Yogesh Kumar Oandey, Prop. M/s Pawan Traders, Mirzapur V. ITO, Mirzapur

ITA 99/ALLD/2014

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2715 (ITAT-ALLAHABAD)
• Duration Of Justice: 6 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 21-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 143(2); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD (THROUGH VIRTUAL COURT) BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO. 99/ALLD/2014 ASSESSMENT YEAR: 2009-10 MR. YOGESH KUMAR PANDEY PROP. M/S. PAWAN TRADERS VINDHYAPURI COLONY, MIRZAPUR - 231001 V. ITO, RANGE- III(4), MIRZAPUR PAN: ALSPP 7677 B (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI PRAVEEN GODBOLE, CA RESPONDENT BY: SHRI A. K. SINGH, SR. DR DATE OF HEARING: 24. 11. 2020 DATE OF PRONOUNCEMENT: 26.11. 2020 O R D E R PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: THIS APPEAL, FILED BY ASSESSEE, BEING ITA NO. 99/ALLD/2014, IS DIRECTED AGAINST APPELLATE ORDER DATED 30.11.2013 IN APPEAL NO. 31/ITO/R-III(4)/MZP/11-12 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS,) ALLAHABAD(HEREINAFTER CALLED 'THE CIT(A)'),FOR ASSESSMENT YEAR(AY)2009-10, THE APPELLATE PROCEEDINGS HAD ARISEN BEFORE LEARNED CIT(A) FROM ASSESSMENT ORDER DATED 23.12.2011 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED 'THE AO') U/S 143(3)OF THE INCOME-TAX ACT , 1961 (HEREINAFTER CALLED 'THE ACT') FOR AY: 2009-10. WE HAVE HEARD BOTH THE PARTIES THROUGH VIDEO CONFERENCING MODE THROUGH VIRTUAL COURT. ITA NO.99/ALLD/2014 ASSESSMENT YEAR: 2009-10 YOGESH KUMAR PANDEY 2 2. THE GROUNDS OF APPEALS RAISED BY ASSESSE IN MEMO OF APPEAL FILED WITH INCOME- TAX APPELLATE TRIBUNAL, ALLAHABAD ( HEREINAFTER CALLED THE TRIBUNAL ) READS AS UNDER : 1. THAT IN ANY VIEW OF THE MATTER ASSESSMENT FRAMED AS PER ORDER DATED 16.12.2012 U/S 143(3) IS BAD IN BOTH IN FACT OF LAW AND THE ADDITION WERE MADE WITHOUT CONSIDERING THE FACTS PROPERLY. 2 THAT IN ANY VIEW OF THE MATTER INCOME FROM TRUCK PLYING BUSINESS MAINTAINED DETERMINED AT RS. 1,61,000/- IS HIGHLY UNJUSTIFIED IN CIRCUMSTANCES OF THE CASE. 3. THAT IN ANY VIEW OF THE MATTER ADDITION OF RS. 3,24,222/- BY INVOKING PROVISION OF U/S 69 MADE BY THE ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME TAX (APPEAL) IS HIGHLY UNJUSTIFIED IN CIRCUMSTANCES OF THE CASE. 4. THAT IN ANY VIEW OF THE MATTER ADDITION OF RS. 5,37,000/- MAINTAINED BY COMMISSIONER OF INCOME TAX (APPEAL) IS HIGHLY UNJUSTIFIED IN FACT OF CIRCUMSTANCES OF THE CASE. 5. THAT IN ANY VIEW OF THE MATTER ADDITION OF RS. 32,724/- MAINTAINED BY COMMISSIONER OF INCOME TAX (APPEAL) IS HIGHLY UNJUSTIFIED IN FACT OF CIRCUMSTANCES OF THE CASE. 6. THAT IN ANY VIEW OF THE MATTER ADDITION MADE BY THE ASSESSING OFFICER AND PARTLY MAINTAIN UNDER DIFFERENT HEAD ARE UNWARRANTED BECAUSE THE ADDITION MAINTAINED WITHOUT ANY VALID REASON ANY BY IGNORING THE EVIDENCE CORRECT FACT HENCE IS LIABLE TO BE DELETED. 7. THAT IN ANY VIEW OF THE MATTER THE ASSESSEE RESERVES THE RIGHT TO TAKE ANY FRESH GROUND OF APPEAL BEFORE HEARING OF APPEAL. 3. THE LEARNED COUNSEL FOR THE ASSESSEE HAS STATED BEFORE THE BENCH THAT THE ASSESSEE DOES NOT WANT TO PRESS GROUND NO. 2 & 5 AND PRAYERS WERE MADE BY LEARNED COUNSEL FOR THE ASSESSEE TO DISMISS GROUND(S) NO. 2 & 5 RAISED BY ASSESSEE IN MEMO OF APPEAL FILED WITH TRIBUNAL AS NOT BEING PRESSED. THE LD. DR DID NOT RAISED ANY OBJECTION IF THE AFORESAID GROUNDS ARE DISMISSED AS NOT BEING PRESSED . AFTER HEARING BOTH THE PARTIES, WE DISMISS GROUNDS NO. 2 & 5 AS NOT BEING PRESSED. WE ORDER ACCORDINGLY. ITA NO.99/ALLD/2014 ASSESSMENT YEAR: 2009-10 YOGESH KUMAR PANDEY 3 4. GROUND NO. 1, 6 & 7 ARE GENERAL IN NATURE AND DOES NOT REQUIRE SEPARATE ADJUDICATION MORE-SO NO CONTENTIONS WERE RAISED BY LEARNED COUNSEL FOR THE ASSESSEE WITH RESPECT TO THESE GROUNDS THERETO AND HENCE THESE GROUNDS OF APPEAL NOS. 1,6 AND 7 ARE DISMISSED AS BEING GENERAL IN NATURE. WE ORDER ACCORDINGLY. 5. NOW, WE ARE LEFT WITH GROUNDS NO. 3 & 4 RAISED BY ASSESSEE IN MEMO OF APPEAL FILED WITH THE TRIBUNAL AGAINST WHICH BOTH THE PARTIES HAVE RAISED ARGUMENTS VEHEMENTLY IN SUPPORT OF THEIR CONTENTIONS. THE ASSESSEE BEING AGGRIEVED BY THE ADDITIONS MADE TO HIS INCOME BY THE AO WHICH WAS LATER CONFIRMED BY LD. CIT(A) HAS RAISED GROUNDS NO. 3 & 4 IN MEMO OF APPEAL FILED WITH TRIBUNAL CHALLENGING THE ADDITIONS TO INCOME MADE BY THE AUTHORITIES BELOW. 6. NOW WE PROCEED TO ADJUDICATE GROUND NO.3 AND 4 RAISED BY ASSESSEE IN MEMO OF APPEAL FILED WITH THE TRIBUNAL. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF COAL, LIQUOR AND TRUCK BUSINESS, BUT HOWEVER THE INCOME FROM TRUCK BUSINESS WAS NOT DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME FILED BY THE ASSESSEE WITH THE REVENUE. THE AO ON ITS PART WHILE FRAMING ASSESSMENT U/S 143(3) READ WITH SECTION 143(2) OF THE 1961 ACT HAS ASSESSED INCOME FROM TRUCK BUSINESS TO THE TUNE OF RS. 1,61,000/- UNDER PRESUMPTIVE REGIME BY INVOKING PROVISIONS OF SECTION U/S 44AE OF THE 1961 ACT. THE ASSESSEE HAS DURING THE YEAR UNDER CONSIDERATION PURCHASED TRUCK NO.UP63H9654 ON 09.06.2008 . AS PER AO THE PURCHASE PRICE OF THE TRUCK WAS RS.14,34,222/- AND FINANCE AMOUNT AVAILED BY THE ASSESSEE FROM FINANCE COMPANY WAS TO THE TUNE OF RS.11,00,000/- , AND THE ASSESSEE HAS INVESTED A SUM OF RS.3,34,222/- IN THE PURCHASE OF TRUCK OUT OF HIS OWN SOURCES. AS PER AO SINCE NO EXPLANATION WAS MADE BY THE ASSESSEE TOWARDS THE SAID INVESTMENTS IN THE TRUCK MADE BY THE ASSESSEE AS HIS CONTRIBUTION TOWARDS PURCHASE OF TRUCK , AN ADDITION OF RS.3,34,222/- TOWARDS INCOME OF THE ASSESSEE WAS MADE BY THE AO BY INVOKING PROVISIONS OF SECTION 69 OF THE 1961 ACT , WHILE FRAMING ASSESSMENT U/S 143(3) READ WITH SECTION 143(2) OF THE 1961 ACT. BEING AGGRIEVED BY ITA NO.99/ALLD/2014 ASSESSMENT YEAR: 2009-10 YOGESH KUMAR PANDEY 4 AN ASSESSMENT FRAMED BY THE AO, THE ASSESSEE FILED FIRST APPEAL WITH LD. CIT(A) AND THE ASSESSEE MADE SUBMISSIONS BEFORE LEARNED CIT(A) THAT OUT OF THE ABOVE AMOUNT , AN AMOUNT OF RS. 2,44,222/- WAS ON ACCOUNT OF ADVANCE FINANCE CHARGES ON LOAN GRANTED BY FINANCIER FOR PURCHASE OF TRUCK WHICH WERE COLLECTED IN ADVANCE AND ADDED TO THE COST OF TRUCK FOR THE PURPOSES OF FUNDING BY THE FINANCIER AND FURTHER AN AMOUNT OF RS. 90,000/- WERE INSURANCE BEING PAID BY THE FINANCE COMPANY ON BEHALF OF THE ASSESSEE FOR ACQUISITION OF THE TRUCK WHICH HAS BEEN ADDED TO THE COST OF THE TRUCK FOR THE PURPOSES OF GRANTING/FUNDING LOAN . IT WAS FURTHER SUBMITTED THAT RS. 71,199/- WAS PAID BY THE ASSESSEE ON 18.03.2008 WHICH WAS ACCEPTED BY THE REVENUE. THE LEARNED CIT(A) DID NOT ACCEPTED THE EXPLANATION FILED BY THE ASSESSEE WITH RESPECT TO AFORESAID AMOUNT OF RS. 2,44,222/- AND RS. 90,000/- TOWARDS ADVANCE FINANCE CHARGES AND FOR INSURANCE CHARGES RESPECTIVELY . BEFORE US ALSO THE SIMILAR CONTENTION WERE MADE BUT HOWEVER NO THIRD PARTY EVIDENCES HAS BEEN BROUGHT ON RECORD BY ASSESSEE TO JUSTIFY/SUBSTANTIATE THE SAME EXCEPT SELF SERVING STATEMENT . THE LD. DR SUPPORTED THE APPELLATE ORDER PASSED BY LEARNED CIT(A) HAS VEHEMENTLY ARGUED THAT THE ADDITION WERE TO BE CONFIRMED. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD , IN OUR CONSIDERED VIEW ONE MORE OPPORTUNITY NEED TO BE GRANTED TO THE ASSESSEE TO PRODUCE RELEVANT EVIDENCES TO SUBSTANTIATE CONTENTIONS AS ARE MADE WITH RESPECT TO ADVANCE FINANCE CHARGES COLLECTED BY FINANCIER WHICH IS ADDED TO LOAN AMOUNT AS WELL INSURANCE OF RS. 90000/- PAID BY FINANCIER ON BEHALF OF THE ASSESSEE TO INSURE THE TRUCK PURCHASED BY THE ASSESSEE. THUS, WE ARE REMITTING THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION OF THE MATTER DENOVO . THE ASSESSEE IS DIRECTED TO PRODUCE RELEVANT DOCUMENTARY EVIDENCES BEFORE THE AO TO JUSTIFY HIS STAND. THE AO SHALL ADMIT EVIDENCES FILED BY THE ASSESSEE WHICH SHALL BE ADJUDICATED ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE AO SHALL GIVE PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE . THE GROUND NUMBER 3 FILED BY ASSESSEE IN MEMO OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. ITA NO.99/ALLD/2014 ASSESSMENT YEAR: 2009-10 YOGESH KUMAR PANDEY 5 7. THE SECOND ADDITION WHICH IS AGITATED BY ASSESSEE BEFORE US IS WITH RESPECT TO AN AMOUNT OF RS. 5,37,000/-TOWARDS CASH DEPOSITS MADE IN AXIS BANK ACCOUNT DURING THE YEAR UNDER CONSIDERATION . THE SAID BANK ACCOUNT WITH AXIS BANK WAS NOT DISCLOSED BY THE ASSESSEE IN ITS RETURN OF INCOME FILED WITH THE REVENUE. THE TOTAL CASH DEPOSITS OF RS. 20,37,000/- WERE MADE BY THE ASSESSEE IN THE SAID BANK ACCOUNT WITH AXIS BANK DURING THE YEAR UNDER CONSIDERATION, WHICH STOOD ADDED BY THE AO IN THE ABSENCE OF EXPLANATION FILED BY THE ASSESSEE . THE ASSESSEE HAD EXPLAINED CASH DEPOSIT OF RS. 15 LAKHS BEFORE THE LD. CIT(A) AND EXPLANATIONS AS TO SOURCES OF THESE CASH DEPOSIT TO THE TUNE OF RS. 15 LACS WAS ACCEPTED BY LD. CIT(A) AS BEING FROM COAL BUSINESS AND THE REVENUE IS NOT IN APPEAL AGAINST THE APPELLATE ORDER PASSED BY LEARNED CIT(A) GRANTING RELIEF TO THE ASSESSEE TO THE TUNE OF RS. 15 LACS. THE ASSESSEE HAS CLAIMED BEFORE LEARNED CIT(A) THAT CASH DEPOSIT OF RS. 5,37,000/- IN AXIS BANK WAS FROM THE BUSINESS OF TRUCK PLYING BUT NO DETAILS WERE FILED. THE ASSESSEE DID NOT DECLARED INCOME FROM TRUCK PLYING IN THE RETURN OF INCOME FILED WITH THE REVENUE. THE AO ASSESSED INCOME TO THE TUNE OF RS. 1,61,000/- FROM TRUCK PLYING IN THE HANDS OF THE ASSESSEE UNDER PRESUMPTIVE TAX REGIME BY INVOKING PROVISIONS OF SECTION 44AE OF THE 1961 ACT. THE BENCH DIRECTED LEARNED COUNSEL FOR THE ASSESSEE TO FILE DETAILS OF INCOME FROM TRUCK PLYING AND CASH BOOK TO JUSTIFY THAT CASH DEPOSIT OF RS. 5,37,000/- IN AXIS BANK WAS FROM BUSINESS OF TRUCK PLYING. THE ASSESSEE HAS FILED COPY OF CASH BOOK BEFORE THE TRIBUNAL FROM 29.08.2008 TO 18.12.2008 OF M/S PAWAN TRADERS. THE COMPLETE CASH BOOK IS NOT FILED AND IT CARRIES MAINLY CASH RECEIPT FROM COAL BUSINESS. IN ANY CASE , THE CASH BOOK NOW FILED BEFORE THE TRIBUNAL NEED VERIFICATION BY THE AUTHORITIES BELOW AND WE ARE REMITTING THE MATTER BACK TO THE FILE OF THE AO FOR FRESH DETERMINATION OF THE ISSUE AS TO THE VERIFICATION OF BONAFIDE OF EXPLANATION OF THE ASSESSEE WITH RESPECT TO SOURCES OF CASH DEPOSIT OF RS. 5,37,000/- IN AXIS BANK CLAIMED TO BE FROM BUSINESS OF TRUCK PLYING .THE ASSESSEE IS DIRECTED TO PRODUCE ALL RELEVANT EVIDENCES OF RECEIPTS , EXPENSES ETC. FROM THE TRUCK PLYING BUSINESS TO SUPPORT AND JUSTIFY ITS STAND . THE AO IS DIRECTED TO ADMIT ALL EVIDENCES FILED BY ITA NO.99/ALLD/2014 ASSESSMENT YEAR: 2009-10 YOGESH KUMAR PANDEY 6 ASSESSEE IN ITS SUPPORT AND THE SAME BE ADJUDICATED DENOVO ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE AO SHALL PROVIDE PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW, IN DENOVO PROCEEDINGS AS DIRECTED BY US . THIS GROUND OF APPEAL BEARING NUMBER 4 FILED IN MEMO OF APPEAL FILED WITH TRIBUNAL IS ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE WITH TRIBUNAL IN ITA NO. 99/ALLD./2014 FOR AY: 2009-10 IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 26/11/2020 AT ALLAHABAD. SD/- SD/- [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26/11/2020 BISWAJIT COPY FORWARDED TO: 1. APPELLANT YOGESH KUMAR PANDEY 2. RESPONDENT - ITO, RANGE-III(4), MIRZAPUR 3. CIT(A) - 4. CIT 5. DR - BY ORDER ASSISTANT REGISTRAR