HITESH KOOLWAL, Jaipur V. ITO, Jaipur

MA 20/JPR/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 5430 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 17-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAGHUVIR SINGH DAGUR CIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Additional evidence

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM M.A. NO. 20/JP/2016 ARISING OUT IF ITA NO. 526/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SHRI HITESH KOOLWAL, KOOLWAL BHAWAN, WARD NO. 10, BHUKHMARIYON KA MOHALLA, CHOMU, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 2(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AJEPK 3541 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAGHUVIR SINGH DAGUR (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.09.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 16/09/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICAT ION SEEKING RECALLING OF THE TRIBUNALS ORDER DATED 13.11.2015 PASSED IN ITA NO. 526/JP/2014. 2. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS ARE MADE IN THE MISCELLANEOUS APPLICATION AND SUBMITTED THAT TH ERE IS A MISTAKE APPARENT FROM THE ORDER DATED 13.11.2015. 3. ON THE CONTRARY, THE LD. D/R SUBMITTED THAT IF T HE PRAYER OF THE ASSESSEE IS ALLOWED, IT WOULD AMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL WHICH WAS DECIDED ON MERIT. THE ASSESSEE HAS NOT POINTED OUT ANY MIS TAKE APPARENT FROM RECORD. 2 MA 20/JP/2016 SHRI HITESH KOOLWAL 4. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MAT ERIAL AVAILABLE ON RECORD. THE SUBMISSION OF THE ASSESSEE AS MADE IN THE MISCE LLANEOUS APPLICATION ARE AS UNDER :- THE ABOVE MENTIONED APPEAL HAVE BEEN DECIDED BY T HE HONBLE BENCH VIDE THEIR ORDER DATED 13.11.2015. THE ORDER PASSED BY T HE HONBLE ITAT REVEALS THAT SUBMISSIONS OF THE ASSESSEE HAVE REMAINED UNCO NSIDERED DUE TO INADVERTENCE AS DISCUSSED BELOW. THE ORDER THEREFOR E REQUIRES TO BE RECALLED. THE ONLY ISSUE INVOLVED IN THE APPEAL IS REGARDING ADDITIONS OF RS. 2,11,000/- U/S 68 OF THE INCOME TAX ACT, 1961 BEING UNEXPLAINE D DEPOSITS IN THE BANK. THE HONBLE ITAT HAS OBSERVED AS UNDER :- (I) NO CONVINCING REASON HAS BEEN GIVEN TO CONTROVERT T HE REJECTION OF ADDITIONAL EVIDENCE FILED BEFORE THE LEARNED CIT (A). (II) THE ASSESSEE HAS FAILED TO EXPLAIN THE CASH DEPOSIT ED IN THE BANK. IN THIS REGARD IT IS SUBMITTED THAT THE ASSESSEE SU BMITTED CONFIRMATIONS IN RESPECT OF DEPOSITS IN BANK IN TWO STAGES. FIRSTLY DETAILS OF PAN NUMBER AND CONFIRMATION WERE FILED IN RESPECT OF DEPOSITS TO T HE EXTENT OF RS 1,43,500/- BEFORE THE LEARNED ASSESSING OFFICER ITSELF WHICH H E MISERABLY FAILED TO CONSIDER. THIS FACT WAS ALSO BROUGHT TO THE NOTICE OF THE HONBLE ITRAT THROUGH PAPER BOOK SUBMITTED ON 03.02.2015. THIS PA PER BOOK INCLUDED PAPERS AND CONFIRMATION SUBMITTED BEFORE THE LEARNE D ASSESSING OFFICER. SECONDLY CONFIRMATION TO THE EXTENT OF RS. 46,000/- WERE SUBMI6TTED BEFORE THE HONBLE CIT (A) WITH THE PLEA THAT CONFIRMATION S IN RESPECT OF THESE COULD NOT BE SUBMITTED BEFORE THE LEARNED ASSESSING OFFIC ER AS THE DEPOSITORS BELONG TO SMALL VILLAGES AND IT TOOK TIME TO OBTAIN CONFIRMATIONS FROM THEM, WHEREAS THE LEARNED ASSESSING OFFICER DID NOT ALLOW FURTHER OPPORTUNITIES. IN VIEW OF THIS THE LEARNED CIT (A) WAS REQUESTED TO A DMIT SUCH CONFIRMATION AS ADDITIONAL EVIDENCE. THIS FACT WAS ALSO BROUGHT TO THE NOTICE OF THE HONBLE ITAT BY PAPER SUBMITTED UNDER PAPER BOOK FILED ON 0 3.02.2015. AS THESE PAPERS HAVE REMAINED UNCONSIDERED WHICH HAS RESULTE D IN, MISCARRIAGE OF JUSTICE. THE HONBLE ITAT IS MOST HUMBLY REQUESTED TO RECALL THE ORDER FOR CONSIDERING THE EVIDENCES FILED BEFORE IT. THE HONBLE ITAT HAS ALSO ERRED IN OBSERVING THAT T HE ASSESSEE HAS FAILED TO EXPLAIN THE CASH DEPOSITED IN THE BANK. (PARA 2.5 O F THE ORDER). IT IS SUBMITTED THAT THE ASSESSEE HAS FURNISHED CONFIRMATIONS CONTA INING COMPLETE ADDRESS AND PAN. FURTHER THE AMOUNT OF DEPOSITS IS VERY SMA LL. IN VIEW OF THIS THE ASSESSEE HAS DISCHARGED HIS ONUS AND THEREFORE THE DEPOSITS WERE REQUIRED TO BE TREATED AS UNEXPLAINED. 3 MA 20/JP/2016 SHRI HITESH KOOLWAL IN THE CIRCUMSTANCES THE ASSESSEE HAS FULLY EXPLAIN ED THE DEPOSITS TO THE EXTENT OF RS. 1,89,500/- (1436500+ 46000). THEREFOR E, THE ADDITIONS DESERVED DELETION. THEREFORE, I PRAY THAT IN THE IN TEREST OF JUSTICE KINDLY RESTORE THE APPEAL AND OBLIGE. HOWEVER, WE FIND THAT THE TRIBUNAL VIDE PARA 2.5 OF ITS ORDER, WHICH IS SOUGHT TO BE RECALLED, HAS OBSERVED AS UNDER :- 2.5. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIALS AVAILABLE ON RECORD. I FIND MERIT IN THE ARGUMENTS OF THE LD. DR THAT THE ASSESSEE WAS NON-COOPERATIVE BEFORE THE AO WHICH IS MENTIONED IN THE OBSERVATIONS REPRODUCED ABOVE. SINCE NO CONVINCING REASONS HAVE BEEN ADVANCED TO CONTROVERT THE REJECTION OF ADDITIONAL EVIDENCE BY THE LD. CIT (A), THIS PLEA OF THE ASSESSEE CANNOT BE ENTERTAINED. BESIDES, THE AS SESSEE HAS FAILED TO EXPLAIN THE CASH DEPOSIT IN THE BANK ACCOUNT FOR PA YMENT OF SHARE LOSS TRANSACTIONS. SINCE THE ASSESSEE HAS FAILED TO DISC HARGE HIS BURDEN AS TO CASH DEPOSIT IN THE BANK ACCOUNT, THE LD. CIT (A) HAS GI VEN PROPER REASONS ON MERITS FOR UPHOLDING THE ADDITION MADE BY THE AO. I N VIEW THEREOF, I FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT (A) WHICH IS UPHELD. THUS THE APPEAL OF THE ASSESSEE IS DISMISSED. SINCE THE TRIBUNAL HAS APPLIED ITS MIND AND DECIDED THE ISSUE ON MERIT, THE PRAYER FOR RECALLING OF THE TRIBUNALS ORDER WOULD TANTAMO UNT TO REVIEW OF THE TRIBUNALS ORDER DATED 13.11.2015. WE, THEREFORE, DO NOT SEE ANY REASON TO RECALL THE TRIBUNALS ORDER PASSED IN ITA NO. 526/JP/2014. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16/09 /2016. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 16/09/2016. DAS/ 4 MA 20/JP/2016 SHRI HITESH KOOLWAL VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI HITESH KOOLWAL, JAIPUR. 2. THE RESPONDENT THE ITO WARD 2(4), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (M.A NO. 20/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR