Sh. Deepak Kumar, Moga V. The Income-tax Officer, Moga

MA 67/ASR/2014

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5489 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T.S. KAPOOR, ACCOUNTANT MEMB ER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER M. A. NO. 67/(ASR)/2014 (ARISING OUT OF I.T.A NO. 612/(ASR)/2013) ASSESSMENT YEAR: 2009-10 PAN: AFBPK5681D SH. DEEPAK KUMAR S/O SH. RAMESH KUMAR, 7/444, GALI NO. 9, NEW TOWN, MOGA. VS. I. T. O, WARD -1 MOGA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J. S. BHASIN (ADV.) RESPONDENT BY: SH. RAHUL DHAWAN (DR) DATE OF HEARING: 05.05.2017 DATE OF PRONOU NCEMENT: 12.05.2017 ORDER PER T. S. KAPOOR (AM): THIS IS A MISCELLANEOUS APPLICATION WHICH HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 26 .03.2014 IN ITA NO. 612/(ASR)/2013. 2. THE LD. AR, AT THE OUTSET SUBMITTED THAT THE HON 'BLE TRIBUNAL IN PARA 4 HAS MENTIONED THAT LD. CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER EXCEPT THE ADDITION OF RS. 1,30,0 00/-. THE LD. AR SUBMITTED THAT THIS FACT IS NOT FULLY CORRECT TO TH E EXTENT THAT RELIEF OF RS. OF 7,50,000/- WAS ALSO GIVEN BY CIT(A), WHICH IS NO TED IN LAST PARA ON PAGE 15 OF HIS ORDER AND WHICH HAS ESCAPED TO BE ME NTIONED ALONGWITH THE RELIEF OF RS. 1,30,000/- AND IN THIS RESPECT, T HE LD. AR INVITED OUR MA NO. 67 (ASR)/2014 ARISING OUT OF IT A NO. 612 (ASR)/2013 ASST. YEAR:2009-10 2 ATTENTION TO THE RELEVANT PART OF HON'BLE TRIBUNAL ORDER AND ALSO TOOK US TO LD. CIT(A)S ORDER AT PAGE 14 AND 15. IT WAS SUB MITTED THAT THIS OMISSION WOULD MEAN THAT BUT FOR A RELIEF OF RS. 1, 30,000/-, THE WHOLE OF THE REMAINING ORDER HAS BEEN RESTORED TO CIT(A) FOR DENOVO ADJUDICATION, AND IT WOULD RESULT INTO REVISITING THE ISSUE ALL O VER AGAIN BEFORE CIT(A), IT WAS SUBMITTED THAT IT IS A MISTAKE APPARENT FROM RE CORD WHICH NEEDS TO BE RECTIFIED. 3. THE LD. DR ON THE OTHER HAND SUBMITTED THAT THE HON'BLE TRIBUNAL HAS ONLY REMITTED THE ISSUE BACK TO LD. ASSESSING O FFICER TO VERIFY THE AVAILABILITY OF CASH, AS PER THE PROVISIONS OF SECT ION 44AF AND THEREFORE IT HAS NO MATERIAL IMPACT. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT HON'BLE TR IBUNAL HAD NOTED AT PAGE 4 OF HIS ORDER THAT LD. CIT(A) CONFIRMED THE A CTION OF ASSESSING OFFICER EXCEPT THE ADDITION OF RS. 1,30,000/- BUT W HILE GOING THROUGH THE ORDER OF THE LD. CIT(A) FROM PAGE 14 ONWARDS, WE FI ND THAT BESIDES RS. 1,30,000/-, THE LD. CIT(A) HAD ALLOWED RELIEF TO TH E EXTENT OF RS. 7,50,000/- ALSO WHICH IS APPARENT FROM THE FOLLOWIN G FINDINGS RECORDED BY LD. CIT(A) AS PAGE 15. THIS AMOUNT RECEIVED FROM ONE SH. ARPIT GAUTAM IS ACCEPTABLE AS EXPLAINED AS THE SAME AMOUNT HAD BEEN RETURNED BY A N ACCOUNT PAYEE CHEQUE BY THE APPELLANT. IT HAS ALSO BEEN EXPLAINED THAT THE IMPUGNED AMOUNT HAD BEEN RECEIVED FROM SH. ARPIT GAUTAM BY C HEQUE FOR STARTING THE BUSINESS OF LIQUOR VEND FOR WHICH APPELLANT HAD MADE BANK DRAFT IN FAVOUR OF ASSISTANT EXCISE AND TAXATION COMMISSIONE R, MOGA TO THE TUNE OF RS. 50,000/-. BOTH EVIDENCE ARE AVAILABLE IN THE BA NK ACCOUNT ONLY AND MA NO. 67 (ASR)/2014 ARISING OUT OF IT A NO. 612 (ASR)/2013 ASST. YEAR:2009-10 3 HAVE BEEN VERIFIED AND THEREFORE NO ADDITION IS CAL LED FOR WITH REFERENCE TO AMOUNT RECEIVED FROM SH. ARPIT GAUTAM TO THE TUNE O F RS. 7,50,000/-. THEREFORE THE FINDINGS RECORDED BY HON'BLE TRIBUNAL AT PAGE 4 IS NOT CORRECT TO THE EXTENT THAT THE HON'BLE TRIBUNAL SHOULD HAVE MENTIONED RS. 7,50,000/- ALSO ALONG WITH RS. 1,30,0 00/- AND THEREFORE WE CORRECT THE MISTAKE APPARENT FROM THE RECORD AND WE REFRAME PARA 4 AS UNDER: THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSESS ING OFFICER EXCEPT THE ADDITION OF RS. 1,30,000/- AND RS. 7,50,000/-. 5. IN VIEW OF THE ABOVE, THE MISCELLANEOUS APPLICAT ION FILED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.05. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 12/05/2017 GP/SR./PS COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER