ITO, Kishangarh V. SHRI PRATAP CHOUDHARY, Kishangarh

ITA 909/JPR/2011

• Counselvise Citation: 90923114 RSA 2011
• Duration Of Justice: 3 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 28-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH
• Keywords: Business income; Additional evidence

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 909/JP/2011 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 THE I.T.O. KISANGARH. CUKE VS. SHRI PRATAP CHOUDHARY, 1, BANGRO KI DHANI, SARANA, MADANGANJ, KISANGARH. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AHQPC 1996 G VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : MRS. NEENA JEPH (JCIT). FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : NONE(DEPARTMENTAL A.D. ON RECORD) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 05/01/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 09/01/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST T HE ORDER DATED 18/08/2011 PASSED BY THE LEARNED CIT(A), AJMER FOR A.Y. 2008-09. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) AJMER HAS ERRED IN:-:- ITA 909/JP/2011_ ITO VS PRATAP CHOUDHARY 2 1) DELETING THE ADDITION OF RS. 27,88,000/- ON ACCO UNT OF UNEXPLAINED DEPOSITS IN IDBI SAVING BANK ACCOUNT MADE BY A.O. U/S 69A OF THE I.T. ACT, 1961, WHEN THE ASSESSEE IN SPITE OF SUFFICIENT OPPORTUNITIES OFFERED BY THE A.O. FAILING TO EXPLAIN THE SOURCE O F DEPOSIT; 2) DELETING THE ADDITION OF RS. 27,88,000/- ON ACCO UNT OF CASH DEPOSITS ON THE BASIS OF FRESH EVIDENCES PRODUCED BEFORE HIM UNDER RULE 46A, WHICH AS PER PROVISIONS OF RULE 46A(1)(B) WERE NOT ADMITABLE BY THE CIT(A); 3) DELETING THE ADDITION OF RS. 2,42,061/- UNDER TH E HEAD FUEL EXPENSES WITHOUT APPRECIATING THE FACTS THAT THE VOUCHERS FOR EXPENSES ARE SELF MADE; 4) RESTRICTING THE ADDITION TO RS. 8,000/- UNDER TH E HEAD OF PHONE AND MOBILE EXPENSES WITHOUT APPRECIATING THE FACTS THAT THE VOUCHERS FOR EXPENS ES ARE SELF MADE; 5) RESTRICTING THE ADDITION TO RS. 25,000/- UNDER T HE HEAD OF REPAIR & MAINTENANCE EXPENSES WITHOUT APPRECIATING THE FACTS THAT THE VOUCHERS FOR EXPENS ES ARE SELF MADE; 6) DELETING THE ADDITION OF RS. 8,375/- UNDER THE H EAD OFFICE EXPENSES WITHOUT APPRECIATING THE FACTS THAT THE VOUCHERS FOR EXPENSES ARE SELF MADE; 7) DELETING THE ADDITION OF RS. 62,820/- ON ACCOUNT OF SALARY EXPENSES WITHOUT APPRECIATING THE FACTS OF TH E CASE THAT VOUCHERS FOR EXPENSES ARE SELF MADE; 8) THE APPELLANT CRAVES TO ADD, AMEND, ALTER, DELETE OR MODIFY THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. THE ASSESSEE IS A TRANSPORTER. HE FILED HIS RETUR N OF INCOME ON 06/2/2009 FOR A.Y. 2008-09 DECLARING TOTAL INCOME O F RS. 1,95,250/-. ITA 909/JP/2011_ ITO VS PRATAP CHOUDHARY 3 THE CASE WAS SCRUTINIZED U/S 143(3)/144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). THE ASSESSING OF FICER ISSUED VARIOUS LETTERS TO THE ASSESSEE, WHICH HAD NOT BEEN RESPONDE D. THE LAST NOTICE WAS SERVED BY THE LEARNED ASSESSING OFFICER PERSONAL LY UPON THE ASSESSEE AND HIS BROTHER. ON 20/11/2010, ADVOCATE O F THE ASSESSEE ATTENDED AND REQUESTED TO SOME MORE TIME TO REPLY T HE QUERY RAISED BY THE ASSESSING OFFICER. ON HIS REQUEST, THE CASE WAS ADJOURNED TO 14/12/2010. ON THAT DATE ALSO, HE HAD NOT ATTENDED THE PROCEEDINGS. ON 22/12/2010, THE ASSESSEE WAS CONTACTED ON TELEPHO NE AND REQUESTED TO ATTEND THE PROCEEDING ON 23/12/2010 BU T EVEN ON THAT DATE ALSO, NO BODY ATTENDED THE PROCEEDING. THE CASE WAS BARRED BY LIMITATION ON 31/12/2010, THEREFORE, THE LEARNED AS SESSING OFFICER DECIDED THE CASE ON THE BASIS OF MATERIAL AVAILABLE WITH HIM. HE ANALYSED THE ASSESSEES PROFIT AND LOSS ACCOUNT UND ER THE HEAD BUSINESS INCOME ON ACCOUNT OF JCB AND TRACTOR OPERATION, FUE L EXPENSES, PHONE AND MOBILE EXPENSES, REPAIR AND MAINTENANCE, OFFICE EXPENSES, SALARY, DRAWING, CASH DEPOSITS IN IDBI BANK ACCOUNT. AFTER D ISCUSSING EACH HEAD, THE LEARNED ASSESSING OFFICER MADE TOTAL ADDI TION OF RS. 32,17,297/- ITA 909/JP/2011_ ITO VS PRATAP CHOUDHARY 4 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT( A), WHO HAD ALLOWED THE APPEAL PARTLY BY OBSERVING THAT THE LEARNED AS SESSING OFFICER CONSIDERED THE ENTIRE SUM DEPOSITED IN THE IDBI BAN K ACCOUNT AT RS. 27,88,000/- AS UNEXPLAINED DEPOSIT U/S 69A OF THE A CT. THE ASSESSEE SUBMITTED REPLY BEFORE THE LEARNED CIT(A), WHICH WAS REMANDED BACK TO THE ASSESSING OFFICER AND THE LEARNED ASSESSING OFFICER HAD EXAMINED THE BOOKS OF ACCOUNT AND REPORTED THAT CAS H DEPOSITED IN IDBI BANK ACCOUNT IS OUT OF CASH BALANCE AVAILABLE IN CASH BOOK ON VARIOUS DATES. THEREFORE, HE DELETED THE ADDITION OF RS. 27,88,000/-. THE DISALLOWANCES MADE UNDER THE VARIOUS HEADS AND AF TER CONSIDERING THE REMAND REPORT FURNISHED BY THE ASSESSING OFFICE R, THE LEARNED CIT(A) CONFIRMED RS. 8,000/- OUT OF PHONE AND MOBIL E EXPENSES BEING ELEMENT OF PERSONAL USE AND RS. 25,000/- OUT OF REP AIR AND MAINTENANCE. THE ADDITION UNDER THE HEAD FUEL EXPENS ES AND SALARY EXPENSES FULLY DELETED BY THE LEARNED CIT(A) ON THE GROUND THAT THERE IS NO JUSTIFICATION FOR MAKING ADDITION. SIMILARLY, TH E ADDITION MADE UNDER THE HEAD OFFICE EXPENSES IS ALSO DELETED AS AN AD H OC ADDITION MADE BY THE ASSESSING OFFICER. ITA 909/JP/2011_ ITO VS PRATAP CHOUDHARY 5 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LEARNE D SR. D.R. ARGUED THAT NO OPPORTUNITY HAS BEEN ALLOWED BY THE L EARNED CIT(A) BEFORE ALLOWING THE APPEAL PARTLY IN FAVOUR OF THE A SSESSEE. THE FRESH EVIDENCE PRODUCED BY THE APPELLANT BEFORE THE CIT(A ) WERE NOT ALLOWABLE UNDER RULE 46A OF THE INCOME TAX RULES, 196 1 (IN SHORT THE RULES) AS THE ASSESSEE HAS PROVIDED SUFFICIENT OPPO RTUNITY BY THE ASSESSING OFFICER, THEREFORE, THERE WAS NO REASON TO ACCEPT THE ADDITION EVIDENCE IN ASSESSEES CASE. THE LEARNED CIT(A) HAD NOT RECORDED THE REASONS FOR ADMITTING THE ADDITION EVIDENCE TO DECI DE THE APPEAL. 5. NO ONE APPEARED ON BEHALF OF THE ASSESSEE DURING COURSE OF HEARING, THEREFORE, WE TOOK THE DECISION ON THE BASI S OF RELEVANT FACTS AVAILABLE ON THE RECORD. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF SR. D.R. AND PERUSED THE MATERIAL ON RECORD. IT IS EVIDENT FROM THE ORDER OF THE LEARNED CIT(A) THAT NO FINDINGS HAS BEEN GIVEN BEFORE ADMITTING TH E ADDITIONAL EVIDENCE WHETHER CASE IS COVERED UNDER RULE 46A OF T HE RULES OR NOT. HE SIMPLY TOOK THE REMAND REPORT FROM THE ASSESSING OFFICER, WHICH IS ALSO NOT CONSIDERED FULLY AS HE OBJECTED THE ADMISS ION OF ADDITIONAL EVIDENCE. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LEARNED CIT(A) IS SET ASIDE TO RECONSIDER ALL THE SUBMISSION S MADE BY THE ITA 909/JP/2011_ ITO VS PRATAP CHOUDHARY 6 LEARNED ASSESSING OFFICER IN HIS REMAND REPORT AND GIVE SPECIFIC FINDING ON RULE 46A OF THE RULES AND PASS ORDER AS PER LAW. 7. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED FO R STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 09/01/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 09 TH JANUARY, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, KISHANGARG 2. IZR;FKHZ @ THE RESPONDENT- SHRI PRATAP CHOUDHARY, KISANGARH. 3. VK;DJ VK;QDRVIHY @ THE CIT(A), AJMER. 4. VK;DJ VK;QDR @ CIT, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 909/JP/2011) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR