The ACIT, 2(1), Bhopal V. Shri Sunil Kapoor, Bhopal

ITSSA 53/IND/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8481 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-09-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 13-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KESHAV SAXENA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 142(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO. 53/IND/2012 BLOCK PERIOD 1.4.1988 TO 14.5.1998 ASSISTANT COMMISSIONER OF INCOME TAX 2(1), BHOPAL :: APPELLANT VS SHRI SUNIL KAPOOR BHOPAL GIR NO. 18-129-PY-2868 :: RESPONDENT APPELLANT BY SHRI KESHAV SAXENA RESPONDENT BY SHRI SUMIT NEMA DATE OF HEARING 29.08.2012 DATE OF PRONOUNCEMENT 04.09.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 15 TH NOVEMBER, 2011 PASSED BY THE LEARNED FIRST APPELLAT E AUTHORITY, BHOPAL. THE FIRST GROUND RAISED IS THAT THE LEARNED CIT(A) ERRED IN 2 DELETING THE ADDITION OF RS. 8,50,000/- MADE U/S 68 OF THE ACT AND MORE SPECIFICALLY THE ASSESSING OFFICER WAS NOT PROVIDED SUFFICIENT OPPORTUNITY AND THE CREDIT WORTHINESS OF THE CREDITORS ALONG WITH GENUINENESS OF THE TRANSACTIONS WAS NOT ESTABLISHED. 2. DURING HEARING, WE HAVE HEARD THE LEARNED RESPEC TIVE COUNSEL AND CONSIDERED THE ARGUMENTS ADVANCED BY TH EM. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS IN SU PPORT TO THE ASSESSMENT ORDER. THE LEARNED CIT DR DEFENDED THE A SSESSMENT ORDER BY SUBMITTING THAT THE LEARNED CIT(A) ARRIVED AT A CONCLUSION WITHOUT CONSIDERING THE REMAND REPORT FR OM THE ASSESSING OFFICER, THEREFORE, IT WAS PLEADED THAT T HE MATTER MAY BE REMANDED BACK. ON THE OTHER HAND, THE LEARNED C OUNSEL FOR THE ASSESSEE DEFENDED THE IMPUGNED ORDER. 2.1 WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY TH E LEARNED RESPECTIVE COUNSEL. THE FACTS, IN BRIEF, ARE THAT A SEARCH OPERATION WAS CARRIED OUT AT THE HOUSE OF THE FATHER OF THE A SSESSEE. NOTICES U/S 143(2) AND 142(1) WERE ISSUED TO THE AS SESSEE ALONG WITH QUESTIONNAIRE ON 10.4.1999 WHICH WERE SERVED O N THE ASSESSEE. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT THE AMOUNT OF RS.10,96,000/- OBTAINED AS LOAN FROM VARI OUS PARTIES WAS NOT SHOWN IN THE ORIGINAL BALANCE SHEET AND, TH EREFORE, THE 3 SAME IS UNEXPLAINED. HOWEVER, THE LEARNED CIT(A) HE LD THAT THE LOAN TAKEN FROM 15 PERSONS OUT OF THE TOTAL LOAN WA S NOT EXPLAINED. HE CONFIRMED THE ADDITION OF RS. 2,46,00 0/- (TAKEN FROM 15 PERSONS) AND DELETED THE REMAINING ADDITION OF RS. 8,15,000/-. THE MATTER TRAVELLED TO THE TRIBUNAL. IT WAS FOUND THAT THE FIRST APPELLATE ORDER WAS PASSED ON CONSID ERATION OF ADDITIONAL EVIDENCE SUBMITTED AT THE FIRST APPELLAT E STAGE WITHOUT PROVIDING ADEQUATE OPPORTUNITIES TO THE ASSESSING O FFICER AS REQUIRED UNDER RULE 46A OF THE RULES AND ALSO THE R EASON FOR AFFIRMING THE ADDITION OF RS.2,46,000/-, THEREFORE, THE MATTER WAS REMANDED BACK TO THE FILE OF THE LEARNED CIT(A). P URSUANT TO THE ORDER OF THE TRIBUNAL, THE RELEVANT EVIDENCES ALONG WITH WRITTEN SUBMISSIONS OF THE ASSESSEE WERE REMANDED BACK TO T HE FILE OF THE ASSESSING OFFICER FOR HIS OBJECTIONS, IF ANY, FOR A DMITTING THE ADDITIONAL EVIDENCE. NO REPLY WAS RECEIVED UP TO TH E STIPULATED TIME. THE LEARNED CIT(A) WAS OF THE VIEW THAT IN TH E ABSENCE OF ANY REPLY FROM THE ASSESSING OFFICER, IT IS PRESUME D THAT THE ASSESSING OFFICER HAS NO OBJECTION IN ADMITTING THE ADDITIONAL EVIDENCE. IN VIEW OF THESE FACTS, THE ADDITION OF R S.2,46,000/- WAS AFFIRMED AND THE BALANCE ADDITION OF RS.8,50,000/- WAS DELETED. IF THE TOTALITY OF FACTS IS ANALYSED, WE FIND THAT EVEN AFTER REMAND 4 FROM THE TRIBUNAL, NO INDEPENDENT FINDING HAS BEEN MENTIONED IN THE IMPUGNED ORDER AND MERELY THE EARLIER STAND OF THE LEARNED CIT(A) WAS AFFIRMED. IN VIEW OF THESE FACTS, WE AGA IN REMAND THIS ISSUE TO THE FILE OF THE LEARNED CIT(A) FOR FRESH A DJUDICATION IN ACCORDANCE WITH LAW AFTER CONSIDERING THE REMAND RE PORT FROM THE ASSESSING OFFICER. NEEDLESS TO MENTION HERE THAT D UE OPPORTUNITY OF BEING HEARD WITH LIBERTY TO FURNISH EVIDENCE, IF ANY, BE PROVIDED TO THE ASSESSEE AS WELL AS THE ASSESSING OFFICER. T HEREFORE, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 3. THE NEXT GROUND PERTAINS TO DELETING THE ADDITIO N OF RS.1,08,776/- MADE ON ACCOUNT OF INVESTMENT MADE IN CONSTRUCTION OF HOUSE WHEN THE SAID ADDITION WAS IN FACT NOT MADE IN THE HANDS OF FATHER OF THE ASSESSEE. 3.1 DURING HEARING, THE LEARNED CIT DR DEFENDED THE ASSESSMENT ORDER BY SUBMITTING THAT THE LEARNED CIT (A) ARRIVED AT A CONCLUSION WITHOUT CONSIDERING THE REMAND REPORT FROM THE ASSESSING OFFICER, THEREFORE, IT WAS PLEADED THAT T HE MATTER MAY BE REMANDED BACK. HOWEVER, THE LEARNED COUNSEL FOR THE ASSESSEE DEFENDED THE IMPUGNED ORDER. 5 3.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RELEVANT OBSERVATIONS OF THE LEARNED CIT(A) :- 4.1 THE ASSESSEES FATHER HAD CONSTRUCTED A HOUSE IN SAKET NAGAR, BHOPAL. DURING THE COURSE OF SEARCH IN FATHERS HOUSE, A DIARY CONTAINING THE DETAILS OF CONSTRUCTION WAS SEIZED. IN THIS DIARY ON PAGES 159 AND 161 IN ANNEXURE B-4 SOME CONSTRUCTION DETAILS WERE MENTIONED IN THE NAME OF SUNIL A/C. THE AMOUNT OF THIS PAGE WAS RS. 1,08,776/- WHICH WAS ADDED BY THE A.O. TREATING THE SAME AS INVESTMENT BY DR. SUNIL KAPOOR, THE ASSESSEE. IT WAS EXPLAINED TO THE CIT(A) THAT SUNIL A/C DOES NOT REFER TO DR. SUNIL KAPOOR BECAUSE SUNIL IS THE NAME OF THE CONTRACTOR WHO HAS INCURRED THE EXPENSES ON BEHALF OF SHRI R.N. KAPOOR, THE ASSESSEES FATHER. MY PREDECESSOR ACCEPTED THIS EXPLANATION AND DELETED THE ADDITION OF RS. 1,08,776/-. IN THE PRESENT APPELLATE PROCEEDINGS THE A.O. HAD NOT SUBMITTED ANY OBJECTION IN RESPONSE TO NOTICE U/RULE 46A AS MENTIONED ABOVE. I HAVE EXAMINED THE ISSUE. THERE IS NO REASON TO DISTURB THE FINDINGS OF MY PREDECESSOR ON THIS ISSUE ALSO HENCE THE ADDITION OF RS. 10,8776/- IS DELETED.' IF THE TOTALITY OF FACTS IS ANALYSED, WE FIND THAT THE SUBMISSIONS OF THE ASSESSEE AND THE REMAND REPORT WAS NOT CONSIDER ED BY THE LEARNED CIT(A), THEREFORE, IN THE INTEREST OF JUSTI CE, IT REQUIRES FRESH ADJUDICATION. NEEDLESS TO MENTION HERE THAT THE LEARNED CIT(A) IS EXPECTED TO GIVE ITS INDEPENDENT FINDING AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND REM AND REPORT 6 FROM THE ASSESSING OFFICER SO THAT NO PREJUDICE IS CAUSED TO EITHER SIDE. THE ASSESSING OFFICER AS WELL AS THE ASSESSEE MAY BE PROVIDED SUFFICIENT OPPORTUNITY OF BEING HEARD WIT H FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIAT E THEIR RESPECTIVE CLAIM, THEREFORE, THIS GROUND IS ALSO REMANDED BACK TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION, CONSEQU ENTLY, ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 29 TH AUGUST, 2012. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 4 TH SEPTEMBER, 2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-294 7