SHRI KARAMVEER SINGH, ALWAR V. INCOME TAX OFFICER, WARD-BHIWADI, ALWAR

ITA 980/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0811 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 23-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S L PODDAR ADV MS
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 142(1); 250; 145(3); 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES 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. 980/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2013-14 SHRI KARAMVEER SINGH, M/S CHOUHAN TRADING COMPANY, ALWAR BYE PASS ROAD, TAPUKARA, ALWAR-301707. CUKE VS. I.T.O., WARD-BHIWADI, PLACE-ALWAR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: ATCPS 8898 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI S.L. PODDAR (ADV) JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING: 10/06/2020 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 11/06/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 19/03/2019 OF LD. CIT(A), ALWAR FOR THE A.Y. 2013-14. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. THERE IS A DELAY OF 60 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY WHICH IS SUPPORTED BY AN AFFIDAVIT. ITA 980/JP/2019_ SH. KARAMVEER SINGH VS ITO 2 3. THE LD AR APPEARING ON BEHALF OF THE ASSESSEE HAS EXPLAINED THE CAUSE OF DELAY THAT THE IMPUGNED ORDER OF THE LD. CIT(A) WAS NOT RECEIVED BY THE ASSESSEE BUT THE SAME WAS SERVED UPON SOME OTHER PERSON OF THE SAME NAME AS OF ASSESSEE OF THE VILLAGE. SUBSEQUENTLY, THE IMPUGNED ORDER WAS HANDED OVER TO THE ASSESSEE BY THE SAID OTHER PERSON AND THEREFORE, THERE WAS A DELAY IN FILING THE PRESENT APPEAL. THUS, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE DELAY IN FILING THE APPEAL IS NEITHER INTENTIONAL NOR WILLFUL BUT DUE TO THE REASON THAT THE IMPUGNED ORDER WAS NOT SERVED UPON THE ASSESSEE BUT IT WAS SERVED UPON SOME OTHER PERSON OF THE SAME NAME AND WHEN THE ASSESSEE HAS FINALLY RECEIVED THE IMPUGNED ORDER OF THE LD. CIT(A), HE HAS FILED BY THE PRESENT APPEAL. 4. ON THE OTHER HAND, THE LD DR HAS OBJECTED TO THE CONDONATION OF DELAY AND SUBMITTED THAT THE ASSESSEE IS A HABITUAL DEFAULTER IN APPEARING BEFORE THE A.O. AS WELL AS THE LD. CIT(A). SHE HAS SUBMITTED THAT THE ASSESSMENT ORDER WAS PASSED U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) AND THEREAFTER THE ASSESSEE ALSO DID NOT APPEAR BEFORE THE LD. CIT(A) AND HENCE THE APPEAL OF THE ASSESSEE WAS DISMISSED EX PARTE. THUS, THE LD. DR HAS SUBMITTED THAT HAVING REGARD TO THE ANTECEDENTS OF THE ASSESSEE OF NOT ATTENDING THE PROCEEDINGS BEFORE ITA 980/JP/2019_ SH. KARAMVEER SINGH VS ITO 3 THE A.O. AS WELL AS THE LD. CIT(A), THE DELAY IN FILING THE PRESENT APPEAL IS ALSO PART OF THE SAME PRACTICE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS EXPLAINED THE DELAY IN FILING THE PRESENT APPEAL THAT THE IMPUGNED ORDER SERVED UPON ANOTHER PERSON NAMELY KARAMVEER SINGH, S/O- SHRI MOHAN SINGH, RESIDENT OF THE SAME VILLAGE AS OF THE ASSESSEE AND SUBSEQUENTLY THE SAID PERSON DELIVERED THIS ORDER TO THE ASSESSEE IN THE MONTH OF JUNE, 2019. THEREFORE, THE DELAY IN FILING THE APPEAL HAS BEEN EXPLAINED BY THE ASSESSEE DUE TO THE MISDELIVERY OF THE IMPUGNED ORDER TO SOME OTHER PERSON. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR CONDONATION OF DELAY. WE ARE SATISFIED WITH THE EXPLANATION OF THE ASSESSEE FOR THE DELAY OF 60 DAYS IN FILING THE PRESENT APPEAL. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, THE DELAY OF 60 DAYS IN FILING THE APPEAL IS CONDONED. 6. IN THIS APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN PASSING THE EX PARTE ORDER WITHOUT PROVIDING OPPORTUNITY TO THE ASSESSEE. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 22,31,000/- MADE BY THE A.O. ON ACCOUNT OF CASH DEPOSITED INTO THE BANK, WHICH IS OUT OF SALES MADE BY THE ASSESSEE. ITA 980/JP/2019_ SH. KARAMVEER SINGH VS ITO 4 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 1,71,500/- BY INVOKING THE PROVISIONS OF SECTION 145(3) OF THE INCOME TAX ACT, 1961 AND THEREBY APPLYING THE GP RATE OF 6.68% AGAINST DECLARED GP RATE OF 4.87%. 4. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD, AMEND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 7. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THOUGH THE A.O. HAS PASSED AN EX PARTE ORDER U/S 144 OF THE ACT, HOWEVER, THE ASSESSEE HAS DULY COMPLIED WITH THE NOTICES ISSUED BY THE A.O. AS RECORDED IN THE ASSESSMENT ORDER ITSELF. HOWEVER, DUE TO LAPSE ON THE PART OF THE AUTHORIZED REPRESENTATIVE TO FILE THE POWER OF ATTORNEY, THE A.O. HAS PASSED THE ORDER U/S 144 OF THE ACT. THE LD AR HAS SUBMITTED THAT THE ASSESSEE IS IN THE BUSINESS OF TRADING IN CEMENT AND HE IS A DEAAER OF ULTRATECH CEMENT. THE A.O. HAS MADE THE ADDITION ON ACCOUNT OF DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE OF RS. 22,31,000/-. THE SOURCE OF WHICH IS NOTHING BUT THE SALE PROCEEDS OF THE CEMENT, THEREFORE, ALL THE TRANSACTIONS OF PURCHASE AND SALE OF CEMENT ARE DULY RECORDED IN THE BOOKS OF ACCOUNT WHICH WERE ALSO AUDITED THEN THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT IS CLEARLY EXPLAINED IN THE BOOKS OF ACCOUNT ITSELF. THE A.O., THOUGH, REJECTED THE BOOKS OF ACCOUNT, HOWEVER, NO SPECIFIC DEFECT WAS POINTED OUT. APART FROM MAKING THE ADDITION ON ACCOUNT OF CASH DEPOSIT IN THE BANK ACCOUNT, THE A.O. HAS ALSO MADE A TRADING ADDITION BY APPLYING A GP RATIO AT 6.86%. THUS, THE ITA 980/JP/2019_ SH. KARAMVEER SINGH VS ITO 5 LD AR HAS SUBMITTED THAT WHEN THE A.O. HAS NOT POINTED OUT ANY DEFECT IN THE AUDITED BOOKS OF ACCOUNT OF THE ASSESSEE THEN THE REJECTION OF BOOKS OF ACCOUNT AND CONSEQUENTIAL TRADING ADDITION IS NOT SUSTAINABLE. ALTERNATIVELY, THE LD AR HAS SUBMITTED THAT SINCE THE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER OF THE LD. CIT(A) WERE PASSED EX PARTE, THEREFORE, THE MATTER MAY BE SET ASIDE TO THE RECORD OF THE A.O. TO CONSIDER THE RELEVANT RECORD AS WELL AS BOOKS OF ACCOUNT OF THE ASSESSEE AND THEN PASS A FRESH ORDER. 8. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY OBJECTED TO THE REQUEST OF SETTING ASIDE OF THE MATTER AND SUBMITTED THAT DESPITE SEVERAL OPPORTUNITIES GRANTED BY THE A.O., THERE IS NO COMPLIANCE ON BEHALF OF THE ASSESSEE TO THE NOTICES ISSUED U/S 142(1) OF THE ACT. THE A.O. HAS SPECIFICALLY MENTIONED IN PARA 2 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS FAILED TO COMPLY WITH THE NOTICES AND EVEN THE POWER OF ATTORNEY WAS NOT FILED BY THE REPRESENTATIVE WHO APPEARED ON BEHALF OF THE ASSESSEE. FURTHER THE ASSESSEE HAS NOT PRODUCED BOOKS OF ACCOUNT BEFORE THE A.O. AND THEREFORE, THE A.O. WAS NOT HAVING OCCASION TO EXAMINE THE BOOKS OF ACCOUNT. EVEN BEFORE THE LD. CIT(A), THE ASSESSEE HAS NOT APPEARED AND ATTENDED THE PROCEEDINGS DESPITE SEVERAL OPPORTUNITIES GIVEN BY THE LD. CIT(A). THUS, THE LD. DR HAS SUBMITTED ITA 980/JP/2019_ SH. KARAMVEER SINGH VS ITO 6 THAT THE ASSESSEE DOES NOT DESERVE ANY MORE OPPORTUNITY. SHE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE IS AN INDIVIDUAL AND PROPRIETOR OF M/S CHOUHAN TRADING COMPANY ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF CEMENT IN ALWAR DISTRICT OF RAJASTHAN. THE ASSESSEE HAS FILED PAPER BOOK BEFORE THE TRIBUNAL CONTAINING CASH BOOK, BANK ACCOUNT, LEDGER ACCOUNT AND AUDIT REPORT. THESE DOCUMENTS CONTAIN THE ENTRIES OF BUSINESS TRANSACTION OF THE ASSESSEE OF PURCHASE AND SALE OF CEMENT AS WELL AS DEPOSITS MADE IN THE BANK ACCOUNT. THOUGH, THE BOOKS OF ACCOUNT OF THE ASSESSEE ARE AUDITED, HOWEVER, THE ASSESSEE DID NOT PRODUCE THE SAME BEFORE THE A.O. DURING THE ASSESSMENT PROCEEDINGS AND CONSEQUENTLY THE A.O. PASSED AN EX PARTE ORDER WHEREBY THE ENTIRE DEPOSIT MADE IN THE BANK ACCOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE AS WELL AS A TRADING ADDITION OF RS. 1,71,500/-. THUS, THE ASSESSMENT ORDER PASSED BY THE A.O. IS NOT BASED ON THE EXAMINATION AND VERIFICATION OF THE BOOKS OF ACCOUNT BUT THE A.O. HAS ESTIMATED THE INCOME OF THE ASSESSEE AND ALSO MADE ADDITION OF DEPOSIT MADE IN THE BANK ACCOUNT FOR WANT OF ANY SUPPORTING DOCUMENTARY EVIDENCE TO EXPLAIN THE SOURCE OF SAID DEPOSIT. NOW THE ASSESSEE HAS PRODUCED RELEVANT RECORD IN SUPPORT OF SOURCE OF CASH DEPOSIT IN THE BANK BEING ITA 980/JP/2019_ SH. KARAMVEER SINGH VS ITO 7 THE SALE PROCEEDS OF THE CEMENT. THOUGH THE ASSESSEE HAS NOT APPEARED BEFORE THE LD. CIT(A) DESPITE SEVERAL OPPORTUNITIES, HOWEVER, WE FIND THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE SUMMARILY BY NON-SPEAKING IMPUGNED ORDER. THE RELEVANT PART OF FINDING OF THE LD. CIT(A) IN PARA 3.2 AND 3.3 READ AS UNDER: 3.1 IN THIS CASE, NOTICES U/S 250 WAS ISSUED TO THE APPELLANT BY FIXING THE HEARING ON 14-09-2017, 05-10-2017, 17-10-2017, 23-11-2017, 12-12- 2017, 27-12-2017, 21-03-2018, 17-04-2018, 14-08-2018, 05-09-2018, 19-09-2018 AND 19-02-2019 BY THIS OFFICE. NO ONE ATTENDED. OPPORTUNITY OF BEING HEARD IS CENTRAL TO ANY ADJUDICATION PROCESS BUT THAT DOES NOT ABSOLVE THE APPELLANT FROM NON ATTENDANCE AND SUBMISSION OF EVIDENCES IN SUPPORT OF GROUND OF APPEAL DESPITE REPEATED AND SEVERAL NOTICES SENT AND SERVED AND NOT RESPONDED. AN ADJUDICATION PROCEEDING CANNOT BE HELD IN ABEYANCE INDEFINITELY ON ACCOUNT OF NON ATTENDANCE OF THE APPELLANT OR HIS AR. IN THIS CASE THE CONTINUED NON RESPONSIVE ATTITUDE OF THE APPELLANT HAS LEFT NO OPTION BEFORE ME BUT TO DECIDE THE APPEAL ON THE BASIS OF EVIDENCES ON RECORD. IT IS ALSO. TO BE KEPT IN MIND THAT EVEN DURING ASSESSMENT PROCEEDINGS NO ONE ATTENDED BEFORE THE A.O. 3.2 I HAVE TAKEN INTO CONSIDERATION THE FACTS OF THE CASE FILED ALONG WITH FORM NO. 35. 3.3 IN ABSENCE OF ANY SUBMISSIONS BY THE APPELLANT IN SUPPORT OF ITS CLAIMS, I HAVE RELIED UPON THE FACTS MENTIONED IN THE ASSESSMENT ORDER. ACCORDINGLY, I DO NOT SEE ANY REASON TO INTERFERE IN THE ASSESSMENT ORDER. HENCE, THE APPEAL IS DISMISSED. ITA 980/JP/2019_ SH. KARAMVEER SINGH VS ITO 8 THUS, IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHERE THE A.O. HAS MADE ADDITION OF THE ENTIRE CASH DEPOSITED IN THE BANK ACCOUNT WITHOUT EXAMINING THE SOURCE BEING THE SALE PROCEEDS AS WELL AS TRADING ADDITION MADE FOR WANT OF PRODUCTION OF BOOKS OF ACCOUNT AND FURTHER THE LD. CIT(A) HAS NOT DECIDED THE ISSUE ON MERITS, THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE MATTER IS REQUIRED TO BE RECONSIDERED BY CONDUCTING A PROPER VERIFICATION AND ENQUIRY AT THE LEVEL OF THE A.O. OF THE EVIDENCES AND BOOKS OF ACCOUNT AS PRODUCED BY THE ASSESSEE BEFORE THIS TRIBUNAL. ACCORDINGLY, WE SET ASIDE THE MATTER TO THE RECORD OF THE A.O. FOR ADJUDICATION OF THE SAME AFRESH AFTER CONSIDERING THE DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN APPROPRIATE OPPORTUNITY OF HEARING BEFORE PASSING THE ORDER. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JUNE, 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:- 11/06/2020 *RANJAN ITA 980/JP/2019_ SH. KARAMVEER SINGH VS ITO 9 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI KARAMVEER SINGH, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-BHIWADI, PLACE-ALWAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 980/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR