The ACIT, 3(1), V. Shri Avneet Singh,

ITSSA 54/IND/2008

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0442 (ITAT-INDORE)
• Duration Of Justice: 6 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-11-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-10-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 04-04-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Opportunity of being heard; Validity of assessment
• Section: 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE .. , , BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER SL. NO(S). IT(SS)A NO(S) / CO NO(S) ASSESSMENT YEAR(S) APPEAL(S) BY / CO BY APPELLANT VS. RESPONDENT APPELLANT (S) RESPONDENT(S) 1. 54/IND/2008 2003-04 ASSTT.CIT TAX 3(1) BHOPAL SHRI AVNEET SINGH 10, REHANA COLONY BHOPAL (M.P.) PAN : AVJPS 3018 G 2. 55/IND/2008 2004-05 REVENUE ASSESSEE 3. CO NO.38/IND/2008 (IN IT(SS)A NO.54/IND/2008) 2003-04 SHRI AVNEET SINGH,BHOPAL ASSTT.CIT TAX 3(1) BHOPAL 4. CO NO.39/IND/2008 (IN IT(SS)A NO.55/IND/2008) 2004-05 ASSESSEE REVENUE REVENUE BY : SHRI KESHAV SAXENA, CIT-DR ASSESSEE BY : S/SHRI MANJEET SACHDEVA & AVINASH GAUR, ADV. / / / / DATE OF HEARING 19/11/2014 !'#$ / DATE OF PRONOUNCEMENT 19/11/2014 %& / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE REVENUE AND THE ASSESSEE BOTH HAVE CHALLENGED THE ORDERS OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-II, BHOPAL (MP) [CIT(A) IN SHORT] BOTH IDENTICALLY DATED 02/01/20 08 BY WAY OF APPEALS AND CROSS OBJECTIONS RESPECTIVELY PERTAININ G TO ASSESSMENT YEARS (AYS) 2003-04 & 2004-05. SINCE BOTH THESE APPEALS AND CROSS OBJECTIONS PERTAIN TO THE SAME ASSESSEE AND HAVING SIMILAR ISSUE, THESE IT(SS)A NOS.54 & 55/IND/20089 (BY REVENUE) AND CO NOS.38 & 39/IND/2008 (BY ASSESSEE) ASST.CIT VS.SHRI AVNEET SINGH ASST.YEARS 2003-04 & 2004-05 RESPECTIVELY - 2 - WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WA Y OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE REVENUES APPEAL IN IT(SS )A NO.54/IND/2008 FOR AY 2003-04 AND ASSESSEES CROSS- OBJECTION NO.38/IND/2008 FOR AY 2003-04. 2.1. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN:- 1. DELETING THE ADDITION ON THE BASIS OF THE RELI ABILITY OF THE CASH FLOW STATEMENT PREPARED DULY AFTER THE ACTION U/S.132 AN D RELIANCE WERE PLACED OF MANY CASE LAWS. 2. DELETING THE ADDITION OF RS.8,43,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S.69. 3. DELETING THE ADDITION OF RS.33,18,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S.69. 4. DELETING THE ADDITION OF RS.6,00,850/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S.69 MADE FOR T HE PURCHASE OF LAND. 2.2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUN DS IN HIS CROSS- OBJECTION FOR AY 2003-04:- 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE ASSESSING OFFICER WAS BAD IN LAW. 2. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSUMPTION OF JURISDICTION BY ASSESSING OFFICER WAS INVALID AND B AD IN LAW. 3. THAT THE APPELLANT CRAVES YOUR LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL. ADDITIONAL GROUND OF COS FOR AYS 2003-04 & 2004-05 01. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) ERRED IN NOT ACCEPTING THE CONTENTION OF THE APPELLANT THAT THE VALIDITY OF THE ASSESSMENT UNDER SECTION 153C WAS CHALLENGE BY THE APPELLANT. 02. THAT GROUND RELATING THE VALIDITY OF THE ASSES SMENT UNDER SECTION 153C WAS TAKEN AT GROUND NO.1 & 2 OF THE CROSS OBJECTION AND THE SAME ARE AS UNDER- (I) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE ASSESSING OFFICER WAS BAD IN LAW. IT(SS)A NOS.54 & 55/IND/20089 (BY REVENUE) AND CO NOS.38 & 39/IND/2008 (BY ASSESSEE) ASST.CIT VS.SHRI AVNEET SINGH ASST.YEARS 2003-04 & 2004-05 RESPECTIVELY - 3 - (II) THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE ASSUMPTION OF JURISDICTION BY ASSESSING OFFICE R WAS INVALID AND BAD IN LAW. 03. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) AND ASSESSING OFFICER ERRED IN NOT ACCEPTING THE OBJECTION WITH R EGARD TO THE LEGAL GROUND RAISED BY THE ASSESSEE BEFORE THE LEARNED COMMISSIO NER OF INCOME-TAX (APPEALS) IS ENCLOSED AT PAGE NO.1 & 2 OF THE PAPER BOOK AND BEFORE THE LEARNED ASSESSING OFFICER AT PAGE NO.59 FORT THE AS SESSMENT YEAR 2003-94. 04. FOR THAT THE AFORESAID ARE THE GROUNDS TAKEN B Y THE APPELLANT REGARDING THE VALIDITY OF ASSESSMENT THAT THE APPEL LANT FURTHER WISHES TO RAISE AN ADDITION GROUND. (I) THAT THE ASSUMPTION OF JURISDICTION U/S.153 C WAS UNLAWFUL. 3. AT THE OUTSET, IT IS SUBMITTED BY THE LD.CIT-DR THAT A REQUEST VIDE LETTER DATED 22/02/2011 WAS MADE, WHEREIN IT WAS ST ATED THAT THE ISSUE REGARDING JURISDICTION U/S.153C OF THE I.T.ACT,1961 BE REMANDED BACK TO LOWER AUTHORITIES AS HELD IN THE CASE OF CIT VS. TOLLARAM HASSOMAL (MP) REPORTED AT (2008) 298 ITR 22(MP), SINCE THE A SSESSEE HAS OBJECTED TO THE ASSUMPTION OF JURISDICTION BY THE A SSESSING OFFICER U/S.153C OF THE ACT. IT IS ALSO SUBMITTED BY THE LD.CIT-DR THAT THE ISSUE OF JURISDICTION IS NEITHER DEALT WITH BY THE ASSESSING OFFICER NOR BY THE LD.CIT(A) IN RIGHT PERSPECTIVE. MOREOVER, T HE ISSUE OF JURISDICTION IS RAISED FIRST TIME IN THE CROSS OBJE CTION, SAME NEED TO BE ADJUDICATED. 3.1. ON THE CONTRARY, THE LD.COUNSEL FOR THE ASSE SSEE SUBMITTED THAT BEFORE THE LD.CIT(A) GROUND NOS.1,2,3 & 4 WERE RAI SED IN RESPECT OF THE ORDER BEING BAD IN LAW, NO PROPER OPPORTUNITY O F BEING HEARD WAS GIVEN AND DESPITE SPECIFIC REQUEST, THE CONCERNED P ERSONS WERE NOT CALLED U/S.131 OF THE ACT AND ALSO THE WRONG DETERM INATION OF THE IT(SS)A NOS.54 & 55/IND/20089 (BY REVENUE) AND CO NOS.38 & 39/IND/2008 (BY ASSESSEE) ASST.CIT VS.SHRI AVNEET SINGH ASST.YEARS 2003-04 & 2004-05 RESPECTIVELY - 4 - RETURNED INCOME AT RS.48,26,850/-. HE SUBMITTED TH AT THESE GROUNDS HAVE BEEN REJECTED BY THE LD.CIT(A) WITHOUT ADJUDIC ATING THE SAME. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) HAD REJECTED THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF THE LEARNED ASSESSING OFFICE R IS BAD IN LAW AND ON THE FACTS OF THE CASE. 2. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE FOR PUTTING U P DEFENSE IN HIS CASE. 3. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, DESPITE SPECIFIC REQUEST, THE CONCERNED PERSONS WERE NOT CALLED U/S. 131 AND, THEREFORE, NO ADVERSE VIEW CAN BE TAKEN AGAINST THE ASSESSEE. 4. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.AO WAS WRONG IN DETERMINING INCOME AT RS.48,26,850/- AS AG AINST RETURNED INCOME OF RS.65,000/-. 4.1. THE LD.CIT(A) HAS NOT DECIDED THE ABOVE GROUND S BY WAY OF A SPEAKING ORDER, WHICH IS NOT JUSTIFIED. UNDER THESE FACTS AND COUPLED WITH REQUEST MADE BY THE REVENUE ITSELF AND NOT OBJECTED BY THE LD.COUNSEL FOR THE ASSESSEE, WE HEREBY RESTORE ALL THESE GROUNDS OF REVENUES APPEAL AS WELL AS GROUNDS/ADDITIONAL GROU NDS RAISED BY THE ASSESSEE IN HIS CROSS-OBJECTION BACK TO THE FILE O F LD.CIT(A) FOR DECISION AFRESH. NEEDLESS TO SAY THAT THE LD.CIT(A ) WOULD AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. THUS, REVENUES APPEAL AS WELL AS ASSESSEES CROSS OBJECT ION BOTH ARE ALLOWED FOR STATISTICAL PURPOSES. IT(SS)A NOS.54 & 55/IND/20089 (BY REVENUE) AND CO NOS.38 & 39/IND/2008 (BY ASSESSEE) ASST.CIT VS.SHRI AVNEET SINGH ASST.YEARS 2003-04 & 2004-05 RESPECTIVELY - 5 - 5. AS A RESULT, REVENUES APPEAL FOR AY 2003 -04 AND ASSESSEES CROSS OBJECTION FOR AY 2003-04 ARE ALLOWED FOR STAT ISTICAL PURPOSES. 6. NOW, WE TAKE UP THE REVENUES APPEAL IN IT(SS )A NO.55/IND/2008 AND ASSESSEES CROSS OBJECTION NO.39/IND/2008 FOR A Y 2004-05. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE RESPECTIV E PARTIES. 6.1. IN REVENUES APPEAL, THE FOLLOWING GROUNDS HAVE BEEN RAISED:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN :- 1. DELETING THE ADDITION OF RS.8,50,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S.69. 2. DELETING THE ADITION OF RS.65,703/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED DEPOSIT IN SB ACCOUNT NO.012129 IN S BI BAIRAGARH. 3. DELETING THE ADDITION OF RS.70,000/- MADE BY TH E ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT WITH M/S.JANTA SALES & SE RVICE BAIRAGAR. 4. DELETING THE ADDITION OF RS.65,000/- MADE BYT E H ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT WITH M/S.JANTA SALES & SE RVICES INVESTMENT U/S.69 MADE FOR THE PURCHASE OF LAND. 5. DELEING THE ADDITION OF RS.1,65,000/- MADE BY T HE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT WITH M/S.JANTA TR ANSPORT BAIRAGARH. 6. DELETING THE ADDITION OF RS.29,09,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S.69. 6.2. IN ASSESSEES CROSS OBJECTION, THE FOLLOWING G ROUNDS HAVE BEEN RAISED:- 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE ASSESSING OFFICER WAS BAD IN LAW. 2. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSUMPTION OF JURISDICTION BY ASSESSING OFFICER WAS INVALID AND B AD IN LAW. 3. THAT THE APPELLANT CRAVES YOUR LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL. (ADDITIONAL GROUND ALREADY REPRODUCED HEREINABOVE) 6.3. IN THIS YEAR, THE ISSUE IS WITH REGARD TO ASSU MPTION OF JURISDICTION BY THE ASSESSING OFFICER U/S.153A OF T HE I.T. ACT, 1961. IT(SS)A NOS.54 & 55/IND/20089 (BY REVENUE) AND CO NOS.38 & 39/IND/2008 (BY ASSESSEE) ASST.CIT VS.SHRI AVNEET SINGH ASST.YEARS 2003-04 & 2004-05 RESPECTIVELY - 6 - BOTH THE PARTIES HAVE ADVANCED THEIR ARGUMENTS AS W ERE MADE IN THE REVENUES APPEAL FOR AY 2003-04. SINCE THE GROUNDS AND FACTS ARE IDENTICAL TO THE GROUNDS AND FACTS OF THE REVENUES APPEAL FOR AY 2003-04, THEREFORE TAKING A CONSISTENT VIEW, FOR T HIS YEAR ALSO, WE RESTORE THE ISSUE BACK TO THE FILE OF LD.CIT(A) FOR DECISION AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. THUS, APPEAL OF THE REVENUE FOR AY 2004-05 IS ALLOW ED FOR STATISTICAL PURPOSES. ACCORDINGLY, ASSESSEES CROSS OBJECTION I S ALSO RESTORED BACK TO THE FILE OF LD.CIT(A). AS A RESULT, REVENUES A PPEAL FOR AY 2004- 05 AS WELL AS ASSESSEES CROSS OBJECTION FOR AY 200 4-05 BOTH ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE COMBINED RESULT, REVENUES APPEALS AND ASSE SSEES CROSS OBJECTIONS FOR AYS 2003-04 AND 2004-05 ARE AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ( ) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDIC IAL MEMBER INDORE; DATED 19 /11/2014 ).., .../ T.C. NAIR, SR. PS %& *+ ,- ./,# %& *+ ,- ./,# %& *+ ,- ./,# %& *+ ,- ./,#/ COPY OF THE ORDER FORWARDED TO : 1. .- 01 / THE APPELLANT 2. *201 / THE RESPONDENT. 3. 3 45 % % 6 / CONCERNED CIT 4. % % 6 ( .- ) / THE CIT(A), BHOPAL 5. ,7 *45 , % .- .45$ BUNKSJ BUNKSJ BUNKSJ BUNKSJ / DR, ITAT, INDORE 6. 789 : / GUARD FILE. %& %& %& %& / BY ORDER, 2,- * //TRUE COPY// ; ; ; ; -< -< -< -< ( ASSTT.REGISTRAR) ITAT, INDORE