Sukhjit Singh, Mohali V. ITO, Chandigarh

MA 37/CHANDI/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0765 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-07-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 10-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: S K MUKHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER M.A. NO.37 /CHD/2013 (IN ITA NO.515 /CHD/2009) (ASSESSMENT YEAR : 2005-06) SUKHJIT SINGH, VS. THE INCOME TAX OFFICER, HOUSE NO.9(II) FLOOR), WARD 2(2), SECTOR 69, MOHALI. CHANDIGARH. CHANDIGARH. PAN: AZXPS6692L (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.K.MUKHI RESPONDENT BY : SHRI J.S.NAGAR, DR DATE OF HEARING : 26.07.2013 DATE OF PRONOUNCEMENT : 26.08.2013 O R D E R PER SUSHMA CHOWLA, JM: THE APPLICANT HAS FILED THIS MISCELLANEOUS APPLICAT ION FOR RECALLING THE ORDER DATED 23.05.2013 IN ITA NO.515/ CHANDI/2009 RELATING TO THE ASSESSMENT YEAR 2005-06 WHICH WAS DISMISSED EX-PARTE FOR WANT OF PROSECUTION. 2. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED AG AINST THE ORDER PASSED BY THE TRIBUNAL EX-PARTE THE APPLICANT. THE APPLICANT IS AGGRIEVED BY THE SAID ORDER PASSED ALLEGING THAT DU E TO NON-FUNCTIONING OF THE BENCH DATE WAS NOT GIVEN TO THE APPLICANT TH OUGH HE WAS APPEARING ON THE EARLIER DATES AND ALSO NO NOTICE W AS RECEIVED BY THE APPLICANT. THE APPEAL IN THE CASE WAS FIXED BEFORE THE TRIBUNAL PURSUANT TO THE DIRECTIONS OF THE HON'BLE HIGH COURT VIDE JU DGMENT DATED 16.2.2012 AND THE MATTER WAS SET ASIDE REVERSING TH E FINDINGS OF 2 THE TRIBUNAL UNDER WHICH ADDITION OF RS.17,19,000/- WAS DELETED. THE HON'BLE HIGH COURT HELD THAT THE FINDINGS RECORDED BY THE TRIBUNAL WAS BASED ON CONSIDERATION OF NON-EXISTING MATERIAL AND HENCE THE SAID ORDER WAS SET ASIDE. IN VIEW OF THE DIRECTIONS OF THE HO N'BLE TRIBUNAL THE APPLICANT WAS CONFRONTED AND WAS ASKED TO SUBSTANTI ATE ITS CLAIM. 3. THE LEARNED A.R. FOR THE APPLICANT IN THE SECOND ROUND OF APPEAL BEFORE THE TRIBUNAL SOUGHT VARIOUS ADJOURNMENTS WHI CH HAVE BEEN REFERRED TO BY THE TRIBUNAL VIDE PARA 4 WHICH READS AS UNDER: 4. THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARIN G ON 19.12.2011 AFTER RECEIPT OF THE JUDGMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT. THE CASE WAS ADJOURNED AT THE REQUEST OF THE LEARNED COUNSEL FOR THE ASSESSEE ON VARIOUS DATES. THE ASSESSEE FILED PAPE R BOOK ON 30.7.2012 AND THE MATTER WAS ADJOURNED TO T HE NEXT DATE OF HEARING BUT THE LEARNED A.R. FOR THE ASSESSEE SOUGHT ADJOURNMENT. ON 27.8.2012 THE MATT ER WAS FIXED FOR HEARING AND LAST OPPORTUNITY WAS GIVE N TO THE LEARNED COUNSEL FOR THE ASSESSEE AND THE MATTER WAS FIXED FOR HEARING ON 28.8.2012. AGAIN ON 28.8.2012 THE LEARNED COUNSEL FOR THE ASSESSEE SOUGHT ADJOURNMENT AND THE MATTER WAS ADJOURNED AT THE REQUEST OF THE COUNSEL AND IT WAS AGAIN MENTIONED THAT IT WAS THE LAST OPPORTUNITY BEING GIVEN. THEREAFTER THE BENCH DID NOT FUNCTION ON 6.11.2012 AND 27.2.2013. NOTICE OF HEARING WAS SENT TO THE ASSESSEE FOR 20.5.2013 ON W HICH NONE ATTENDED ON BEHALF OF THE ASSESSEE. THE PERUS AL OF RECORD REVEALS THE ASSESSEE TO HAVE FURNISHED WRITT EN ARGUMENTS ON 27.8.2012 WHEN THE MATTER WAS ADJOURNE D TO 28.8.2012 AND THEREAFTER TO 6.11.2012. THE COND UCT OF LEARNED A.R. FOR THE ASSESSEE REFLECTS TOTAL NON - COOPERATION AND ONLY REQUESTS WERE BEING MADE FROM DATE TO DATE FOR ADJOURNMENT. ON THE APPOINTED DAT E OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE, NO R ANY APPLICATION WAS FILED FOR ADJOURNMENT. IN VIEW THEREOF, WE PROCEED TO DECIDE THE PRESENT APPEAL AF TER HEARING THE LEARNED D.R. FOR THE REVENUE AND ALSO CONSIDERING THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. 4. FURTHER THE LEARNED A.R. FOR THE APPLICANT HAD F ILED WRITTEN SUBMISSIONS WHICH WERE CONSIDERED BY THE TRIBUNAL V IDE PARAS 5 AND 6, WHICH READ AS UNDER: 3 5. THE PERUSAL OF THE WRITTEN SUBMISSIONS FILED BY THE LEARNED A.R. FOR THE ASSESSEE REFLECTS THAT NEW ARGUMENT OF THE ASSESSEE NOW BEFORE US IS THAT WHIL E MAKING ADDITION ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT, THE ASSESSING OFFICER HAD FAILED TO TAKE I NTO CONSIDERATION THE ENTRIES OF WITHDRAWALS. THE PLEA OF THE LEARNED A.R. FOR THE ASSESSEE WAS THAT THE APPE LLANT USED TO MAKE DEPOSITS IN THE BANK, WITHDREW THE SAM E ON DIFFERENT DATES AND REDEPOSIT THE SAME AGAIN IN HIS BANK ACCOUNT. THE LEARNED A.R. FOR THE ASSESSEE TH US STATED THAT SO EVEN OTHERWISE, THE OPENING BALANCE IN HIS BANK ACCOUNT, SALE PROCEEDS OF HIS AGRICULTURAL PRODUCE AND THE ENTRIES OF WITHDRAWALS ON DIFFERENT DATES AND THEIR RE-DEPOSIT IN THE SAME BANK ACCOUNT DULY EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE BAN K ACCOUNT. A STATEMENT OF THE CASH ACCOUNT PREPARED ON THE BASIS OF BANK ACCOUNT TRANSACTIONS IS ANNEXED A S ANNEXURE A-I , TO SUBSTANTIATE THE ABOVE SUBMISSION, WHICH CLEARLY SHOWS THAT ASSESSEE WAS HAVING SUFFIC IENT CASH AVAILABLE AT THE TIME OF IMPUGNED CASH DEPOSIT S . 6. THE SECOND PLEA OF THE ASSESSEE WAS THAT EVEN FOR ARGUMENT SAKE, IT IS FURTHER SUBMITTED THAT TO EXPL AIN SOURCE OF DEPOSITS IN THE BANK ACCOUNT OF THE APPEL LANT SHRI SUKHJIT SINGH, FOR THE RELEVANT PERIOD, A CASH AVAILABILITY STATEMENT IS ALSO BEING ANNEXED AS ANNEXURE A-2. THIS CONSOLIDATED STATEMENT CONTAINS THE ENTRIES OF SALE PROCEEDS OF THE AGRICULTURAL PRODUC E RECEIVED BY THE APPELLANT AND HIS FAMILY MEMBERS. A LL THESE ENTRIES OF THE SALE PROCEEDS OF AGRICULTURAL PRODUCE, RECEIVED FROM THE COMMISSION AGENT M/S BALRAJ VIJAY KUMAR, COMMISSION AGENT ARE DULY SUPPORTED BY DOCUMENTARY EVIDENCES, I.E., COPIES OF ACCOUNTS OF THE APPELLANT AND HIS FAMILY MEMBERS AS APPEARING IN THE BOOKS OF ACCOUNT OF THE COMMISSION AGENT, AS WELL AS J FORMS, COPY OF JAMABANDI/GURDAWARI OF LAND ETC. IT IS WORTH MENTIONING THAT AUTHENTICITY OF ALL THESE DOCUMENTA RY EVIDENCES HAVE NOT BEEN QUESTIONED BY THE DEPARTMEN T AT ANY STAGE. THEREFORE, THE CASH DEPOSITED IN THE BANK FROM A KNOWN SOURCE CAN NEVER BE TREATED AS INCOME OF ASSESSEE AND THE ADDITIONS MADE BY ASSESSING OFFICE R ARE UNCALLED FOR . DESPITE SEVERAL OPPORTUNITIES BEING AFFORDED TO THE ASSESSEE, THE LEARNED A.R. FOR THE ASSESSEE FAILED TO PLACE ON RECORD ANY EVIDENCE IN RELATION TO SALE OF AGRICULTURAL PRODUCE EXCEPT FOR PLACING ON RECORD THE CONSOLIDATED STATEMENT OF CAS H AVAILABILITY WHEREIN REFERENCE WAS MADE TO VARIOUS AMOUNTS AVAILABLE IN THE HANDS OF DIFFERENT PERSONS AND THE WRITTEN SUBMISSIONS FILED. 5. THE TRIBUNAL THEREAFTER VIDE PARA 7 HELD AS UNDE R: 7. AS PER THE DIRECTIONS OF THE HON'BLE HIGH COURT , THE ONUS WAS UPON THE ASSESSEE TO ESTABLISH THAT IT HAD RECEIVED RS.17,19,000/- ON ACCOUNT OF SALE PROCEEDS OF 4 PRODUCE GROWN ON HIS PIECE OF LAND. THE HON'BLE HI GH COURT HAD DIRECTED THE TRIBUNAL TO EXAMINE THE EVIDENCE IN THIS REGARD AS THE EARLIER FINDING OF T HE TRIBUNAL WAS BASED ON CONSIDERATION OF NON-EXISTING MATERIAL. THE TRIBUNAL IN THE FIRST ROUND OF APPEA L HAD PRESUMED THAT AS THE ASSESSEE WAS OWNING MORE THAN 100 ACRES OF LAND ALONGWITH HIS FAMILY MEMBERS, THE INCOME, IF ESTIMATED @ RS.25,000/- PER ACRE WOULD B E RS.25 LACS, WHEREAS THE ASSESSEE HAD DEPOSITED ONLY A SUM OF RS.17,19,000/- IN HIS BANK ACCOUNT OUT OF TH E SALE OF AGRICULTURAL PRODUCE. HOWEVER, THE HON'BLE HIGH COURT HELD THE FINDINGS OF THE TRIBUNAL TO BE INCORRECT AND THE MATTER WAS SET ASIDE TO THE FILE OF THE TRIBUNAL. IN VIEW OF THE FINDING OF THE HON'BLE HI GH COURT AND ALSO THE ASSESSEE HAVING NOT DISCHARGED H IS ONUS OF ESTABLISHING HIS STAND OF EARNINGS FROM HIS AGRICULTURAL LAND AND IN THE ABSENCE OF ANY EVIDENC E, WE FIND NO MERIT IN THE CLAIM OF THE ASSESSEE. THE ALTERNATE PLEA OF THE ASSESSEE IN RESPECT OF CASH D EPOSIT AND CASH WITHDRAWAL FROM THE SAME BANK IS AN ALTERN ATE PLEA WHICH COULD NOT BE ENTERTAINED AT THIS JUNCTUR E AS IT IS SECOND ROUND OF PROCEEDINGS BEFORE THE TRIBUN AL. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES, THE GRO UNDS OF APPEAL RAISED BY THE ASSESSEE ARE DISMISSED AND ADDITION OF RS.17,19,000/-MADE BY THE ASSESSING OFFICER IS UPHELD. 6. THE APPLICANT HAD FAILED TO POINT OUT ANY MISTAK E IN THE FINDINGS OF THE TRIBUNAL AND IS ONLY AGGRIEVED BY PASSING OF TH IS ORDER ON THE DATE OF FIXED FOR HEARING ON WHICH DATE THE LEARNED A.R. FO R THE APPLICANT FAILED TO PUT IN APPEARANCE. THE PERUSAL OF PARA 4 WOULD REFLECT THAT THE MATTER WAS ADJOURNED FROM DATE TO DATE AT THE REQUEST OF T HE APPLICANT AND ON 27.8.2012 THE MATTER WAS ADJOURNED BY AFFORDING LAS T OPPORTUNITY TO THE APPLICANT. HOWEVER, ON THE NEXT DATE OF HEARING I. E.28.8.2012, THE ADJOURNMENT WAS AGAIN SOUGHT BY THE LEARNED A.R. FO R THE APPLICANT AND IT WAS AGAIN ADJOURNED WITH THE MENTION THAT IT WAS THE LAST OPPORTUNITY BEING GIVEN TO THE APPLICANT. THE BENCH DID NOT FU NCTION ON 6.11.2012 AND 27.2.2013. THE NOTICE OF HEARING FOR THE NEXT DATE I.E. 25.5.2013 WAS ISSUED TO THE APPLICANT BUT NONE APPEARED ON BE HALF OF THE APPLICANT. HOWEVER, THE PERUSAL OF THE RECORD REFLECTED WRITTE N ARGUMENTS BEING FILED BY THE APPLICANT ON 27.8.2012 I.E. PRIOR TO T HE DATE WHEN THE BENCH DID NOT FUNCTION. ADMITTEDLY, THE APPLICANT HAS A RIGHT TO SEEK 5 ADJOURNMENT BUT RIGHT IS NOT AN ABSOLUTE RIGHT AND CANNOT BE GRANTED FROM DATE TO DATE IN ORDER TO AVOID THWART DISPENSA TION OF JUSTICE. 7. THE LEARNED D.R. FOR THE REVENUE REFERRED TO REP EATED ADJOURNMENTS BEING TAKEN BY THE APPLICANT ON ONE PR ETEXT OR THE OTHER AND EVEN AFTER THE TRIBUNAL HAD GIVEN THE LAST OPPO RTUNITY FOR HEARING THE APPEAL, ADJOURNMENTS WERE SOUGHT. THE HON'BLE MADRAS HIGH COURT IN BHAWARLAL C. BAFNA VS. ACIT [257 ITR 687 MAD)] H ELD THAT THE TRIBUNAL WAS PERFECTLY JUSTIFIED IN EXERCISING ITS DISCRETION IN REFUSING TO GRANT ADJOURNMENT, WHERE THE ASSESSEE HAD SOUGHT SEVERAL ADJOURNMENTS AND FINALLY THE SAME WAS REFUSED AND A PPEAL DECIDED ON MERITS. IN VIEW THEREOF, WE FIND NO MERIT IN THE P RESENT MISCELLANEOUS APPLICATION MOVED BY THE APPLICANT AND THE SAME IS DISMISSED. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE APPLICANT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF AUGUST, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26 TH AUGUST, 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 6