SHRI GOPI LAL BAIRWA, TONK V. INCOME TAX OFFICER, WARD, TONK

ITA 93/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9761 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 25-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROONIPAL
• Assessee Lawyers: S L PODDAR
• Keywords: Salary income; Set aside
• Section: 143(2)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 93/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 SHRI GOPI LAL BAIRWA 23,INDIRA COLONY, MALPURA, DISTRICT- TONK CUKE VS. THE ITO, WARD, TONK. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABPPB 3374 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L.PODDAR (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROONI PAL (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/06/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 30/06/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 15.01.2019 OF LD. CIT(A)-III, JAIPUR FOR THE ASSESS MENT ORDER 2010-11. DUE TO PREVAILING COVID-19 PANDEMIC CONDITION THE H EARING OF THE APPEAL IS CONCLUDED THROUGH VIDEO CONFERENCE. THE A SSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LEARNED CIT(A) HAS ERRED IN PASSING THE EX-PARTE ORDER WITH OUT GIVING ITA NO. 93/JP/2019 SHRI GOPI LAL BAIRWA VS. ITO 2 OPPORTUNITY TO THE ASSESSEE OF BEING HEARD WHICH IS VOID-AB-INITIO DESERVES TO BE QUASHED. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 19,00,000/- MADE BY THE LEARNED AO ON ACCOUNT OF ALLEGED CASH D EPOSITED IN THE BANK ACCOUNTS. 2. THE ASSESSEE IS AN INDIVIDUAL AND RETIRED GOVERN MENT TEACHER. THE ASSESSEE FILED HIS RETURN OF INCOME ON 31.05.20 10 DECLARING TOTAL INCOME OF RS. 3,04,534/- WHICH WAS PROCESSED U/S 14 3(1) OF THE ACT ON 20.01.2011 AND SUBSEQUENTLY THE CASE OF THE ASSESSE E WAS TAKEN FOR SCRUTINY AND NOTICE U/S 143(2) WAS ISSUED ON 19.06. 2012. DURING THE COURSE OF SCRUTINY ASSESSMENT, THE AO NOTED THAT TH E ASSESSEE HAS DEPOSITED CASH OF RS. 19,50,000/- IN THE BANK ACCOU NT OF THE ASSESSEE. THE AO ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE CASH DEPOSIT IN THE BANK. THE ASSESSEE CLAIMED THAT A SUM OF RS. 8, 00,000/- IS HIS SAVING FROM TUITION FEE AND ANOTHER RS. 8,00,000/- LOAN TAKEN FROM VARIOUS PERSONS AND THE REMAINING AMOUNT IS HIS AGR ICULTURE INCOME AS WELL AS SAVING FROM SALARY INCOME OF THE ASSESSEE. THE AO WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND MADE THE ADDITION OF RS. 19,00,000/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDISCLOSED INCOME FROM OTHER SOURCES. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT(A) HOWEVER, THE LD. CIT(A) ITA NO. 93/JP/2019 SHRI GOPI LAL BAIRWA VS. ITO 3 DISMISSED THE APPEAL OF THE ASSESSEE WHILE PASSING THE EX-PARTE IMPUGNED ORDER. 3. BEFORE THE TRIBUNAL THE LD. AR HAS REITERATED IT S CONTENTIONS AS RAISED BEFORE THE AO AND SUBMITTED THAT THE ASSESSE E HAS DULY EXPLAINED THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT AS THE ASSESSEE WAS HAVING TUITION INCOME FOR PAST SEVERAL YEARS, T HEREFORE, A SUM OF RS. 8,00,000/- DEPOSITED IN THE BANK ACCOUNT FROM T HE TUITION INCOME OF THE ASSESSEE. THE SOURCE OF BALANCE AMOUNT IS LEASE RENTAL RECEIVED BY THE ASSESSEE FOR AGRICULTURAL LAND GIVEN ON LEASE A ND VARIOUS WITHDRAWALS FROM GPF LOAN, STATE INSURANCE, ARREARS OF SALARY ETC. AS WELL AS DAIRY INCOME OF RS. 3,00,000/-. THE LD. AR HAS REFERRED TO THE AFFIDAVIT OF THE ASSESSEE DATED 02.10.2018 IN SUPPO RT OF EXPLANATION OF SOURCE OF DEPOSIT. HE HAS ALSO REFERRED TO THE REVE NUE RECORD TO SHOW THE AGRICULTURAL LAND HOLDING OF THE ASSESSEE AND H IS FAMILY MEMBERS. THUS THE LD. AR HAS SUBMITTED THAT WHEN THE ASSESSE E HAS PRODUCED ALL THE DOCUMENTARY EVIDENCE BEFORE THE AO TO EXPLAIN T HE SOURCE OF DEPOSIT THE ADDITION MADE BY THE AO IS NOT SATISFIE D AND THE SAME MAY BE DELETED. 4. ON THE OTHER HAND, THE LD. DR HAS OBJECTED TO TH E CONTENTION OF THE LD. AR AND SUBMITTED THAT THE ASSESSEE HAS FAIL ED TO PRODUCE ANY ITA NO. 93/JP/2019 SHRI GOPI LAL BAIRWA VS. ITO 4 SUPPORTING DOCUMENTARY EVIDENCE TO SHOW THAT THE IN COME OF THE ASSESSEE OTHER THAN THE SALARY INCOME. THE ASSESSEE HAS NEVER SHOWN THESE INCOME ON ACCOUNT TUITION FEES AS WELL AS AGR ICULTURAL INCOME IN HIS RETURN OF INCOME, THEREFORE, THIS IS ONLY AFTER THOUGHT SELF SERVING THE STORY CONCOCTED BY THE ASSESSEE. THE LD. DR HAS FURTHER CONTENDED THAT AFFIDAVIT FILED BY THE ASSESSEE BEFORE THE TRI BUNAL WAS NOT PROVIDED BEFORE THE AUTHORITIES BELOW NOT PRODUCED ANY DOCUM ENTARY EVIDENCE BEFORE THE LD. CIT(A) DESPITE VARIOUS OPPORTUNITIES AS THE ASSESSEE DID NOT ATTAINED THE HEARING BEFORE THE LD. CIT(A). THU S, THE LD. DR HAS SUBMITTED THAT WHEN THE ASSESSEE HAS NOT BOTHERED T O APPEAR BEFORE THE LD. CIT(A) THEN THE AFFIDAVIT FILED BY THE ASSE SSEE AT THIS STAGE CANNOT BE ACCEPTED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE AS SESSEE HAS NOT APPEARED BEFORE THE LD. CIT(A) DESPITE 7 TO 8 OPPOR TUNITIES GIVEN BY THE LD. CIT(A) AND FINALLY THE APPEAL OF THE ASSESSEE W AS DISMISSED EX-PARTE ORDER WITHOUT GIVING FINDING ON THE MERITS. FURTHER , THE ASSESSEE HAS NOW FILED AN AFFIDAVIT DATED 02.10.2018 WHICH WAS N OT AVAILABLE BEFORE THE AO AS IT IS PREPARED AFTER ASSESSMENT ORDER PAS SED BY THE ASSESSING ITA NO. 93/JP/2019 SHRI GOPI LAL BAIRWA VS. ITO 5 OFFICER. SINCE THE ASSESSEE NEVER APPEARED BEFORE T HE LD. CIT(A), THEREFORE, THE SAID AFFIDAVIT WAS NOT EVEN PRODUCED BEFORE THE LD. CIT(A). ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE SET ASIDE THE IMPUGNED O RDER PASSED BY THE LD. CIT(A) AND GRANT ONE MORE OPPORTUNITY TO THE AS SESSEE TO PRESENT HIS CASE BEFORE THE LD. CIT(A) AND PRODUCE ALL THE RELEVANT DOCUMENTARY EVIDENCE. AFTER CONSIDERING THE DOCUMENTARY EVIDENC E IF ANY FILED BY THE ASSESSEE AS WELL AS GIVING AN OPPORTUNITY OF HEARIN G THE LD. CIT(A) SHALL DECIDE THE APPEAL OF THE ASSESSEE AFRESH ON MERITS. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/06/2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/06/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI GOPI LAL BAIRWA, TONK. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD, TONK. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. ITA NO. 93/JP/2019 SHRI GOPI LAL BAIRWA VS. ITO 6 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 93/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR