SHRI VISHAL KUMAR JAIN, Ujjain V. THE ITO WARD 2(1), Ujjain

ITA 888/IND/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2306 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV JAIN
• Keywords: Business income; Reasonable cause; Condonation of delay
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 888 /IND/2016 ASSESSMENT YEAR: 2008 - 09 SHRI VISHAL KUMAR JAIN HARIHAR NAGAR, UJJAIN. / VS. ITO, WARD 2(1), UJJAIN (APPELLANT) (RESPONDENT ) P.A. NO.A IDPJ0855F APPELLANT BY NONE RESPONDENT BY SHRI RAJEEV JAIN, SR. DR DATE OF HEARING: 27 .0 2 .2018 DATE OF PRONOUNCEMENT : 28 .0 2 .2018 / O R D E R PER KUL BHARAT , J.M: APPEAL BY THE ASSESSEE PERTAINING TO THE ASSESSMENT YEAR 2008 - 09 IS DIRECTED AGAINST THE ORDER OF CIT(A), UJJAIN, DATED SHRI VISHAL KUMAR JAIN, UJJAIN - : 2 : - 25.11.2014. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING AN ADDITION OF RS. 1,90,839/ - ON ACCOUNT OF DEEMED INTEREST ON DEEMED MONEY LENDING TRANSACTIONS (WITHOUT ANY BASIS) AS : (A) NO MANDATORY NOTICE FOR ENHANCEMENT AS PER SE CTION 251(2) HAS BEEN GIVEN. (B) AS PER JUDICIAL DECISIONS, THE LD. CIT(A) CANNOT MAKE ENHANCEMENT FOR A NEW SOURCE OF INCOME (I.E., THE SOURCE OF INCOME WHICH IS NOT IN THE RETURN OR IN THE ASSESSMENT ORDER). BUT IN THIS CASE, THE LD. CIT(A) HAS MADE ENHANCEMENT FOR NON - EXISTENT DEEMED MONEY LENDING BUSINESS WHICH HAS NEITHER BEEN DECLARED BY THE APPELLANT NOR HAS BEEN FOUND BY THE LD. AO. (C) THE FACT MENTIONED BY THE LD. CIT(A) THAT THE APPELLANT HAS SHOWN INTEREST INCOME IN RETURN (FROM MONEY LENDING) IS WRONG. IT WAS MERELY PETTY BANK INTEREST AMOUNT; (D) THE DEEMED INTEREST IS COMPUTED @12 % FOR WHOLE YEAR ON THE ENTIRE AMOUNT OF RS. 15,90,330. HOWEVER, SUCH AMOUNT NEVER REMAINED IN EXISTENCE AT ANY TIME. IT WAS ONLY A SUM TOTAL OF PETTY CASH DEPOSITS MADE IN BANK THROUGHOUT THE YEAR OUT OF THE CASH WITHDRAWAL FROM THE SAME BANK ACCOUNT AND WAS OF ROTATING NATURE. THEREFORE, APPLICATI ON OF 12 % INTEREST AMOUNT ON WHOLE OF SUCH NON EXISTENT AMOUNT FOR THE WHOLE YEAR IS WRONG; SHRI VISHAL KUMAR JAIN, UJJAIN - : 3 : - (E) ONLY THE CASH AMOUNT WITHDRAWN FROM BANK COULD HAVE BEEN UTILIZED FOR MONEY LENDING THEREFORE, INTEREST CAN BE APPLIED ONLY ON AMOUNT WITHDRAWN AND THAT TOO ONLY FOR THE PERIOD TILL IT WAS RE - DEPOSITED IN BANK. ON THE BASIS OF DETAILED CASH FLOW CHART (RELIED BY LD. CIT(A) FOR GIVING RELIEF), THE DEEMED INTEREST IS ONLY RS. 6,751/ - . 2. THAT THE LD. CIT(A) ALSO ERRED IN NOT GIVING ANY FINDING REGARDING CURRENT YEARS INCOME OF RS. 1,08,650/ - AS ONE OF THE SOURCE OF CASH DEPOSIT MADE IN BANK ( IT INCLUDE CASH REMUNERATION RS. 72,000/ - AND CASH BUSINESS INCOME RS. 27,850/ - .) (ADDITION HAS BEEN MADE BY LD. AO FOR UNEXPLAINED CASH DEPOSIT IN BANK). 2. NO ONE APPEARED ON BEHALF OF THE ASSESSEE. ON 2 ND JANUARY, 2018, ALSO, NO ONE APPEARED. THE NOTICE WAS SENT THROUGH RPAD, WHICH HAS BEEN DULY RECEIVED, AS THE A.D. IS RETURNED. 3. THE LD. DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE APPEAL IS EVEN OTHERWISE BARRED BY ONE YEAR AND 191 DAYS. 4. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE. WE FIND THAT THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY IN THE APPLICATION, THE ASSESSEE HAS STATED AS UNDER : - 0 1 . THE PRESENT APPEAL IS AGAINST ORDER OF LD. CIT(A) DATED 254.11.2014. 02. THAT THE ABOVE ORDER OF LD. CIT(A) WAS SERVED ON THE APPELLANT ON 19.12.2014. SHRI VISHAL KUMAR JAIN, UJJAIN - : 4 : - 03. THAT THE PRESENT APPEAL IS BEING SUBMITTED LATE BY ABOVE 18 MONTHS . HOWEVER, THE HON'BLE I.T.A.T. HAS GIVEN PERMISSION TO THE APPELLANT TO FI LE BELATED APPEAL VIDE ORDER DATED 29.02.2016 ( PAGE 4 OF ORDER) IN APPEAL NO. ITA NO. 565/IND/2015.). PHOTOCOPY OF THE SAME IS ATTACHED WITH THE APPEAL MEMO IN FORM NO. 36. 04. THAT EARLIER INSTEAD OF FILING AP PEAL AGAINST ORDER OF LD. CIT(A) U/S 250, THE APPELLANT FILED AN APPLICATION U/S 154 TO THE LD. CIT(A) AND ON REJECTION OF THAT APPLICATION, FILED APPEAL BEFORE THE HON'BLE I.T.A.T. AGAINST ORDE4R U/S 154/250.). THE HON'BLE I.T.A.T. HAS DISMISSED THE APPEA L AGAINST ORDER U/S 154/250 BUT HAS PERMITTED THE APPELLANT TO FILE BELATED APPEAL AGAINST ORIGINAL ORDER OF THE LD. CIT(A) PASSED U/S 250 ON 25.11.2014. 05. THAT AFTER THE ORDER OF THE HON'BLE I.T.A.T. SOME TIME HAS ELAPSED AS THE APPELLANT WAS NOT IN THE CITY OF UJJAIN FROM LAST FEW MONTHS AND AS SUCH HE COULD NOT CONTACT HIS COUNSEL FOR FURTHER PROCEEDINGS. 06. THAT IN VIEW OF THE ABOVE FACTS, CIRCUMSTANCES AND REASONABLE AND SUFFICIENT CAUSES, IT IS REQUESTED THAT THE ABOVE DELAY IN FILING OF APPEAL MAY PLEASE BE CONDONED AND OBLIGE. AN AFFIDAVIT IN SUPPORT OF THIS APPLICATION IS ALSO FILED . WE HAVE PERUSED THE APPLICATION AND AFFIDAVIT IN SUPPORT. WE DO NOT FIND ANY REASONABLE CAUSE FOR FILING APPEAL LATE BY THE ASSESSEE. THEREFORE , THE SAME IS DISMISSED BEING BARRED BY TIME. SHRI VISHAL KUMAR JAIN, UJJAIN - : 5 : - 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28 .0 2 .2018. SD/ - (MANISH BORAD) SD/ - (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 28 /0 2 /2018 CPU / SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUARD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE