Sh. Surender Jeet Singh , Maharashtra V. ITO Ward-4(3), Jaipur

ITA 963/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9752 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bonafide belief; Set aside
• Section: 201; 72; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES 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 VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 963/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2010-11 SHRI SURENDER JEET SINGH FLAT NO. 302, PRABHA ASHISH, RESIDENCE, NEAR K.J. MEHTA SCHOOL, SADGURU NAGAR, NASHIK ROAD, MAHARASHTRA-422101. CUKE VS. THE ITO, WARD-4(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BBAPS 3485 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : NONE (WRITTEN SUBMISSIONS) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 24/06/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 24/06/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-II, JAIPUR DATED 22.03.2019 FOR THE ASSESSMENT YEAR 201 0-11. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE HOWE VER, THE ASSESSEE HAS FILED A PETITION STATING THAT HE IS A SENIOR CI TIZEN OF 72 YEARS OF AGE AND HAS SINCE SHIFTED FROM JAIPUR TO NASHIK AND IS NOT IN A POSITION TO APPOINT ANY AUTHORIZED REPRESENTATIVE TO REPRESENT HIS CASE BEF ORE THE TRIBUNAL AND HIS WRITTEN SUBMISSIONS MAY BE CONSIDERED FOR ADJUDICAT ING THE MATTER ON MERITS. ITA NO. 963/JP/2019 SHRI SURENDER JEET SINGH VS. ITO 2 3. AT THE OUTSET, IT IS NOTED THAT THE APPEAL HAS B EEN FILED WITH DELAY OF 46 DAYS. THE ASSESSEE HAS FILED A PETITION STATING THE REASONS FOR THE CAUSE OF DELAY IN FILING THE APPEAL HENCE, CONSIDERING THE S AME, THE DELAY IS HEREBY CONDONED AND THE APPEAL IS ADMITTED FOR ADJUDICATIO N. 4. IN HIS WRITTEN SUBMISSIONS, THE ASSESSEE HAS SUB MITTED THAT HE WAS UNDER THE BONAFIDE BELIEF THAT HIS INCOME WAS BELOW THE TAXABLE LIMIT HENCE, HE DID NOT FILE ANY RETURN OF INCOME FOR THE YEAR U NDER CONSIDERATION. FURTHER DUE TO SHIFTING OF HIS RESIDENCE FROM JAIPUR TO NAS HIK, HE COULD NOT COMPLIED WITH VARIOUS NOTICES ISSUED BY THE ASSESSING OFFICE R HOWEVER, HE HAD REQUESTED FOR TRANSFER OF HIS FILE TO NASHIK WHICH HAS STILL NOT HAPPENED. IT WAS FURTHER SUBMITTED THAT THOUGH THE LD. CIT(A) HAS IS SUED CERTAIN NOTICES AS STATED IN THE APPELLATE ORDER, GIVEN THAT HE HAS SH IFTED FROM JAIPUR TO NASHIK, HE DIDNT RECEIVE ANY SUCH NOTICES. FURTHER, HE WA S NOT IN A POSITION TO INCUR ANY EXPENDITURE AND APPOINT ANY AUTHORIZED REPRESEN TATIVE TO APPEAR BEFORE THE LD. CIT(A). AT THE SAME TIME, IT WAS SUBMITTED THAT THERE WAS NO MALAFIDE INTENTION IN NOT ATTENDING TO THE HEARINGS SCHEDULE D BEFORE THE LD CIT(A). IT WAS FURTHER SUBMITTED THAT HE HAS SUBMITTED WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A), SENT THROUGH POST, WHICH HAVE NOT BEEN CONSIDERED AND THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED EX-PARTE BY THE LD CIT(A) WITHOUT ADJUDICATING ON MERITS. IT WAS SUBMITTED THAT EVEN THE EX-PARTE ORDER SHOULD BE PASSED JUDICIOUSLY CONSIDERING ALL THE MATERIAL AVAILABLE ON RECORD. 5. IT WAS FURTHER SUBMITTED BY THE ASSESSEE THAT HE HAS SOLD A TRUCK FOR RS. 7,35,000/- OUT OF WHICH HE HAD RECEIVED AN AMOU NT OF RS. 1,35,000/- ON 10.07.2008 AND THEREAFTER HE HAD RECEIVED AN AMOUNT OF RS. 5,42,315/- (AFTER PAYOFF OF HIS LOAN AMOUNT) ON 04.10.2008/- THROUGH ELECTRONIC TRANSFER IN HIS BANK ACCOUNT AND OUT OF THE SAID FUNDS, HE HAS OPEN ED A FIXED DEPOSIT OF RS. 4,00,000/- WITH BANK OF BARODA. IT WAS ACCORDI NGLY SUBMITTED THAT THE ITA NO. 963/JP/2019 SHRI SURENDER JEET SINGH VS. ITO 3 SOURCE OF THE FIXED DEPOSIT IS THE AMOUNT RECEIVED FROM SALE OF HIS TRUCK. IT WAS FURTHER SUBMITTED THAT BEING A SENIOR CITIZEN, HE WAS UNDER BONAFIDE IMPRESSION THAT THAT HIS INCOME WAS BELOW TAXABLE L IMIT HENCE, HE DID NOT FILE ANY RETURN OF INCOME. FURTHER, IN SUPPORT OF HIS CL AIM THAT HE HAS SOLD THE TRUCK AND SALE CONSIDERATION HAS BEEN DEPOSITED IN HIS BANK ACCOUNT, HE HAS SUBMITTED A COPY OF THE SALE RECEIPT OF THE TRUCK, LETTER OF TRANSFER TO THE REGIONAL TRANSPORT OFFICE, JAIPUR, FORM NO. 28, NO OBJECTION LETTER AND REGISTRATION CERTIFICATE IN FORM NO. 23, INSURANCE COVER NOTE OF THE ORIENT INSURANCE COMPANY LTD. AND COPY OF PASS BOOK OF BAN K OF BARODA SHOWING RECEIPT OF SALE PROCEEDS OF TRUCK AMOUNTING TO RS. 5,42,315/- AND SUBSEQUENT TRANSFER OF RS. 4,00,000/- TOWARDS OPENING THE FDR. IT WAS ACCORDINGLY SUBMITTED THAT SOURCE OF THE FIXED DEPOSIT IS DULY EXPLAINED AND THE ADDITION MADE BY THE ASSESSING MAY BE DELETED. 6. PER CONTRA, THE LD. DR DRAWN OUR REFERENCE TO T HE ORDER OF LD. CIT(A) AND SUBMITTED THAT ON AS MANY AS FIVE OCCASIONS, TH E ASSESSEE WAS PROVIDED AN OPPORTUNITY BY THE LD. CIT(A) BUT THE ASSESSEE H AS NOT BOTHERED EVEN TO RESPOND TO SUCH NOTICES AND TO APPEAR BEFORE THE LD . CIT(A). FURTHER, THERE IS NOTHING ON RECORD THAT WRITTEN SUBMISSIONS WERE REC EIVED BY THE OFFICE OF LD CIT(A) AND HENCE, THE CONTENTION OF THE ASSESSEE CA NNOT BE ACCEPTED. IT WAS ACCORDINGLY SUBMITTED THAT MORE THAN ADEQUATE OPPOR TUNITY HAS BEEN PROVIDED BY THE LD. CIT(A) AND NO PURPOSES WOULD BE SERVED I N PROVIDING FURTHER OPPORTUNITY TO THE ASSESSEE. ON MERITS, THE LD DR SUBMITTED THAT THERE IS NO COMPLIANCE DURING THE COURSE OF ASSESSMENT PROCEEDI NGS AND THE ORDER HAS BEEN PASSED U/S 144 OF THE ACT AND SIMILAR SITUATIO N PREVAILED DURING THE APPELLATE PROCEEDINGS. FURTHER, THE ASSESSEE HAS F ILED THE DOCUMENTS IN SUPPORT OF HIS CLAIM FOR THE FIRST TIME BEFORE THE TRIBUNAL AND GIVEN THAT THESE DOCUMENTS WERE NOT AVAILABLE BEFORE THE LOWER AUTHO RITIES, THERE IS NO FINDING WHICH COULD HAVE BEEN RECORDED ON VERIFICATION OF S UCH DOCUMENTS AND WHERE ITA NO. 963/JP/2019 SHRI SURENDER JEET SINGH VS. ITO 4 THE BENCH SO DECIDE, THE MATTER MAY BE REMANDED BAC K TO CARRY OUT THE NECESSARY VERIFICATION. FURTHER, LD DR RELIED ON T HE ORDER OF THE LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE MATTER HAS B EEN LISTED FOR HEARING ON COUPLE OF OCCASIONS BY THE LD CIT(A) AND, THEREAFTE R, DUE TO NON-ATTENDANCE BY THE ASSESSEE OR HIS COUNSEL, THE SAME HAS BEEN D ECIDED EX-PARTE BY THE LD CIT(A). THE ASSESSEE HAS EXPLAINED THE REASONS FOR NON-APPEARANCE AND THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY AND ESPECIALLY WHERE THE MATTER HAS NOT BEEN DECIDED ON MERITS, WE BELIEVE T HAT THE ASSESSEE DESERVES ONE MORE OPPORTUNITY TO PUT FORTH HIS ARGUMENTS AND CONTENTIONS. NORMALLY, WE WOULD HAVE SET ASIDE THE MATTER TO THE FILE OF T HE LD. CIT(A), HOWEVER, IN THE PECULIAR FACTS OF THE PRESENT CASE WHERE THE AS SESSEE BEING A SENIOR CITIZEN, WHO IS CURRENTLY BASED OUT OF NASHIK, HIS INCAPACITY TO APPOINT ANY COUNSEL IN JAIPUR AND GIVEN THE CURRENT SITUATION P REVAILING IN THE COUNTRY DUE TO COVID PANDEMIC, ITS UNLIKELY THAT HE WILL BE ABL E TO ATTEND TO THE PROCEEDINGS BEFORE THE LOWER AUTHORITIES IN THE NEA R FUTURE, WE DECIDE TO EXAMINE THE MATTER ON MERITS BASED ON HIS WRITTEN S UBMISSIONS AND TAKING INTO ACCOUNT THE CONTENTIONS ADVANCED BY THE LD DR AND OTHER MATERIAL ON RECORD. 8. THE LIMITED ISSUE UNDER CONSIDERATION RELATES TO SOURCE OF FIXED DEPOSIT PLACED BY THE ASSESSEE WITH THE BANK OF BARODA AND WHETHER THE ASSESSEE HAS PROVIDED REASONABLE EXPLANATION EXPLAI NING THE SOURCE OF SUCH DEPOSITS OR NOT. ON PERUSAL OF THE STATEMENT OF AS SESSEES BANK ACCOUNT MAINTAINED WITH BANK OF BARODA, WE FIND THAT A FIXE D DEPOSIT HAS BEEN PLACED ON 4.10.2008 FOR RS 4,00,000/- (AND NOT RS 442,993/ -AS STATED IN THE ASSESSMENT ORDER) AND PRIOR TO THAT, ON THE SAME DA TE, THERE IS CREDIT OF RS 542,315/-. THE ASSESSEE EXPLAINED THAT RS 542,315/ - IS RECEIVED OUT OF THE ITA NO. 963/JP/2019 SHRI SURENDER JEET SINGH VS. ITO 5 SALE PROCEEDS OF THE TRUCK WHICH WAS SOLD BY HIM DU RING THE YEAR AND THE SOURCE OF SUCH FIXED DEPOSIT IS THEREFORE AMOUNT RE CEIVED BY HIM TOWARDS SALE PROCEEDS OF THE TRUCK. THE ASSESSEE HAS SUBMITTED THE REGISTRATION CERTIFICATE OF THE TRUCK IN HIS NAME, THE TRANSFER AGREEMENT WI TH THE BUYER AND OTHER FILINGS WITH THE TRANSPORT AUTHORITY FOR OBTAINING NOC, ETC. WE THEREFORE FIND THAT THE ASSESSEE HAS REASONABLY EXPLAINED THE SOUR CE OF FUNDS OF FIXED DEPOSIT WHICH WAS OPENED ON THE SAME DATE AS THE DA TE OF CREDIT OF PART OF THE SALE PROCEEDS OF THE TRUCK AND THE SAID DEPOSIT DOESNT REMAIN UNEXPLAINED AND CANNOT BE BROUGHT TO TAX IN THE HAN DS OF THE ASSESSEE. THE ADDITION OF RS 4,00,000/- (WRONGLY STATED AS RS 4,4 2,993/- IN THE ASSESSMENT ORDER) IS HEREBY DIRECTED TO BE DELETED. THE REMAIN ING ADDITION MADE BY THE ASSESSING OFFICER IS ON ACCOUNT OF INTEREST OF RS 2 5,747/- IN RESPECT OF WHICH THERE IS NO DISPUTE RAISED BY THE ASSESSEE AND THUS , NO INTERFERENCE IS CALLED FOR IN THE FINDINGS OF THE ASSESSING OFFICER IN THI S REGARD. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISPOSED O FF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 24/06/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV ) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24/06/2020 *SANTOSH . VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SURENDER JEET SINGH, NASHIK. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD- 4(3), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) ITA NO. 963/JP/2019 SHRI SURENDER JEET SINGH VS. ITO 6 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 963/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR