ITO, Kishangarh V. SHARWAN LAL CHOUDHARY, Ajmer

ITA 954/JPR/2013

• Counselvise Citation: 95423114 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 04-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT LD
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 147; 148; 144

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 VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 954/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 THE ITO KISHANGARH CUKE VS. SHRI SHARWAN LAL CHOUDHARY S/O SHRI GHASI RAM CHOUDHARY BAJARO KI DHANI, POST: NUWA, VILLAGE: ROOPANGARH, TEHSIL: KISHANGARH, DISTT.AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGGPC 6091 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT-.. LD. DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/11/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30 /11/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS REVENUES APPEAL ARISING FROM THE ORDER OF LD. CIT(A) AJMER DATED 27-09-2013 FOR AY 2005-06. FOLLOWING C ONCISE GROUNDS ARE RAISED:- LD. CIT(A) ERRED IN LAW AND ON FACTS IN: - 1. RESTRICTING THE ADDITION TO RS. 1,01,640/- AS AGAIN ST 11,25,000/- MADE BY AO BY HOLDING THE IDBI CASH DEPOSITS AS TO AND APPLYING GP RATE OF 10%, WITHOUT THERE BEING ANY NE XUS WITH THE BUSINESS AND FURTHER ALLOWING SET OFF OF RS. 10 ,860/-. 2. IGNORING THE JUDGMENT OF CIT V. CHUNNATHAM BAI 292 ITR 682 (SC) BY HOLDING THE CASH DEPOSITS WHICH IS ASSESSEE S INCOME AS ITS TO QUA WHICH PROPER EXPLANATION HAS NOT BEEN FURNISHED BY THE ASSESSEE. ITA NO. 954//JP/2013 ITO, KISHANGARH VS. SHRI SHARWAN LAL CHOUDHARY, AJM ER . 2 2.1 NONE APPEARED FOR THE ASSESSEE, DESPITE SERVICE OF NOTICE. THEREFORE, THE APPEAL IS BEING DECIDED EX PARTE QUA THE AFTER HEARING THE LD. DR AND PERUSING THE MATERIAL AVAILABLE ON RECOR D. 2.2 LD. DR CONTENDS THAT ASSESSMENT IN QUESTION IN FRAMED EX PARTE U/S 144 R.W.S. 147 OF THE ACT, ASSESSEE THOUGH FILED T HE RETURN OF INCOME IN REPLY TO NOTICE U/S 148 HOWEVER REMAINED NON-COOPER ATIVE IN REASSESSMENT PROCEEDINGS AND DID NOT MAKE PROPER CO MPLIANCE FOR PROPER FRAMING OF REASSESSMENT. LD. AO AFTER CONSIDERING T HE RETURN AND RECORD MADE THE IMPUGNED ADDITIONS, WHICH WERE CONTESTED I N 1 ST APPEAL. SURPRISINGLY NO GROUND WAS TAKEN BEFORE LD. CIT(A) CHALLENGING THE FRAMING OF REASSESSMENT U/S 144 R.W.S. 147. 2.3 BEFORE LD. CIT(A), ASSESSEE FURNISHED EXPLANATI ON AND SUBMITTED EVIDENCE. WITHOUT PROPERLY VERIFYING THE SAME AND C ONDUCTING INQUIRIES THE SUBSTANTIAL PART RELIEF HAS BEEN AWARDED BY TRE ATING THE CASH DEPOSITS IN IDBI BANK AS BUSINESS TO AND THE ADDITION OF INC OME MADE BY AO AFTER PROPER OBSERVATIONS, HAS BEEN TREATED AS BUSI NESS TO. THE INCOME HAS BEEN DETERMINED @ 10% GP ON SUCH TO AND FURTHER REDUCED BY ALLOWING SET OFF OF RS. 10,860/-. WHILE DOING SO LD . AO WAS NEITHER HEARD NOR ANY REMAND REPORT WAS CALLED DESPITE KNOWING FU LLY WELL THAT THE EXPLANATION AND MATERIAL WAS NOT PRODUCED BEFORE LD . AO. BESIDES THE ITA NO. 954//JP/2013 ITO, KISHANGARH VS. SHRI SHARWAN LAL CHOUDHARY, AJM ER . 3 VIEW TAKEN BY LD. CIT(A) IS NOT IN CONFORMITY WITH RATIO OF CIT V. CHUNNATHAM BAI 292 ITR 682 (SC). THE ORDER OF LD. C IT(A) IS NOT IN CONFORMITY WITH PRINCIPLES OF NATURAL JUSTICE, THER EFORE, THE ISSUES MAY BE SET ASIDE AND RESTORED BACK TO THE FILE OF LD. AO T O DECIDE THE SAME AFRESH AFTER CONSIDERING THE MATERIAL PRODUCED BEFORE LD. CIT(A). 2.4 I HAVE HEARD LD. DR AND PERUSED THE MATERIAL AV AILABLE ON RECORD. THE CONTENTIONS RAISED BY LD. DR DESERVE TO BE MERI TED. IN VIEW OF THESE INCONSISTENCIES IT IS JUSTIFIED TO SET ASIDE THE IS SUE BACK TO THE FILE OF LD. AO TO FRAME THE ISSUE DE NOVO AFTER GIVING THE ASSE SSEE AN ADEQUATE OPPORTUNITY OF BEING HEARD. 3.0 IN THE RESULT REVENUE APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 /1 1/2015 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/11/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, KISHANGARH 2. IZR;FKHZ@ THE RESPONDENT- SHRI SHARWAN LAL CHOUDHARY, AJMER 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 954/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR