Mr. Ravi Khanna (HUF) C/o M/s D.V. Puri & Co, Amritsar. V. The Income-tax Officer, Abohar

MA 14/ASR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3961 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 1 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-02-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 18-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SHARDA
• Keywords: Principle of natural justice
• Section: 131; 69; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NO. 14(ASR)/2015 (ARISING OUT OF ITA NO.669(ASR)/2013) ASSESSMENT YEAR:2003-04 PAN: AAIHR6579 SH. RAVI KHANNA (HUF) VS. INCOME TAX OFFICER, ABOHAR. WARD-II(3), ABOHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. ANIL PURI, ADVOCATE RESPONDENT BY: SH. R.K.SHARDA, DR DATE OF HEARING: 26/02/2016 DATE OF PRONOUNCEMENT: /02/2016 ORDER PER A.D. JAIN,JM: THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE ARI SES OUT OF THE ORDER OF THE TRIBUNAL DATED 26.11.2014, PASSED IN I TA NO.669(ASR)/2013, FOR THE ASSESSMENT YEAR 2003-04. THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE TRIBUNAL VIDE THE AFORESAID ORDER. 2. IN THE PRESENT MISC. APPLICATION, THE ASSESSEE H AS CONTENDED AS FOLLOWS: THAT THE HON'BLE BENCH, DISMISSED THE CAPTIONED APP EAL WHILE HOLDING: - ON PERUSAL OF THE STATEMENT DATED 19.11.2007 AND I N THE ABSENCE OF ANY EVIDENCE ON RECORD THAT MR. MUMR AJ COULD HAVE SO MUCH OF CASH AVAILABLE FOR PAYMENT TO THE MA NO.14(ASR)/2015 2 ASSESSEE. THE AFFIDAVIT DATED 18.11.2004 AND CERTIF ICATE OF NUMBERDAR DOES NOT PROVE THE CAPACITY OF MR. MUM RAJ TO GIVE MONEY TO THE ASSESSEE.' THE HONBLE BENCH WHILE ARRIVING AT THE ABOVE FINDI NG, OMITTED TO LOOK INTO THE BELOW NOTED EVIDENCES PLACED ON RE CORD: - 1. THAT THE ENTIRE AMOUNT OF RS.2.75,000 WAS NOT P AID IN CASH ON ONE DAY BUT IN INSTALLMENTS DETAILED BELOW: - JULY, 2002 50,000 SEPTEMBER, 2002 75,000 OCTOBER, 2002 50,000 MARCH. 2003 1,00,000 TOTAL AMOUNT 2,75,000 2. THE ABOVE FACTS HAS BEEN ADMITTED BY MR. MUM RAJ IN HIS STATEMENT RECORDED UNDER SECTION 131 ON 11.10.20105 BY THE ASSESSING OFFICER, COPY AT PAGE NOS. 20-23 OF THE P APER BOOK, WHEREIN HE HAS CATEGORICALLY ADMITTED AND STATED ON OATH AS UNDER:- I USED TO MAKE PAYMENT OF THEKA IN INSTALMENTS THE PAYMENTS WERE MADE OUT OF SALE PROCEEDS OF AGRICULTURAL PRODUCE OF MY OWN AS WELL AS OUT OF LAND TAKEN ON THEKA. SOMETIMES PAYMENT IS BEING MADE IN CASH AND SOMETIME BY DEMAND DRAFTS AFTER GETTING THE CASH AMOUNT FROM THE ARHTIA TO WHOM I SOLD MY AGRICULTURAL PRODUCE. 3. THE HONBLE-BENCH DISMISSED THE APPEAL OF THE APPEL LANT RELYING ON THE STATEMENT DATED 19.11.2007 OF MR. MU MRAJ, OVERLOOKING THE FACT THAT THE SAID STATEMENT PRIMAM V4IAS-- FN5EVIDENTIARY VALUE, AS THE SAME WAS RECORDED AT T HE BACK OF THE APPELLANT, WITHOUT ANY OPPORTUNITY FOR CROSS EXAMINING MR. MUMRAJ, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. REFER C.I. T V/S DHARAM CHAND PREM CHAND L TD (2007) 295 ITR 105 ( DEL). 4. FURTHER, THE HONBLE BENCH OVERLOOKED TO CONSIDER T HE IMPORTANT PIECE OF EVIDENCE, PLACED ON RECORD BY MR . MUMRAJ, DURING HIS STATEMENT RECORDED ON 19.11.2007 , WHEREIN HE HIMSELF STATED THAT HE HAS BROUGHT THE D ETAIL OF ACCOUNT, MAINTAINED BY HIS SON. RELATING TO MR. RAV I KHANNA (APPELLANT), COPY ON PAGE NO. 15 AND ITS LEGIBLE CO PY WITH MA NO.14(ASR)/2015 3 ENGLISH TRANSLATION TILED AS PAGE NO. 15-A & 15-B A LONG WITH LETTER DATED 14.11.2014 FILED AS PER THE DIRECTIONS OF THE HONBLE BENCH, DURING THE HEARING ON 12.11.2014. 5. IN THE SAID ACCOUNT, THE PAYMENTS MADE IN CASH DURI NG THE PAST IS ESTABLISHED AND STANDS ADMITTED BY MR. MUMR AJ HIMSELF, A SELF CONTRADICTION IN THE STATEMENT OF M R. MUM RAJ RECORDED ON 19.1 1.2007, THE FACT HAS REMAINED OUT OF SIGHT OF THE HON'BLE BENCH, WHILE DISMISSING THE APPEAL. 6. THE APPELLANT RELIED UPON VARIOUS CASE LAWS, REFER PAGES NO. 57-58 OF THE PAPER BOOK, THOSE ALSO LOST SIGHT OF THE HONBLE BENCH, SPECIALLY THE JUDGMENT OF MADHYA PRA DESH HIGH COURT IN THE CASE OF C.I.T.V/S NEVENDRAM AHUJA : (2007) 290 ITR 453 (MP), WHEREIN IT HAS BEEN HELD A S UNDER: - IN REGARDS TO DEPOSITS FROM TENANTS, IT IS SUFFICIENT IF THE ASSESSEE PROVES THE IDENTITY OF THE TENANT AND THE GENUINENESS OF THE TRANSACTION UNDER WHICH THE DEPOSIT IS MADE. IT WILL NOT BE NECESSARY FOR THE ASSESSEE TO PROVE THE CAPACITY OF THE TENANT TO MAKE THE / DEPOSIT/ADVANCE. 7. THE APPELLANT VIDE ITS LETTER DATED 14.11.2014, SUBMITTED THAT DURING THE HEARING ON 12.11.2014. DISCUSSION A BOUT FACTS OF THE CASE GOT OBSTRUCTED, AND IN THE INTERE ST OF JUSTICE, PRAYED THAT THE APPEAL MAY KINDLY BE FIXED FOR A FRESH HEARING. THE SAID PRAYER, HAS ALSO REMAINED O UT OF SIGHT OF THE HON'BLE BENCH WHILE PASSING THE LEARNE D ORDER PRONOUNCED ON 26.11.2014. IN VIEW OF THE ABOVE, IT IS RESPECTFULLY PRAYED THA T THE MISTAKES POINTED OUT ABOVE BEING VERY MUCH APPARENT FROM THE RECORDS, THE ORDER PRONOUNCED ON 26.11.2014 MAY KIN DLY BE RECALLED AND A FRESH HEARING MAY KINDLY BE FIXED, I N ACCORDANCE WITH SECTION 254(2) OF THE INCOME TAX AC T 1961. 3. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT WHILE PASSING THE AFORESAID ORDER DATED 26.11.2014, THE TRIBUNAL RELI ED ON THE STATEMENT OF SH. MUMRAJ, OVER-LOOKING THE FACT THAT THE STATEMEN T HAS BEEN RECORDED MA NO.14(ASR)/2015 4 AT THE BACK OF THE ASSESSEE AND THE ASSESSEE HAS NO T BEEN AFFORDED ANY OPPORTUNITY FOR CROSS-EXAMINING SH. MUMRAJ, IN VIOL ATION OF PRINCIPLES OF NATURAL JUSTICE. REFERENCE IN THIS REGARD HAS BEEN MADE TO CIT VS. DHARAM PAL PREM CHAND LTD., 295 ITR 105 (DEL.). 4. ON THE OTHER HAND, THE LD. DR HAS PLACED STRONG RELIANCE ON THE TRIBUNAL ORDER. 5. IN THIS REGARD, AT PAGE 6, PARA-7 OF OUR ORDER D ATED 26.11.2014, IT HAS BEEN OBSERVED AS FOLLOWS: 7. WE HAVE HEARD THE ARRIVAL CONTENTIONS AND PERUS ED THE RECORDS OF THE CASE. ON PERUSAL OF THE ORDER OF ITAT, AMRIT SAR BENCH, IN ITA NO.461(ASR)/2006 DATED 11.05.2007 FOR THE A.Y. 2004 -05 AVAILABLE AT PAGE NOS.24 TO 32 AND RELEVANT PAGE AT NO.29 IT HAS BEENHELD THAT THE ADDITION, IF ANY, UNDER SECTION 69 COULD ONLY B E MADE IN THE A.Y. 2003-04 AND NOT IN THE A.Y. 2004-05. IT IS NOT UNDE R DISPUTE THAT THE ASSESSEE HAS NOT INCLUDED RS.1,00,00/- AS AGRICULTU RAL INCOME IN THE IMPUGNED YEAR. THE SAID ADDITIONS MADE IN THE A .Y. 2004-05 HAS SINCE BEEN DELETED BY ITAT (SUPRA) IS NOT A SUB JECT MATTER FOR THE A.Y. 2004-05. AS PER THE STATEMENT OF SHRI MAM RAJ, NO CASH PAYMENT HAS EVER BEEN MADE BY HIM TO THE ASSESSEE. ON PERUSAL OF THE STATEMENT DATED 19.11.2007 AND IN THE ABSENCE O F ANY EVIDENCE ON RECORD THAT SHRI MAM RAJ COULD HAVE SO MUCH OF C ASH AVAILABLE FOR PAYMENT TO THE ASSESSEE, THE AFFIDAVIT DATED 18 .11.2004 AND CERTIFICATE OF NUMBERDAR DOES NOT PROVE THE CAPACIT Y OF SHRI MAM RAJ TO GIVE MONEY TO THE ASSESSEE. THE ASSESSEE CANNOT BE SAID TO HAVE PROVED SOURCE OF MONEY FOUND TO HAVE BEEN RECEIVED BY IT. THE EXPLANATION OFFERED BY THE ASSESSEE, IN OUR OPINION , IS NOT SATISFACTORY. THE ASSESSEE HAS NOT ESTABLISHED THAT THE CASH PAYMENT OF RS.2,75,000/- WERE IN FACT MADE BY SHRI MAM RAJ TO THE ASSESSEE. IN THE CIRCUMSTANCES AND FACTS OF THE CAS E, WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A). THUS, ALL THE GROUNDS OF THE ASSESSEE ARE DISMISSED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. MA NO.14(ASR)/2015 5 6. IT IS SEEN THAT VIDE ITS EARLIER DATED 17.11.20 09, PASSED IN ITA NO. 411(ASR)/2009, THE TRIBUNAL HAS OBSERVED AS FOLLOWS : WE HAVE HEARD BOTH THE PARTIES, CONSIDERED THE RIV AL SUBMISSIONS AND HAVE GONE THROUGH THE RELEVANT FACTS AND MATERI AL PLACED ON RECORD. WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE WAS NOT AFFORDED ANY OPPORTUNITY TO CROSS EXAMINE SH. MAMRA J, WHO DEPOSED BEFORE THE AUTHORITIES BELOW. THEREFORE, TO MEET END OF JUSTICE AND TO DETERMINE CORRECT TAX LIABILITY, IT IS IMPERATIVE AND ESSENTIAL THAT THE CASE BE RESTORED TO THE FILE OF THE A.O. FOR ALLOWING REQUISITE OPPORTUNITY TO THE ASSESSEE FOR CROSS EXA MINATION OF SH. MAMRAJ, WHO FILED AFFIDAVIT. THE A.O. IS DIRECTED TO AFFORD PROPER AND REASONABLE OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE SAID PERSON, TO WHOM THE ASSESSEE INTENDS TO DO SO, BEFORE ADJUDICATING THE ISSUE IN DISPUTE. ACCORDINGLY, THI S APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. THUS, THE FACT THAT THE ASSESSEE HAS NOT BEEN AF FORDED ANY OPPORTUNITY TO CROSS-EXAMINE SH. MUMRAJ WAS DULY TA KEN NOTE OF BY THE TRIBUNAL IN THE AFORESAID ORDER OF THE TRIBUNAL, D ATED 17.11.2009 AND, THEREFORE, THE MATTER WAS REMITTED TO THE FILE OF THE AO TO REDECIDE THE MATTER AFTER ALLOWING THE REQUISITE OPPORTUNITY TO THE ASSESSEE TO CROSS- EXAMINE SH. MUMRAJ. THE AO ISSUED SUMMONS TO SH. MU MRAJ, BUT SH. MUMRAJ HAD EXPIRED ON 05.03.2008, AS ALSO ADMITTED BY THE AO IN PARA- 2, OF THE ASSESSMENT ORDER DATED 14.12.2010, PASSED IN PURSUANCE OF THE REMAND BY THE TRIBUNAL. 8. THESE LATTER FACTS HAVE INADVERTENTLY NOT BEEN T AKEN NOTE OF, MUCH LESS ADJUDICATED IN OUR ORDER DATED 26.11.2014. 9. ACCORDINGLY, THERE HAS CREPT IN AN INADVERTENT MISTAKE APPARENT FROM RECORD IN OUR AFORESAID ORDER, AND THE SAID ORDER I S LIABLE TO BE RECALLED. IT MA NO.14(ASR)/2015 6 IS SO ORDERED. ACCORDINGLY, ORDER OF THE TRIBUNAL DATED 26.11.2014 IS RECALLED IN TOTO AND THE APPEAL IS ORDERED TO BE HE ARD ON MERITS. THE APPEAL SHALL NOW COME UP FOR HEARING ON 12.04.2016. 10. IN THE RESULT, THE MISC. APPLICATION IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON /02/201 6 (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: /02/2016 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE:SH. RAVI KHANNA, (HUF), ABOHAR. 2. THE ITO, WARD II(3), ABOHAR. 3. THE CIT(A), BATHINDA. 4. THE CIT, BATHINDA. 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.