NARENDRA KUMAR CHATURVEDI, Jaipur V. ITO, Sawai Madhopur

MA 41/JPR/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3626 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 08-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SIDDARTH RA NKA; M IQBAL
• Keywords: Principle of natural justice; Question of law
• Section: 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM M.A. NO. 41/JP/2015 (ARISING OUT OF I.T.A. NO. 1015/JP/2010) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2005-06 NARENDRA KUMAR CHATURVEDI, PROP.- M/S VISHNU MOTORS, HINDAUN CITY. CUKE VS. INCOME TAX OFFICER, WARD-3, SAWAIMADHOPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ABSPC 5327 P VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI SIDDARTH RANKA & SHRI M. IQBAL (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI KAILASH MANGAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 16/10/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 12/11/2015 VKNS'K @ ORDER PER T.R. MEENA, AM THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON AGAINST THE ORDER OF THIS BENCH OF ITAT, JAIPUR IN ITA NO. 1015/ JP/2010 FOR A.Y. 2005- 07, WHICH WAS PASSED ON 26/08/2011. M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 2 2. THE ASSESSEE CHALLENGED THROUGH THIS M.A. AS UNDE R:- 2. GROUND NO.2 OF ASSESSEE APPELLANTS APPEAL IN I TA: 1015/JP/2010 WAS WITH REGARDS TO ADDITION OF RS.12, 99,950/- ON ACCOUNT OF EXCESS STOCK AS DISCLOSED TO THE BANK VIZ. DECLARED IN THE BALANCE SHEET. THAT FOLLOWING APPAR ENT ERRORS AND MISTAKES HAVE CREPT IN THE ORDER PASSED BY THE HONBLE ITAT WHICH ARE AS UNDER: 2.1 THE HONBLE ITAT HAS ASSUMED AND PRESUMED IN PA RA 4.3. TO PARA 4.10 CERTAIN ASPECTS AND HAVE IGNORED CERTA IN MATERIAL BEARING WHICH OUGHT TO HAVE BEEN CONSIDERE D: A. PARA 4.8: THAT BANK STOCK STATEMENT WAS IN FACT SUBMITTED BY THE ASSESSEE TO THE BANK WHEREAS THE F ACT IS AS PER ASSESSEES SUBMISSION DATED 08.12.2007 IT WAS CLEARLY SUBMITTED TO THE LD. ASSESSING OFFICER THAT SOMETIMES THE ASSESSEE SUBMITS THE BANK STATEMENT O N ESTIMATE BASIS AND IT WASNT SUBMITTED ON REGULAR B ASIS; B. PARA 4.8.: THAT BANK STOCK STATEMENT WAS SIGNED BY THE EMPLOYEE OF THE ASSESSEE. FROM WHERE SUCH FACT HAS BEEN ADDUCED IS NOT KNOWN; C. PARA 4.8.: THAT IT IS NOT A CASE OF ASSESSEE THA T HE REQUESTED THE ASSESSING OFFICER U/S. 131 TO OBTAIN SUCH STATEMENT. WHEREAS THE COPY OF BANK STOCK STATEMENT OBTAINED BY THE LD. ASSESSING OFFICER AT THE BACK O F THE ASSESSEE APPELLANT WASNT EVEN PROVIDED TO THE ASSESSEE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND NO OPPORTUNITY TO CONTROVERT THE STATEMENT WAS PROVIDED; M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 3 D. NO OPPORTUNITY TO CROSS EXAMINE THE BANK MANAGER WAS PROVIDED TO THE ASSESSEE APPELLANT DESPITE SPECIFIC REQUEST MADE BY THE ASSESSEE APPELLANT. WHEN REFERENCE TO ADEQUATE OPPORTUNITY NOT PROVIDED WAS MADE A PASSING REFERENCE WAS MADE THAT 9 OPPORTUNIT IES WERE PROVIDED TO THE ASSESSEE. HOWEVER WHAT IS MATERIAL IS WHETHER THESE 9 OPPORTUNITIES WERE PRIO R TO LD. ASSESSING OFFICER CONFRONTING THE ASSESSEE APPELLAN T WITH REGARDS TO VALUATION OF CLOSING STOCK OR AFTER THAT; E. IT IS SETTLED LAW THAT USER OF MATERIAL WITHOUT CONFRONTING IT TO THE ASSESSEE IS BAD IN LAW AND AGAINST THE PRINC IPLES OF NATURAL JUSTICE. 2.2 THE HONBLE ITAT HAS IN PARA 4.10 HAVE STATED T HAT THE ASSESSEE HAS SUBMITTED PAPER BOOK OF 100 PAGES BUT IT DOESNT CONTAIN TRADING ACCOUNT. IN FACT THE RECAST ED TRADING ACCOUNT WAS SUBMITTED WHICH HONBLE ITAT HA S COMPLETELY IGNORED. EVEN OTHERWISE IF THEY REQUIRED THE TRADING ACCOUNT THEY COULD HAVE DEMANDED FROM THE A /R OR COULD HAVE SET-ASIDE TO THE LD. ASSESSING OFFICER T O RE-VERIFY BUT PASSING OF AN ORDER WITHOUT HAVING FULL DOCUMEN TS IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2.3 THE HONBLE ITAT HAS IN PARA 4.10 HAVE STATED T HAT: A. EXCESS STOCK OF TRACTOR SPARE PARTS AND MARUTI S PARE PARTS IS ESTIMATED AT RS.3.00 LACS. THUS THE EXCESS STOCK WILL BE RS.12.90 LACS: FROM WHERE THE FIGURE OF RS.3.00 LACS HAVE BEEN ARRIVED AT IS NOT KNOWN. FRO M WHERE THE FIGURE OF RS.12.90 LACS HAVE BEEN ARRIVED AT IS M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 4 NOT KNOWN. FURTHERMORE NO CREDIT OF STOCK ALREADY SHOWN BY THE ASSESSEE APPELLANT HAS BEEN GIVEN; B. NO SEPARATE ADDITION FOR EXCESS STOCK IS MADE: I N THE PARA ABOVE THE HONBLE ITAT HAS MENTIONED THAT EXCE SS STOCK IS DEEMED TO BE TO THE EXTENT OF RS.12.90 LAC S. WHEREAS HERE IT IS MENTIONED THAT NO SEPARATE ADDIT ION OF EXCESS STOCK IS BEING MADE. THE STATEMENTS ARE S ELF CONTRADICTORY. C. THE ESTIMATION OF SALES MADE BY THE AO CANNOT TE RMED AS INVALID: IN FACT THE ESTIMATION OF SALES AND EST IMATION OF GP MADE BY THE AO WAS REJECTED BY THE CIT (A) AN D NO SUCH GROUND WAS THERE BEFORE THE HONBLE ITAT AN D WITHOUT ANY GROUND AND WITHOUT ANY BASIS AND REASON ING IT HAS BEEN STATED THAT ESTIMATION OF SALES MADE BY THE AO CANNOT TERMED AS INVALID. D. WE THEREFORE, UPHOLD THE ADDITION CONFIRMED BY THE LD. CIT(A) ON THIS ISSUE OF TRADING ADDITION: IN FACT T HE TRADING ADDITION WAS DELETED BY THE CIT(A) AND NO S UCH GROUND WAS THERE BEFORE THE HONBLE ITAT AND WITHOU T ANY GROUND AND WITHOUT ANY BASIS AND REASONING IT H AS BEEN STATED THAT TRADING ADDITION CONFIRMED BY CIT (A) IS UPHELD. 3. GROUND NO.3 OF ASSESSEE APPELLANTS APPEAL IN IT A : 1015/JP/2010 WAS WITH REGARDS TO ADDITION OF RS.6,4 0,000/- ON ACCOUNT OF CREDIT APPEARING IN THE ACCOUNT OF SH RI RAM KHILARI SHARMA. THAT FOLLOWING APPARENT ERRORS AND MISTAKES HAVE CREPT IN THE ORDER PASSED BY THE HONBLE ITAT WHICH ARE AS UNDER: M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 5 3.1 AMOUNT RECEIVED FROM SHRI RAM KHILADI SHARMA IN PREVIOUS YEARS AMOUNTING TO RS.5.00 LACS BY WAY OF ACCOUNT P AYEE CHEQUES WAS UTILIZED BY THE ASSESSEE APPELLANT TOWA RDS GIVING ADVANCE TOWARDS PURCHASE OF LAND FROM SHRI A SHOK KUMAR SHARMA AND SHRI RAM AVTAR SHARMA (JOINT OWNER S). SINCE THE TRANSACTIONS WERE OF PERSONAL NATURE, HEN CE WERE NOT REFLECTED IN THE BOOKS OF ACCOUNTS OF M/S. VISH NU MOTORS THE PROPRIETORSHIP CONCERN OF THE ASSESSEE. 3.2 SIMILARLY WHEN THE DEAL WITH SHRI ASHOK KUMAR S HARMA AND SHRI RAM AVTAR SHARMA (JOINT OWNERS) DID NOT MATERI ALIZE THEY RETURNED BACK THE CASH AND THE LOAN OBTAINED F ROM SHRI RAM KHILADI SHARMA WAS RETURNED BACK TO HIM. SINCE THE CHEQUE ISSUED TO SHRI RAM KHILADI SHARMA WAS PAID F ROM BANK ACCOUNT OF M/S. VISHNU MOTORS, THUS IT WAS ENT ERED FOR THE FIRST TIME IN THE BOOKS OF ACCOUNTS OF ASSESSEE . TO SQUARE UP THE ACCOUNT THE ASSESSEE ALSO THUS REFLEC TED CASH RECEIVED BACK FROM SHRI ASHOK KUMAR SHARMA AND SHRI RAM AVTAR SHARMA (JOINT OWNERS) SINCE NO SEPAR ATE ACCOUNT WAS OPENED OF THEIRS. THIS MATERIAL FACT HA S NOT BEEN PROPERLY UNDERSTOOD BY THE HONBLE ITAT AND ACCORDINGLY WRONG VIEW WAS ADOPTED. 3.3 SHRI ASHOK KUMAR SHARMA ALSO FURNISHED AN AFFID AVIT CONFIRMING RECEIPT OF ADVANCE OF RS.2.50 LACS FROM THE ASSESSEE APPELLANT AND ALSO THE FACT THAT THE AMOUN T WAS RETURNED BACK AS THE DEAL DID NOT MATERIALIZE. THE AFFIDAVIT M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 6 REMAINED UNCONTROVERTED. IN CASE THERE WAS ANY DOUB T THE SHRI ASHOK KUMAR SHARMA SHOULD HAVE BEEN EXAMINED T O KNOW THE TRUTH. IT IS AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 3.4 SHRI RAM AVTAR SHARMA ALSO FURNISHED AN AFFIDAV IT CONFIRMING RECEIPT OF ADVANCE OF RS.2.50 LACS FROM THE ASSESSEE APPELLANT AND ALSO THE FACT THAT THE AMOUN T WAS RETURNED BACK AS THE DEAL DID NOT MATERIALIZE. STAT EMENT OF SHRI RAM AVTAR SHARMA WERE RECORDED BY THE ASSESSIN G OFFICER AND NOT SHRI ASHOK KUMAR SHARMA (AS MENTION ED IN THE ORDERS) WHO AGAIN CONFIRMED RECEIPT OF ADVANCE OF RS.2.50 LACS FROM THE ASSESSEE APPELLANT AND ALSO T HE FACT THAT THE AMOUNT WAS RETURNED BACK AS THE DEAL DID N OT MATERIALIZE. THE STATEMENTS HAVE BEEN IGNORED ONLY ON ACCOUNT OF HUMAN PROBABILITY. RELIANCE HAS BEEN PLA CED ON THE FINDINGS OF THE LD. LOWER AUTHORITIES WITHOUT R EALLY APPRECIATING THE MATERIAL ON RECORD. IT IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3.5 FURTHER ASSESSEE SUBMITTED THAT RS.1.40 LACS WE RE GIVEN BY THE ASSESSEE APPELLANT TO SHRI RAM KHILADI SHARMA B Y WAY ON AN ACCOUNT PAYEE CHEQUE DURING THE YEAR UNDER CONSIDERATION. SHRI RAM KHILADI SHARMA INITIALLY DE NIED HAVING RETURNED RS.1.40 LACS TO THE ASSESSEE BY CAS H IN HIS STATEMENTS RECORDED U/S. 131, HOWEVER HE SUBSEQUENT LY FURNISHED A N AFFIDAVIT STATING THAT HE RETURNED RS .1.40 LACS BY CASH. THE AFFIDAVIT REMAINED UNCONTROVERTED. IN CASE M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 7 THERE WAS ANY DOUBT THEN SHRI RAM KHILARI SHARMA SH OULD HAVE BEEN REEXAMINED TO KNOW THE TRUTH. IT IS AGAIN ST THE PRINCIPLES OF NATURAL JUSTICE. 3.6 AT PARA 5.4 THE HONBLE ITAT HAS MENTIONED THAT THERE SHOULD HAVE BEEN CASH WITHDRAWAL FROM THE BANK WHEN THE AGREEMENT WAS ENTERED WITH SHRI RAM AVTAR SHARMA AN D SHRI ASHOK KUMAR SHARMA. THE HONBLE ITAT HAS ASSUM ED AND PRESUMED THAT THERE WAS NO CASH WITHDRAWAL FROM THE BANK WHICH IS TOTALLY AGAINST THE EVIDENCE ON RECOR D AND THE FINDING IS WITHOUT ANY BASIS. 3.7 AT PARA 5.2 THE HONBLE ITAT HAS MENTIONED THAT THE AO NOTICED THAT AMOUNT WITHDRAWN FROM THE BANK HAS BEE N UTILIZED FOR THE PURPOSE OF BUSINESS. THE SAID RELI ANCE BY THE HONBLE ITAT IS ITSELF CONTRARY TO THE FINDING REAC HED BY IT IN PARA 5.4 AS STATED HEREINABOVE. THE LD. ASSESSING O FFICER HAS HIMSELF ASSUMED AND PRESUMED THAT CASH WITHDRAW N FROM THE BANK WAS UTILIZED FOR BUSINESS PURPOSE WHI CH IS ITSELF TOTALLY CONTRARY TO THE RECORD AND THE DETAI LED WRITTEN SUBMISSION FILED BY THE ASSESSEE APPELLANT BEFORE T HE HONBLE ITAT IN GROUND NO.3, PARA 2, CLAUSE (A), SU B- CLAUSE (I),(II),(III), & (IV) HAVE BEEN IGNORED. 4. THE HONBLE ITAT HAS WRONGLY INTERPRETED THE FAC TS AND SUBMISSIONS PRESENTED BEFORE THE LOWER AUTHORITIES AND SUBMITTED BEFORE IT WITHOUT CONFIRMING THE FACTS BO RNE OUT OF M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 8 RECORDS. WITHOUT PROPER APPRECIATION AND VERIFICATI ON OF THESE DOCUMENTS AND RECORDS GRAVE INJUSTICE HAVE BE EN METED OUT ON ME. 3. THE CASE WAS HEARD. THE LD AR AGAIN HAS DRAWN OUR AT TENTION ON FACTS POINTED OUT IN THE MISC. PETITION AND ALSO TH E FINDINGS GIVEN BY THE HONBLE BENCH IN PARAGRAPH NO. 4.3 TO 4.10 AND ARGU ED THAT THE ASSESSEE HAS A CASE AND THERE IS APPARENT MISTAKE IN THE ORD ER OF THE HONBLE BENCH, THEREFORE, THE SAME IS REQUIRED TO BE MODIFIED U/S 251(2) OF THE ACT. HE FURTHER RELIED ON THE DECISION OF HONBLE HYDERABAD BENCH OF ITAT IN THE CASE OF BHARAT BIOTECH INTERNATIONAL LTD. VS DCIT I N ITA NO. 392/HYD/2010, 632/HYD/2011 AND 301/HYD/2012 ASSESSMENT YEAR 2006- 07 TO 2008-09 DATED 30/05/2014. THEREFORE, HE PRAYED TO ALLOW THE M.A. PETITION OF THE ASSESSEE. 4. AT THE OUTSET, THE LD DR HAS ARGUED THAT THIS IS SUE HAS BEEN CONSIDERED BY THE HONBLE BENCH IN RESPECTIVE PARAS AND DETAILED FINDINGS HAS BEEN GIVEN BY THE BENCH. THE HONBLE BENCH DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDER. HE FURTHER ARGUED THAT THE H ONBLE JURISDICTIONAL HIGH COURT IN INCOME TAX APPEAL NO. 654/2011 ORDER DATED 16/7/2012 HAS CONSIDERED THIS ISSUE AND HELD THAT THE ASSESSEES CASE INVOLVED ARE PURE M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 9 QUESTION OF FACTS AND NOT QUESTION OF LAW MUCH LESS SUBSTANTIAL QUESTION OF LAW. EVEN THE HON'BLE HIGH COURT HAS NOT FOUND ANY P ERVERSITY ON THE ACTUAL FINDINGS GIVEN BY THE HONBLE ITAT. THEREFORE, THE M. A. FILED BY THE ASSESSEE DESERVED TO BE DELETED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THROUGH THE M.A. AS WELL AS THIS BENCH DECISION. THE ASSESSEE HAS REQUESTED T O MODIFY THE ORDER OF THIS BENCH ON ADDITION OF RS. 12,29,950/- CONFIRMED ON ACCOUNT OF DIFFERENCE BETWEEN STOCK DECLARED IN THE BOOKS OF AC COUNT BEFORE THE BANK FOR LOAN AND RS. 6.4 LACS CREDIT APPEARING IN THE N AME OF SHRI RAM KHILADI SHARMA. THE COORDINATE BENCH HAS THOROUGHLY ANALYZED THIS ISSUE AND HAD GIVEN THE FINDINGS IN PARAGRAPH NO. 4.7, 4.10, 5.2 AND DISMISSED THE ASSESSEES APPEAL ON THESE GROUNDS. THE ASSESSEE C HALLENGED THIS ORDER BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT IN INC OME TAX APPEAL NO. 645/2011. THE HONBLE COURT VIDE ORDER DATED 16/7/20 12 HAS CONSIDERED THE ORDER OF THE ITAT ON FACTS AS WELL AS QUESTIONS O F LAW AND HELD THAT THE ASSESSEES CASE INVOLVED ARE PURE QUESTION OF FACTS AND NOT QUESTION OF LAW MUCH LESS SUBSTANTIAL QUESTION OF LAW. THE HONBLE CO URT FURTHER OBSERVED ON DETAILS CONSIDERED BY THE ITAT ON TRADING ADDITIO N OF RS. 12,29,905/- AND HELD THAT IT HAS NOT CALLED FOR ANY INTERFERENC E BY THIS COURT. EVEN ON M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 10 OPPORTUNITY, THE HONBLE HIGH COURT HAD NOT FOUND A NY VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THEREFORE, THE HON'BL E HIGH COURT HAS DISMISSED THE ASSESSEES APPEAL VIDE ORDER DATED 16 /7/2012 WHEN THE ASSESSEE HAS NOT GOT ANY RELIEF FROM THE HON'BLE HI GH COURT. HE FILED M.A. BEFORE US ON 24/8/2015 AND HAS PRAYED FROM THE BENC H TO MODIFY THE BENCH ORDER EVEN AFTER DISMISSAL ORDER PASSED BY TH E HON'BLE HIGH COURT IN THE CASE OF ASSESSEE. 5.1 WE HAVE CONSIDERED ALL THE ISSUES AND IT FOUND THAT WHEN THE HON'BLE HIGH COURT HAS CONSIDERED THE ASSESSEES APPEAL AND DISMISSED, THERE IS NO JURISDICTION OF THE ITAT IN ASSESSEES CASE ON SAME FACTS AND CIRCUMSTANCES OF THE CASE. EVEN WE HAVE ALSO GONE THROUGH THE ORD ER OF THE COORDINATE BENCH AND HAS NOT FOUND ANY APPARENT MISTAKE IN THE ORDER AS WE DO NOT HAVE ANY POWER TO REVIEW OUR OWN ORDER THROUGH THIS M. A., THEREFORE, WE DISMISS THE M.A. OF THE ASSESSEE. 6. IN THE RESULT, THIS M.A. APPLICATION IS DISMISSE D. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 12 TH NOVEMBER, 2015 M.A. NO. 41/JP/2015_ NARENDRA KUMAR CHATURVEDI VS. ITO 11 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI NARENDRA KUMAR CHATURVEDI, HINDA UN CITY. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-3, SAWAIMADHOPUR 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 41/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR