEMENT DATED 30/07/2008, THEREFORE, EXCEPT THE SAID AGREEMENT, WHICH APPEARS TO BE AN AFTERTHOUGHT SELF-SERVING DOCUMENT, THE ASSESSEE HAS FAILED EVEN TO PROVE THE CREDITWORTHINESS OF THE PURCHASE TO PAY RS. 48.00 LACS AGAINST THE SALE OF AGRICULTURAL LAND BY THE MOTHER OF THE ASSESSEE. IN THESE FACTS AND CIRCUMSTANCES, I DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ITA 883/JP/2017 SHRI KIRODI MAL VS ITO 8 IMPUGNED ORDER OF THE LD. CIT(A). HENCE, GROUND NO. 2 TO 2.2. OF THE ASSESSEES APPEAL IS REJECTED. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2019 SD/- FOT; IKY JKO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10 TH OCTOBER, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI KIRODI MAL, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O. WARD-1(1), ALWAR 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 883/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR