Sankalp Samal, Bhopal V. The ACIT, 3(1), Bhopal

ITSSA 367/IND/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9187 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 13-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Additional evidence; Initiation of penalty proceedings
• Section: 153A; 132

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS) A NOS. 367 TO 370/IND/2012 A.YS. 2003-04, 2004-05, 2006-07 & 2008-09 SANKALP SAMAL BHOPAL PAN AHBPS 5991C :: APPELLANT VS ACIT 3(1), BHOPAL :: RESPONDENT DEPARTMENT BY SHRI V.K. KARAN ASSESSEE BY SHRI SUMIT NEMA DATE OF HEARING 24.05.2013 DATE OF PRONOUNCEMENT 24 .05.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGA INST THE CONSOLIDATED ORDER DATED 17.5.2012 OF THE LEARNED C IT(A)-II, BHOPAL 2 FOR THE ABOVE A.YS. ON THE GROUNDS, WHICH ARE SUMMA RISED AS UNDER: 1. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE DECISION OF LD. CIT(A)-II IS CONTRARY TO LAW, MATERIALLY INCORRECT AND UNSUSTAINABLE IN LAW AS WELL AS FACTS AND THAT THE FINDING RECORDED THEREIN ARE CONTRARY TO EVIDENCE AND ARE INCORRECT. 2. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-II ERRED IN REJECTING ADMISSION OF ADDITIONAL EVIDENCES. 3. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-II ERRED IN CONFIRMING THE ADDITIONS OF RS.1,24,600 (AY 2003-04), RS.35,600 (AY 2004-05), RS.2,96,000 (AY 2006-07) AND RS.1,19,000 (AY 2008-09), RESPECTIVELY, ON ACCOUNT OF UNEXPLAINED CASH CREDITS. 4. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-II ERRED IN CONFIRMING THE LEVY OF INTEREST U/S 234A, 234B, 234C. 5. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-II ERRED IN CONFIRMING THE INITIATION OF PENALTY PROCEEDINGS U/S 271AAA. 6. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, A FAIR, PROPER AND MEANINGFUL OPPORTUNITY HAS NOT BEEN ALLOWED TO THE ASSESSEE TO PUT UP THE DEFENCE. 3 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I SUMIT NEMA, LEARNED COUNSEL FOR THE ASSESSEE AND SHRI SUM IT NEMA, LD. CIT/DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSE SSEE IS THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN REJECTING TH E ADMISSION OF ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WHICH GOE S TO THE ROOT OF THE ISSUES AND THUS, CONFIRMING THE ADDITIONS IN TH E RESPECTIVE A.YS. IS CONTRARY TO THE FACTS WHICH REQUIRE TO BE DELETED. IT WAS ALSO PLEADED THAT FAIR AND REASONABLE OPPORTUNITY WAS NO T PROVIDED TO THE ASSESSEE. ON THE OTHER HAND, MR. KARAN, THE LD. CIT/DR CONTENDED THAT THE ASSESSEE WAS NON-COOPERATIVE DUR ING ASSESSMENT STAGE ALSO AND THE NECESSARY DETAILS WER E NOT FILED BY THE ASSESSEE. IT WAS ALSO PLEADED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER SO THAT T HE ISSUES MAY BE EXAMINED TO THE SATISFACTION OF THE ASSESSING OFFIC ER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT A SEARCH U/S 132 OF THE ACT WAS CARRIED OUT AT THE RESIDENTI AL PREMISES OF SHRI SANKALP S/O SHRI U.K. SAMAL ON 30 TH MAY 2008. NOTICE U/S 153A OF THE ACT DATED 31.8.2010 WAS ISSUED TO THE A SSESSEE TO FILE 4 RETURNS FOR A.YS. 2003-04 TO 2008-09, IN RESPONSE T O THE AFORESAID NOTICE, THE ASSESSEE FILED THE RETURNS AS HAS BEEN SUMMARISED AT PAGE 1 OF THE ASSESSMENT ORDER. THE ASSESSMENTS WER E FRAMED ON THE AMOUNTS AS HAS BEEN MENTIONED IN THE LAST PAGES OF THE ASSESSMENT ORDER. ON APPEAL, THE LD. CIT(A) PASSED A CONSOLIDATED ORDER DATED 7.5.2012 BROADLY CONCLUDED THAT THE EXP LANATION SUBMITTED BEFORE HIM WAS NOT SUBMITTED BEFORE THE A SSESSING OFFICER. THE ASSESSEE ALSO FILED ADDITIONAL EVIDENC ES IN SUPPORT OF HIS SUBMISSIONS, WHICH WERE ALSO NOT FILED BEFORE T HE ASSESSING OFFICER, THUS, THE ADDITIONAL EVIDENCE WAS NOT ADMI TTED AND THE ORDER WAS PASSED WITHOUT CONSIDERING THE ADDITIONAL EVIDENCES, SO FILED. WE, THEREFORE, KEEPING IN VIEW, THE CONCLUSI ON DRAWN IN THE IMPUGNED ORDER, FINDING RECORDED IN THE ASSESSMENT ORDERS, ASSERTION MADE BY THE LD. RESPECTIVE COUNSEL, PRINC IPLE OF NATURAL JUSTICE AND ALSO NO PREJUDICE IS CAUSED TO EITHER S IDE, WITHOUT MAKING MUCH DELIBERATION, REMAND THESE APPEALS TO T HE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTE D TO EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO 5 THE ASSESSEE WITH FURTHER LIBERTY TO FURNISH EVIDEN CE, IF ANY, IN SUPPORT OF HIS CLAIM. FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED FO R STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESE NCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24.5.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 27 .5.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!