MUKESH GOYAL & SONS, BILASPUR,BILASPUR V. INCOME TAX OFFICER, WARD-2(2), BILASPUR, BILASPUR

ITA 389/RPR/2023

AI Insights

The case involves Mukesh Goyal & Sons (HUF), who appealed against the order of the CIT(Appeals) confirming an addition of Rs.4,00,000 on protective basis under section 69A of the Income-tax Act, 1961. The addition was initially made by the Assessing Officer (A.O) following the seizure of Rs.20 lakhs in cash, which was claimed to be unaccounted. The CIT(Appeals) dismissed the appeal due to non-participation of the assessee, despite multiple opportunities given. The Tribunal found that the CIT(Appeals) had not adequately addressed the specific issues raised by the assessee, particularly the claim of double taxation as the amount had already been offered for tax by Mukesh Goyal (individual) under the PMGKY Scheme. The Tribunal thus remanded the case back to the CIT(Appeals) for a detailed examination of the merits.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 469762 (ITAT-RAIPUR)
• Duration Of Justice: 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Next Hearing Date: 21-11-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 21-12-2023
• Other Referred Cases: CIT vs. B.N. Bhattacharya, CIT vs. Multiplan India Pvt. Ltd.
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHAL AGRAWAL
• Assessee Lawyers: YOGESH SETHIA
• Keywords: Opportunity of being heard; Assessment record
• Section: 144; 271(1)(c); 69A

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ “एक-सदèय” मामला रायपुर मɅ IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH “SMC”, RAIPUR Įी रवीश सूद, ÛयाǓयक सदèय क े सम¢ BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER आयकर अपील सं. / ITA No. 389/RPR/2023 Ǔनधा[रण वष[ / Assessment Year : 2017-18 Mukesh Goyal & Sons A-17, Rama Life City, Sakri, Bilaspur-495 001 (C.G.) PAN : AAJHM0468D .......अपीलाथȸ / Appellant बनाम / V/s. The Income Tax Officer Ward-2(2), Bilaspur (C.G.) ……Ĥ×यथȸ / Respondent Assessee by : Shri Yogesh Sethia, CA Revenue by : Shri Mohal Agrawal, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 21.11.2024 घोषणा कȧ तारȣख / Date of Pronouncement : 25.11.2024 2 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the ADDL/JCIT(A)-4, Delhi, dated 30.10.2023, which in turn arises from the order passed by the A.O under Sec. 144 of the Income-tax Act, 1961 (in short ‘the Act’) dated 24.12.2018 for the assessment year 2017-18. The assessee has assailed the impugned order on the following grounds of appeal: “1) In the facts and circumstances of the case and in law, the Ld. Addl. Commissioner of Income-tax (Appeals) is not justified in confirming addition of Rs.4,00,000/- on protective basis u/s.69A of the Income-tax Act, 1961 without giving proper opportunity. 2) In the facts and circumstances of the case and in law, the ld. Addl.CIT(A) has erred in confirming the addition of Rs.4,00,000/- made on protective basis overlooking the status of appeal of substantive assessment made in the case of Shri Mukesh Goyal, Individual. 3) In the facts and circumstances of the case and in law, the assessment order is illegal and without jurisdiction on the ground of lack of valid approval under section 153D of the Income-tax Act, 1961. 4) In the facts and circumstances of the case and in law, the Ld. Addl. Commissioner of Income-tax (Appeals) is not justified in initiating penalty proceedings u/s 271(1)(b) of the Income-tax Act, 1961 as karta of appellant HUF was suffering from cancer and undergoing treatment during assessment proceedings due to which compliances to notices could not be made. 5) The impugned order is bad in law and on facts. 3 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 6) The appellant reserves the right to addition, after or omit all or any of the grounds of appeal in the interest of justice.” 2. Succinctly stated, the assessee (HUF) had filed its return of income for A.Y.2017-18 on 05.08.2017 declaring an income of Rs.2,49,630/-. 3. On 02.12.2016, the Dy. Central Intelligence Officer (IB), Sarkanda, Bilaspur informed the A.O that cash amounting to Rs.20 lacs was found from Shri Mukesh Goyal, Smt. Seema Goyal, W/o. Mukesh Goyal and Mukesh Goyal & Sons (HUF) (i.e. the assessee). As the aforesaid persons failed to come forth any explanation as regards the source of the aforesaid amount of Rs.20 lacs (supra), therefore, treating the same as their unaccounted cash, the same was requisitioned by the department u/s. 132A of the Act. 4. At this stage, I may herein observe that though Shri Mukesh Goyal in his statement recorded u/s.131(1A) of the Act had claimed that an amount of Rs.2 lacs (out of Rs.20 lacs) was withdrawn by him and his wife from the bank account but he could not substantiate the same. Also, as is discernible from the assessment order, Shri Mukesh Goyal in his statement recorded pursuant to the warrant issued u/s. 132A of the Act, had stated that the cash belonged to the aforementioned persons, viz. (i) Shri Mukesh Goyal : Rs.7 lacs; (ii) Smt. Seema Goyal, W/o. Shri Mukesh Goyal : Rs.9 lacs; and (iii) Shri Mukesh Goyal & Sons (HUF) : Rs.4 lacs. 4 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 Thereafter, Shri Mukesh Goyal (individual) as per his “affidavit” declaration under Pradhan Mantri Gareeb Kalyan Yojana (PMGKY, 2016) admitted the entire amount of Rs.20 lacs in his name. 5. The A.O in the course of assessment proceedings called upon the assessee (HUF) to submit certificate of the amount of Rs.4 lacs surrendered under the PMGKY Scheme. As the assessee (HUF) had failed to come forth with the same, therefore, the A.O taking cognizance of the fact that Shri Mukesh Goyal (individual) had admitted the entire amount of Rs.20 lacs in his hand, made an addition of Rs.4 lacs u/s. 69A of the Act on a protective basis in the hands of the assessee. Accordingly, the A.O vide his order passed u/s. 144 of the Act, dated 24.12.2018 after making the aforesaid addition determined the income of the assessee at Rs.6,49,630/-. 6. Aggrieved, the assessee carried the matter in appeal before the CIT(Appeals) but without success. As the assessee despite having been afforded 10 opportunities had failed to participate in the proceedings before the first appellate authority, therefore, the latter was constrained to proceed with the matter and dismiss the appeal, observing as under: “6. In light of the above details of non-compliance and non- pursuance of appeal, reference is made to the following judicial ruling of the Hon'ble Apex Court. In CIT vs. B.N. Bhattacharya (1977) 118 ITR 461(SC), the Hon'ble Supreme Court while dealing with the issue of pursuing of appeal has stated that \"preferring an appeal means more than formally filing it but 5 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 effectively pursuing it\". The Hon'ble ITAT, Delhi, in CIT vs. Multiplan India Pvt. Ltd., as reported in 38 ITD 320 (Delhi), when faced with a similar situation of non- pursuing of appeal dismissed the appeal of Revenue. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in the following maxin- \"vigilantibus non dormientibus jura subveniunt\". In view of the above, it is clear that the appellant is not interested in pursuing this appeal. Therefore, the appeal filed by the appellant is dismissed. 7. Further, on merits of the case, the Assessing Officer in his assessment order dated 24.12.2018, has stated that:- \"It is one of the cases under M/s Mukesh Goyal & Sons (HUF), Shri Mukesh Goyal and Smt. Seema Goyal, in which an action U/s 132A of the Income Tax Act, 1961 was undertaken on 16.12.2016 for seizing the cash from the possession of Shri Mukesh Goyal, Snit. Seema Goyal and M/s Mukesh Goyal & Sons after getting the warrant of Authorization from the Pr. Director of Income Tax (Inv.), Raipur on 07.02.2016. ……………. ……………. Shri Mukesh Goyal stated that this cash belongs to them i.e. Rs. 4,00,000/- of M/s Mukesh Goyal & Sons (HUF), Rs. 7,00,000/- of Smt. Seema Goyal, W/o Shri Mukesh Goyal and Rs. 9,00,000/- of Shri Mukesh Goyal (Self). When asked to produce documentary evidence in support of their claim and ultimately offered to surrender the whole amounting Rs. 20,00,000/- (i.e. Rs. 4,00,000/-, Rs. 7,00,000/- and Rs. 9,00,000/-) as their undisclosed income for F.Y. 2016- 17 relevant to A.Y. 2017-18 under Pradhanmantri Gareeb Kalyan Yojna (PMGKY)-2016 and also three amount of Rs. 4,00,000/-, Rs. 7,00,000/- and Rs. 9,00,000/- deposited respectively in the PD account of Pr. CIT, Bilaspur on 16.12.2016. Thereafter Shri Mukesh Goyal has admitted as per his affidavit declaration under PMGKY-2016 that the total amount of Rs. 20,00,000/- only in his name and same has been surrendered under PMGKY Scheme, 2016. …………………… …………………… In this case Shri Mukesh Goyal himself from this group has surrendered total amount of Rs.20,00,000/- by his hand. But 6 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 challan of Rs.4,00,000/- deposited on 16.12.2016 in the name of M/s Mukesh Goyal & Sons (HUF). Due to the matter being time barring, considering the above facts and circumstances Rs.4,00,000/- is added to the total income of the assessee M/s Mukesh Goyal & Sons (HUF) on protective basis and deemed income U/s 69A of the Income Tax Act, 1961 and tax calculation U/s 115BBE of the Income Tax Act,1961.\" 8. In view of the above facts and circumstances of the case, it is held that the proper opportunity was given to appellant at the time of assessment proceedings as well as appellate proceedings to furnish the necessary details/documentary evidences in support of his case but the appellant has failed to produce any supporting material in this regard. Hence, in view of the above and on the basis of the detailed findings and reasons given by the AO in his assessment order, which have not been countered by the appellant and no evidence to the contrary has been submitted either at the stage of assessment or appeal which has been pending for more than 4 years, I uphold thy; addition made by the Assessing Officer , in the absence of any documentary evidences to rebut the findings made in order dated 24.12.2018. Accordingly, the issue is decided against the appellant and the grounds of appeal in this regard are dismissed. 9.1n the result, appeal is treated as dismissed.” 7. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before the Tribunal. 8. I have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his contentions. 9. Shri Yogesh Sethia, Ld. Authorized Representative (for short ‘AR’) for the assessee at the threshold submitted that he is not pressing the Ground 7 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 of appeal No.3. Considering the concession of the Ld. AR, the Ground of appeal No.3 is dismissed as not pressed. 10. Admittedly, it is a matter of fact borne from record that as the assessee had failed to participate in the proceedings before the first appellate authority, therefore, the latter had dismissed the appeal for want of prosecution. Although the CIT(Appeals) had culled out the observations of the A.O and thereafter, approved the view taken by the A.O, but I am of the view that the same is devoid and bereft of any reasoning. Although the assessee in its “Grounds of appeal” had specifically assailed the addition of Rs.4 lacs u/s. 69A of the Act claiming that Shri Mukesh Goyal (Individual) had explained the amount of Rs.2 lacs and further offered an amount of Rs.18 lacs in PMGKY, 2016 and paid taxes and penalty on the said amount, but the CIT(Appeals) had failed to take cognizance of the said specific averment and had dismissed the appeal for want of prosecution. I find that the assessee had specifically stated before the CIT(Appeals) that now when the amount of Rs.4 lacs had been explained/offered for tax in the hands of Shri Mukesh Goyal (Individual), therefore, the addition of the same in its hands would result to double taxation, but the same was not looked into by him. 11. Considering the fact that as the CIT(Appeals) had disposed off the appeal for non-prosecution, and had failed to apply his mind to the issue 8 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 which did arise from the impugned order and was assailed by the assessee before him, therefore, I am unable to persuade myself to subscribe to the same. Ostensibly, the order passed by the CIT(Appeals) reveals beyond doubt that he had summarily approved the view taken by the A.O and not adverted to and addressed the specific grounds of appeal that were raised by the assessee before him. At this stage, it would be relevant to point out that the assessee had, inter alia, stated before the CIT(Appeals) that Shri Mukesh Goyal (individual) had duly explained the amount of Rs.2 lacs and offered the balance amount of Rs.18 lacs ( out of Rs.20 lacs) for tax under the PMGKY Scheme, 2016, on which taxes and penalty was paid by him, therefore, there was no justification for making addition of Rs.4 lacs ( out of Rs.20 lacs) by treating the same as unexplained money of the assessee (HUF) u/s. 69A of the Act. I am of a firm conviction that the CIT(Appeals) in the backdrop of the aforesaid material aspect remained under a bounden duty to have called for the assessment records and verified the correct factual position as was canvassed by the assessee (HUF) before him. However, I find that the CIT(Appeals) had summarily endorsed the view taken by the A.O merely for the reason that the assessee had failed to participate in the proceedings before him. 12. Considering the fact that the appeal of the assessee (HUF) had been disposed off by the CIT(Appeals) without adverting to the specific grounds, 9 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 based on which, the impugned addition was specifically assailed before him, I am of the view that the matter, in all fairness, requires to be restored to his file for de novo adjudication. Needless to say, the CIT(Appeals) shall afford a reasonable opportunity of being heard to the assessee in the course of the de-novo appellate proceedings. As it is stated by the Ld. AR that the appeal in the case of Shri Mukesh Goyal (Individual) wherein substantive addition had been made is also pending before the CIT(Appeals), therefore, it is directed that if that be so, then, the present appeal of the assessee before me, i.e. Shri Mukesh Goyal & Sons (HUF) in all fairness be taken up and disposed off along with the said appeal. Thus, the Grounds of Appeal Nos.1 & 2 raised by the assessee are allowed for statistical purposes in terms of the aforesaid observations. 13. Ground of appeal No.4 i.e. initiating proceedings u/s. 271(1)(c) of the Act being premature is accordingly dismissed. 14. Grounds of appeal Nos. 5 & 6 being general in nature are dismissed as not pressed. 10 Mukesh Goyal & Sons Vs. ITO, Ward-2(2), Bilaspur ITA No. 389/RPR/2023 15. In the result, the appeal filed by the assessee is allowed for statistical purposes in terms of the aforesaid observations. Order pronounced in open court on 25th day of November, 2024. Sd/- (रवीश सूद /RAVISH SOOD) ÛयाǓयक सदèय/JUDICIAL MEMBER रायपुर/ RAIPUR ; Ǒदनांक / Dated : 25th November, 2024. ****SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G) 4. The Pr. CIT-1, Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण,रायपुर बɅच, रायपुर / DR, ITAT, Raipur Bench, Raipur. 6. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur. "