Sh. Satish Kumar Buckseth, Shimla V. ITO, W-3, Shimla

ITA 962/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4026 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: TEJ MOHAN SINGH ADV OCTE
• Keywords: Income from undisclosed sources; Opportunity of being heard; Additional evidence; Set aside
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO.962/CHD/2018 ASSESSMENT YEAR: 2009-10 SHRI SATISH KUMAR BUCKSETH VS. THE ITO S/O SHRI M.S. BUCKSETH WARD-3, VILL-SHIRGULI, P.O.; DEHA SHIMLA TEHSIL THEOG,SHIMLA PAN NO. AHSPB5603K (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. TEJ MOHAN SINGH, ADVOCTE REVENUE BY : SHRI MANJIT SINGH, SR. DR DATE OF HEARING : 07/03/2019 DATE OF PRONOUNCEMENT : 07/03/2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 15/05/2018 OF LD. CIT(A), PALAMPUR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN UPHOLDING THE FRAMING OF ASSESSMENT FRAMED UNDER SECTION 144 OF THE ACT WHICH IS ARBITRARY AND UNJUSTIFIED. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN U PHOLDING THE ADDITION OF RS. 15,55,000/- FOR DEPOSITS MADE IN THE BANK ACCOUNT W HICH IS ARBITRARY AND UNJUSTIFIED. 3. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS FURTHER ERRED IN UPHOLDING THE ADDITION OF RS.4,30,000/- TREATING AG RICULTURAL INCOME TO BE INCOME FROM UNDISCLOSED SOURCES THOUGH GIVING BENEFIT OF T ELESCOPING AGAINST CASH CREDITS WHICH IS ARBITRARY AND UNJUSTIFIED. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN SIMPLY BRUSHING ASIDE THE ADDITIONAL EVIDENCE SUBMITTED IN THE FORM OF SALE BILLS OF AGRICULTURAL PRODUCE SOLD BY THE ASSESSEE WHICH IS ARBITRARY AND UNJUSTIFIED. 5. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF T HE CASE AND IS, THUS, UNTENABLE. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 15/06/2009 DECLARING AN INCOME OF RS. 1,48,500/- AN D AGRICULTURAL INCOME OF RS. 4,30,000/- WHICH WAS PROCESSED UNDER SECTION 143(1 ) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT), LATER ON THE CA SE WAS SELECTED FOR SCRUTINY AND THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 143(2 ) AND 142(1) OF THE ACT BUT THERE WAS 2 NO COMPLIANCE ON THE PART OF THE ASSESSEE, THEREFOR E, THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 144 OF THE ACT. HE OBSERVE D THAT AS PER THE INFORMATION AVAILABLE ON AIR THE ASSESSEE HAD DEPOSITED CASH OF RS. 15,55,000/- WITH STATE BANK OF INDIA, DEHA, DURING THE PREVIOUS YEAR RELEVANT TO T HE ASSESSMENT YEAR UNDER CONSIDERATION. HE MADE THE ADDITION OF THE SAID AMO UNT. THE ASSESSING OFFICER ALSO TREATED AGRICULTURAL INCOME SHOWN BY THE ASSESSEE A S INCOME FROM UNDISCLOSED SOURCES. 4. BEING AGGRIEVED THE ASSESSEE FILED THE APPEAL BE FORE THE LD. CIT(A) AND FURNISHED CERTAIN BILLS SHOWING SALE OF APPLES, AS AN ADDITIONAL EVIDENCE. HOWEVER THE LD. CIT(A) DID NOT ACCEPT THOSE BY OBSERVING THAT N O APPLICATION UNDER RULE 46A WAS MOVED BY THE ASSESSEE FOR ADMISSION OF ADDITIONAL E VIDENCE. HE ALSO OBSERVED THAT THE ASSESSEE HAD NOT PRODUCED PROOF OF LAND LIKE COPY O F KHASRA, FARD / JAMABANDI ETC. ACCORDINGLY THE ADDITIONS MADE BY THE ASSESSING OFF ICER WERE SUSTAINED. 5. NOW THE ASSESSEE IS IN APPEAL. 6. LD. COUNSEL FOR THE ASSESSEE MOVED AN APPLICATIO N FOR ADMISSION OF ADDITIONAL EVIDENCES THE SAID APPLICATION READ AS UNDER: APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE FOR ADJUDICATION. RESPECTFULLY SHOWETH AS UNDER: THE ABOVEMENTIONED APPEAL IS FIXED FOR HEARING ON T HE 19 TH OF DECEMBER, 2018. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFF ICER MADE AN ADDITION OF RS. 15,50,000/- ON ACCOUNT OF DEPOSITS IN THE BANK ACCO UNT IN AN EX-PARTE ASSESSMENT FRAMED U/S 144 OF THE ACT. THE ASSESSEE IS BASICALLY AN AG RICULTURIST AND HAVING APPLE ORCHARDS. EVIDENCE TO PROVE THIS CONTENTION IS MADE PART OF T HIS ADDITIONAL EVIDENCE RUNNING INTO 1- 87 PAGES. THIS EVIDENCE COULD NOT BE SUBMITTED EARLIER FOR WA NT OF PROPER REPRESENTATION. AS SUCH IT IS, THEREFORE, RESPECTFULLY PRAYED THAT THE ADDITIO NAL EVIDENCE MAY PLEASE BE ADMITTED AND ADJUDICATED UPON. 7. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THESE EVIDENCES GO TO THE ROOT OF THE MATTER, THEREFORE, THESE MAY BE ADMITTE D TO RESOLVE THE PRESENT CONTROVERSY. IT WAS FURTHER SUBMITTED THAT THE LD. CIT WAS NOT JUSTIFIED IN NOT ADMITTING THESE EVIDENCES. 8. IN HIS RIVAL SUBMISSIONS LD. SR. DR OBJECTED TO THE ADMISSION OF THE ADDITIONAL EVIDENCES AND SUPPORTED THE IMPUGNED ORDER PASSED B Y THE LD. CIT(A). 9. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTICED THAT THE LD. CIT(A) HIMSELF ADMITTED AT PAGE NO. 4 OF THE IMPUGNED ORDER THAT T HE ASSESSEE FURNISHED ADDITIONAL EVIDENCES BUT THERE WAS NO APPLICATION UNDER RULE 4 6A FOR ADMISSION OF THE ADDITIONAL EVIDENCES, THEREFORE THOSE WERE NOT ADMITTED AND CO NSIDERED. 3 NOW, THE ASSESSEE MOVED AN APPLICATION FOR ADMISSIO N OF THE ADDITIONAL EVIDENCES AND FURNISHED THE ADDITIONAL EVIDENCES IN THE FORM OF JAMABANDI ISSUED BY THE REVENUE DEPARTMENT, COPY OF INCOME CERTIFICATE ISSUED BY EXECUTIVE MAGISTRATE, DEHA, SHIMLA AND COPY OF CROP PRODUCED RECEIPT. THE SE DOCUMENTS GO TO THE ROOT OF THE MATTER AND ARE RELEVANT TO RESOLVE THE PRESENT CONTROVERSY. THEREFORE, THESE ADDITIONAL EVIDENCES ARE ADMITTED. SINCE THESE DOCU MENTS NOW PRODUCED BY THE ASSESSEE FIRST TIME, WERE NOT AVAILABLE TO THE AUTH ORITIES BELOW, THEREFORE, I DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FIL E OF THE ASSESSING OFFICER TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND BY CONSIDERING THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE FIRST TIME BEFORE THE TRIBUNAL. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 07/03/2019.) SD/- (N.K. SAINI) VICE PRESIDENT PLACE: CHANDIGARH DATED : 07/03/2019 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR