SHRI RITESH JAIN, Bhopal V. THE DCIT 1(2), Bhopal

ITSSA 158/IND/2016

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3274 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 12-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Keywords: Additional evidence
• Section: 143(3); 153A

Judgement Text

RITESH JAIN/ I.T.A. (SS).NO.158 TO 161/IND/2016/A.Y .:04-05 TO 07-08 PAGE 1 OF 5 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER RITESH JAIN, 32, CHANAKYA PURI, CHUNA BHATTI, KOLAR ROAD, BHOPAL, M.P.-462016 V. DCIT- 1(2) / APPELLANT / RESPONDENT . . ./ PAN:AGBPJ8249B / APPELLANT BY RITESH JAIN (AR) / RESPONDENT BY SHRI LAL CHAND (DR) / DATE OF HEARING 02.05.2017 / DATE OF PRONOUNCEMENT 04.05.2017 / O R D E R PER C.M.GARG, JUDICIAL MEMBER: 1. THE ABOVE CAPTIONED APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS)-II, BHOPAL ALL DATED 12.4.2016 PASSED FOR ASSESSMENT YE AR 2004-05 TO 2007-08 WHEREIN THE CIT(A) HAS PARTLY UPHELD THE ADDITION MADE BY THE AO U/S 153A READ WITH SECTION 143(3) O F THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT). . . ./ I.T.(SS).A. NOS.158 TO 161/IND/2016 &(( / ASSESSMENT YEARS: 2004-05 TO 2007-08 RITESH JAIN/ I.T.A. (SS).NO.158 TO 161/IND/2016/A.Y .:04-05 TO 07-08 PAGE 2 OF 5 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND CAREFULLY PERUSED THE RELEVANT MATTER PLACED ON THE RECORD OF THE TRIBUNAL. HE SUBMITTED THAT THE ASSESSEE FILED APPL ICATION FOR SUBMISSION OF ADDITION EVIDENCE IN ALL FOUR YEARS A LONG WITH AFFIDAVIT OF DINESH JAIN, PAWAN JAIN AND VANUPRAKAS H BHARWAVA BUT CIT(A) WITHOUT CALLING ANY COMMENTS OR REMAND R EPORT FROM THE AO AND PROPERLY ADJUDICATING THE SAME PROCEEDED TO DECIDE THE APPEAL AND ADDITIONAL EVIDENCE FILED BY THE ASS ESSE WAS NOT PROPERLY ADMITTED AND CONSIDERED BY THE CIT(A) WHIL E PARTLY UPHOLDING THE ADDITIONS. 3. REPLYING TO THE ABOVE, THE LD. (DR) STRONGLY SUPPOR TED THE ACTION OF THE AO AS WELL AS CIT(A) AND SUBMITTED TH AT THE ADDITIONS PARTLY UPHELD BY THE CIT(A) ARE JUSTIFIED AND SUSTAINABLE. THEREFORE, THE SAME CANNOT BE DISTURBE D BY TAKING BASELESS ARGUMENT OF THE ASSESSEE REGARDING APPLICA TION FOR ADDITIONAL EVIDENCE FILED BEFORE THE CIT(A). HOWEVE R, THE LD. SENIOR DR IN ALL FAIRNESS SUBMITTED THAT IF IT IS F OUND JUST, PROPER AND NECESSARY TO RESTORE THE ISSUE THEN THE SAME MA Y BE RESTORED TO THE FILE OF CIT(A) OR THE AO FOR AFRESH ADJUDICA TION AND DEPARTMENT HAS NO SERIOUS OBJECTION TO THAT. RITESH JAIN/ I.T.A. (SS).NO.158 TO 161/IND/2016/A.Y .:04-05 TO 07-08 PAGE 3 OF 5 4. PLACING REJOINDER TO THE ABOVE SUBMISSIONS, THE ASS ESSEE VEHEMENTLY SUBMITTED THAT IF ADDITIONAL EVIDENCE FI LED BY THE ASSESSEE IS PROPERLY CONSIDERED IN THE LIGHT OF TOT ALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE SPECIALLY ON THE ISSU E OF ADDITIONS UPHELD BY THE ASSESSEE THEN ALTERNATIVELY THE CASE MAY BE RESTORED TO THE FILE OF THE AO SO THAT THE SAME MAY BE EXAMINED AND VERIFIED PROPERLY. 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSIONS , WE ARE OF THE VIEW THAT THE CIT(A) HAS UPHELD TO ADDITIONS OF RS. 36,000/- & 25,000/- FOR ASSESSMENT YEAR 2004-05, TW O ADDITIONS OF RS. 25,800/- AND RS. 1,000/- FOR ASSESSMENT YEAR 2005-06, ADDITION OF RS. 37,000/- AND 36,000/- IN ASSESSMENT YEAR 2006- 07 AND ADDITION OF RS. 3,40,000/- (RS. 84,000+1,20,000+78,000+58,500) HAS BEEN UPHELD IN ASSESSMENT YEAR 2007-08. THE MAIN CONTENTION OF THE ASSESSEE REGARDING ALL ADDITIONS IS THAT THE CIT(A) HAS ERRE D IN CONFIRMING THE IMPUGNED ADDITIONS MADE BY THE AO ON ACCOUNT OF THE CASH DEPOSIT MADE BY SMT. SAVITA JAIN, APPELLANTS MOTHE R, WITHOUT APPRECIATING THE FACTS AND EVIDENCE BROUGHT ON THE RECORD BY THE APPELLANT IN THE FORMS OF BORROWERS/LENDERS AND CAS H FLOW STATEMENT AND WITHOUT APPRECIATING THE FACT THAT TH E AO DID NOT RITESH JAIN/ I.T.A. (SS).NO.158 TO 161/IND/2016/A.Y .:04-05 TO 07-08 PAGE 4 OF 5 BRING ANY CORROBORATIVE EVIDENCE OF MATERIAL AGAINS T THE ASSESSEES EXPLANATION FILED ON THE RECORD. 6. UNDISPUTEDLY, THE ASSESSEE FILED APPLICATION FOR AD MISSION OF ADDITIONAL EVIDENCE AND AFFIDAVIT AND OTHER DOCUMEN TS WERE ALSO FILED BEFORE FIRST APPELLATE AUTHORITY AND THE CIT( A) PROCEEDED TO PASS FIRST APPELLATE ORDER AND PARTLY UPHOLDING THE ADDITION WITHOUT FOLLOWING PROCEDURE OF RULE 46A OF THE INCO ME-TAX RULES, 1962, AS NO REMAND REPORT OR COMMENTS OF THE AO HAS BEEN TAKEN AND THE SAME HAS NOT BEEN ADMITTED AND CONSID ERED RATHER IT HAS BEEN IGNORED WITHOUT ANY REASON. 7. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT TH E ISSUES IN ALL FOUR APPEALS REQUIRE LIMITED EXAMINATION AND VE RIFICATION AT THE END OF THE AO FOR LIMITED PURPOSE I.E. ONLY ON THE ADDITIONS UPHELD BY THE CIT(A). THEREFORE, ALL FOUR APPEALS A RE RESTORED TO THE FILE OF AO, TO AVOID MULTIPLICITY OF PROCEEDING S BEFORE TWO AUTHORITIES, WITH A DIRECTION THAT HE SHALL EXAMINE AND VERIFY THE AFFIDAVITS, DOCUMENTS, AND EXPLANATIONS OF THE ASSE SSEE ONLY ON THE ADDITIONS UPHELD BY THE CIT(A) AND FOR THIS LIM ITED PURPOSE CASES ARE BEING RESTORED TO HIS FILE. NEEDLESS TO S AY THAT THE AO SHALL PROVIDE DUE OPPORTUNITY TO THE ASSESSEE AND T HEREAFTER SHALL PASS APPROPRIATE ORDERS WITHIN THE LIMITS AS STATED HEREINABOVE, RITESH JAIN/ I.T.A. (SS).NO.158 TO 161/IND/2016/A.Y .:04-05 TO 07-08 PAGE 5 OF 5 WITHOUT BEING PREJUDICED FROM THE EARLIER ASSESSMEN T AND FIRST APPELLATE ORDER. IN THE RESULT, ALL FOUR APPEALS AR E ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AS INDICATED ABO VE FOR LIMITED PURPOSE ONLY. 8. IN THE RESULT, ALL FOUR APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 04.05.2017. SD/- SD/- (..) /(O.P.MEENA) (..) /(C.M. GARG) /ACCOUNTANT MEMBER /JUDICIAL MEMBER DATED : 04.05.2017. SB*