Income Tax Officer, Seoni V. Shri Kuldeep Agrawal, Seoni

MA 8/JAB/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0357 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 25-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: I B KHANDEL
• Assessee Lawyers: SA
• Keywords: Opportunity of cross examination
• Section: 143(3); 268A; 147; 68

Judgement Text

MA NO.08/JAB/2019 (AY 2011-12) ITO V. KULDEEP AGRAWAL 1 | P A G E IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI NRS GANESAN, JUDICIAL MEMBER & SHRI SAN JAY ARORA, ACCOUNTANT MEMBER MA NO.08/JAB/2019 (ARISING OUT OF I.T.A. NO. 72/JAB/2017) ASSESSMENT YEAR: 2011-12 INCOME TAX OFFICER, WARD - SEONI, IN FRONT OF VATIKA RESTAURANT, BARAPATTHAR, SEONI (MP) VS. SHRI KULDEEP AGRAWAL, BHAGWAT NAGAR, CHHINDWARA ROAD, SEONI (MP) (PAN: AJDPA 6769L) (APPLICANT ) (RESPONDENT) APPLICANT BY SHRI I.B.KHANDEL, SR. DR RESPONDENT BY SHRI SAPAN USRETHE, ADVOCATE DATE OF HEARING 11/12/2020 DATE OF PRONOUNCEMENT 28/12/2020 ORDER PER SANJAY ARORA, AM: THIS IS A MISCELLANEOUS APPLICATION BY THE REVENUE DIRECTED AGAINST THE ORDER UNDER SECTION 254(1) OF THE INCOME TAX ACT, 1 961 (THE ACT HEREINAFTER) DATED 05/4/2019 IN RESPECT OF THE ASSESSEES ASSESS MENT U/S. 143(3) R/W S. 147 OF THE ACT DATED 02/02/2016 FOR ASSESSMENT YEAR (AY) 2 011-12. 2. THE PETITION RAISES THE FOLLOWING GROUNDS: I. THAT THE ASSESSEE HAD NOT PROVED THE EXISTENCE OF T HE LIABILITY ON ACCOUNT OF SUNDRY CREDITORS OF RS. 90,95,798/- BEFORE THE A O DURING THE ASSESSMENT PROCEEDINGS. II. THAT THE HONBLE ITAT AND LD. CIT(A) HAVE DELETED T HE ADDITION OF RS. 90,95,798/- WITHOUT UTILIZING THE POWER AVAILABLE W ITH HIM TO PROVIDE OPPORTUNITY OF CROSS EXAMINATION OF THE CREDITORS T O THE AO AND HAS NOT REMANDED THE ISSUE TO THE AO FOR VERIFICATION. MA NO.08/JAB/2019 (AY 2011-12) ITO V. KULDEEP AGRAWAL 2 | P A G E III. THAT THE HONBLE ITAT WAS NOT JUSTIFIED IN CONFIRMI NG THE DECISION OF THE LD. CIT(A) IN ANTIRATIONAL EVIDENCE U/R. 46A OF THE INCOME TAX RULES, 1962 PRODUCED BY THE ASSESSEE, AS THE SAME WAS NOT PRODUCED BY THE ASSESSEE BEFORE THE AO THOUGH SUFFICIENT TIME WAS P ROVIDED TO THE ASSESSEE. 3. AT THE OUTSET, THE BENCH, NOTICING THE SAID GROU NDS, APPARENTLY ARGUMENTATIVE, OBSERVED THE SAME TO RAISE A SINGLE ISSUE, I.E., RECALL OF THE IMPUGNED ORDER FOR A DECISION QUA THE ADDITION FOR RS. 90.96 LACS U/S. 68 OF THE ACT, SINCE DELETED, BY THE TRIBUNAL AFRESH. THE TAX -EFFECT OF THE SAME IS CLEARLY BELOW RS. 50 LACS, I.E., THE EXTANT LIMIT U/S. 268A , SO THAT THE TRIBUNAL, EVEN IF IT WERE TO RECALL THE IMPUGNED ORDER, WOULD BE OBLIGED TO DISMISS THE REVENUES APPEAL IN LIMINE U/S. 268A. THIS IS AS THIS IS THE ONLY ISSUE BEING DISPUTED BY THE REVENUE PER ITS INSTANT APPEAL, FOR WHICH WE H AVE EXAMINED THE APPEAL FILE. AS SUCH, WITHOUT GOING INTO THE MERITS OF THE REVEN UES INSTANT APPLICATION, THE SAME BECOMES NON-MAINTAINABLE U/S. 268A. THIS POSIT ION OF LAW, WHICH OBTAINS IN VIEW OF S.268A, ON BEING PUT TO THE LD. DR, WAS CONCEDED TO BY HIM, WITH THE LD. AR, THE ASSESSEES COUNSEL, POINTING OUT THAT T HE TAX-EFFECT OF THE REVENUES APPEAL, MENTIONED IN APPEAL MEMO ITSELF, IS AT RS. 30,62,442, AND ON WHICH HE RELIES WITHOUT PREJUDICE TO THE OTHER CONTENTIONS A VAILABLE TO THE ASSESSEE. 4. IN VIEW OF THE FOREGOING, ON WHICH ASPECT OF MAT TER THERE IS CLEARLY NO DOUBT OR DISPUTE, EITHER WITH REGARD TO FACT/S OR L AW, THE REVENUES INSTANT APPLICATION IS DISMISSED AS NOT MAINTAINABLE U/S. 2 68A. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE REVENUES PETITION IS DISMISS ED IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 28, 2020 SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28/12/2020 // TRU E COPY //