ACIT, Agra v. Sh. Kulbir Singh, Agra

ITA 222/AGR/2009 | 2003-2004
Pronouncement Date: 09-03-2011 | Result: Dismissed

Appeal Details

RSA Number 22220314 RSA 2009
Assessee PAN ALKPS5168G
Bench Agra
Appeal Number ITA 222/AGR/2009
Duration Of Justice 1 year(s) 9 month(s) 22 day(s)
Appellant ACIT, Agra
Respondent Sh. Kulbir Singh, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 09-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 09-03-2011
Date Of Final Hearing 09-03-2011
Next Hearing Date 09-03-2011
Assessment Year 2003-2004
Appeal Filed On 18-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO.222/AGR/2009 ASST. YEAR: 2003-04 ASSTT. COMMISSIONER OF INCOME TAX VS. SHRI KULBIR SINGH CIRCLE 1 AGRA. PROP. M/S ROGER EXPORT 7-A/8-B DEV NAGAR BYEPASS ROAD AGRA. (PAN : ALKPS 5168 G). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD KUMAR JR. D.R. RESPONDENT BY : SHRI MRADUL PATHAK. C.A. ORDER PER H.S. SIDHU J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER DATED 06.03.2009 PASSED BY THE LD. CIT(A) AGRA ON THE FOLLOWING GRO UNDS :- 1(A) THAT THE CIT (APPEALS)-1 AGRA HAS ERRED IN L AW AND ON FACTS IN CANCELING ORDER DATED 20-12-2007 U/S 143(3)/263 OF I.T. ACT 1961 SIMPLY ON THE GROUND THAT ORDER U/S 263 OF IT ACT 1961 DATED 23-11- 2006 OF CIT-1 AGRA HAS BEEN CANCELLED THE HONBLE TRIBUNAL VIDE ITS ORDER DATED 05-1-2009 IN ITA NO.48/AGR/2007; (B) IN DOING SO THE CIT (APPEALS)-1 AGRA HAS ERRED IN LAW AND ON FACTS IGNORING THE FACT THAT THE PERIOD OF LIMITATI ON AVAILABLE TO THE DEPARTMENT AS PER PROVISIONS OF IT ACT 1961 FOR FI LING OF APPEAL U/S 2 260A OF THE IT ACT 1961 AGAINST THE SAID ORDER OF HONBLE ITAT HAS NOT YET EXPIRED. THE DEPARTMENT IS CONTEMPLATING FILIN G OF APPEAL U/S 260A OF IT ACT 1961 AGAINST SAID ORDER DATED 12-11-2008 OF HONBLE ITAT. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY ONE OR MORE GROUND(S) OF APPEAL DURING T HE APPELLATE PROCEEDINGS. 3. THAT THE ORDER OF THE CIT (APPEALS)-1 AGRA BEIN G ERRONEOUS IN LAW AND ON FACTS BE SET ASIDE AND THAT THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 2. THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE ARE THAT THE ASSESSING OFFICER ORIGINALLY COMPLETED THE ASSESSMENT UNDER SECTION 1 43(3) OF THE INCOME TAX ACT 1961 (THE ACT HEREINAFTER) ON 20.06.2005 DETERMIN ING THE TOTAL INCOME AT ` 1 96 52 955/- AND SUBSEQUENTLY THE CIT-I AGRA PASS ED AN ORDER DATED 23.11.2006 UNDER SECTION 263 OF THE ACT AND SET ASIDE THE ORIG INAL ASSESSMENT ORDER BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E WITH THE DIRECTION TO THE ASSESSING OFFICER TO COMPLETE THE SAME AFTER VERIFY ING THE CREDITWORTHINESS OF THE 8 CREDITORS NAMELY :- 1. MADHURANI BANSAL ` 1 50 000/- 2. SMT. ANJU BANSAL ` 5 00 000/- 3. SHRI MANISH KUMAR BANSAL ` 1 00 000/- 4. SMT. PUSHPA DEVI ` 2 50 000/- 5. SMT. RAJNI JAIN ` 2 50 000/- 6. M/S DEVKI NANDAN AGARWAL & CO. ` 2 50 000/- 7. SHRI NARENDRA KUMAR AGARWAL ` 1 50 000/- 8. SHRI AMIT KUMAR BANSAL ` 1 50 000/- 3 3. IN COMPLIANCE OF THE SAME THE ASSESSING OFFICER EXAMINED THE MATTER AS DIRECTED BY THE CIT-I AGRA AND LASTLY TREATED THE CREDITS AT SL. NOS 1 3 6 7 & 8 ABOVE AS UNEXPLAINED CREDITS UNDER SECTION 68 OF T HE ACT. BUT IN THE MEANTIME THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL AGAINS T THE ORDER DATED 23.11.2006 PASSED UNDER SECTION 263 OF THE ACT BY THE CIT-I AN D THE ITAT AGRA BENCH PASSED AN ORDER DATED 16.10.2007 IN WHICH THE LD. JUDICIAL MEMBER HELD THAT THE ASSESSEES APPEAL IS ALLOWABLE WHEREAS THE LD. ACCOUNTANT MEMB ER DISSENTED THEREFROM. THE DISSENTING DECISION DATED 16.10.2007 WAS REFERRED T O THE ZONAL VICE PRESIDENT ON 11.12.2007 AND THE ZONAL VICE PRESIDENT APPOINTED L D. THIRD MEMBER VIDE ORDER DATED 17.01.2008 AND THE LD. THIRD MEMBER PASSED AN ORDER DATED 23.12.2008. THE RELEVANT PORTION OF THE SAME IS REPRODUCED AS UNDER :- THE CASH CREDITORS ARE IDENTIFIED. THEY HAVE ALSO FURNISHED THE PROOF OF SOURCE FROM WHICH THEY HAVE OFFERED THE CR EDITS TO THE ASSESSEE AND MOST OF THE CASES THEY WERE ALL ASSESSED TO TAX . IN A SITUATION LIKE THIS IT IS FOR THE ASSESSING OFFICER TO CHOOSE WHA T HE WANTS FROM OUT OF SUCH DETAILS. IF HE IS NOT SATISFIED WITH THE CRED ITWORTHINESS OF ANY OF THE CREDITORS HE COULD HAVE MADE AN ADDITION IN THEIR HANDS. SO FAR AS THE ASSESSEE IS CONCERNED IT HAS COME FROM KNOWN SOURC E WHICH HAS BEEN PROPERLY EXPLAINED. MOREOVER IN ALL THESE CASES THE TRANSACTIONS HAVE BEEN CONDUCTED THROUGH REGULAR BANKING CHANNELS. F ROM THE PERUSAL OF THE RECORDS THAT WERE THERE BEFORE THE ASSESSING OF FICER IT CANNOT BE SAID THAT THE ASSESSING OFFICER DID NOT MAKE ANY EN QUIRY. IT CAN ONLY BE SAID HE DID NOT REACH THE SAME CONCLUSION AS THE CO MMISSIONER OF INCOME-TAX HAS DONE. HAVING REGARD TO THE FACTS AN D DETAILS THAT WERE THERE BEFORE HIM HE WOULD HAVE LEFT WITH NO OTHER ALTERNATIVE BUT TO DEFINITE CONCLUSION THAT THE CASH CREDITS DESERVE T O BE ACCEPTED. I 4 THEREFORE AGREE WITH THE FINDINGS OF THE LD. JUDIC IAL MEMBER. THE MATTER WILL NOW GO BACK TO THE DIVISION BENCH. 4. IN COMPLIANCE OF THE AFORESAID ORDER THE DIVISI ON BENCH ON 05.01.2009 CONCLUDED AS UNDER :- IN THIS CASE THERE WAS A DIFFERENCE OF OPINION B ETWEEN THE MEMBERS CONSTITUTING THE ORIGINAL BENCH. THE LD. J UDICIAL MEMBER HAD ALLOWED THE APPEAL BY THE ASSESSEE WHEREAS THE LD. ACCOUNTANT MEMBER HAD DISMISSED THE APPEAL. THE LEARNED THIRD MEMBER HAS AGREED WITH THE VIEW TAKEN BY THE LEARNED JUDICIAL MEMBER. THU S IN THE LIGHT OF THE MAJORITY VIEW THE APPEAL OF THE ASSESSEE STANDS AL LOWED. 5. KEEPING IN VIEW OF THE AFORESAID MAJORITY DECISI ON OF THE BENCH DATED 05.01.2009 THE CIT(A)-I AGRA RESPECTFULLY FOLLOW ING THE SAME HAS CANCELLED THE IMPUGNED ASSESSMENT WHICH HAS BEEN COMPLETED IN PU RSUANCE OF THE ORDER PASSED BY THE CIT-I AGRA DATED 23.11.2006 UNDER SECTION 2 63 OF THE ACT BY THE IMPUGNED ORDER DATED 06.03.2009. THE REVENUE AGGRIEVED BY THE SAME HAS FILED THE PRESET APPEAL. 6. AT THE TIME OF HEARING THE LD. D.R. STATED THAT THE CIT(A) HAS WRONGLY CANCELLED THE ORDER DATED 20.12.2007 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3)/263 OF THE ACT ONLY ON THE GROUND THAT THE O RDER UNDER SECTION 263 OF THE ACT DATED 23.11.2006 OF CIT-I AGRA HAS BEEN CANCELLED BY THE TRIBUNAL VIDE ITS ORDER 5 DATED 05.01.2009. HE FURTHER STATED THAT THE DEPAR TMENT IS CONTEMPLATING FILING OF APPEAL AGAINST THE ORDER DATED 12.11.2008 PASSED BY THE TRIBUNAL. INSPITE OF THE SAME THE CIT(A) AGRA HAS PASSED THE IMPUGNED ORDER WHICH DESERVES TO BE CANCELLED. 7. ON THE CONTRARY THE LD COUNSEL FOR THE ASSESSEE CONTROVERTED THE ARGUMENTS ADVANCED BY THE LD. D.R. AND STATED THAT THE ASSESS ING OFFICER HAS COMPLETED THE ASSESSMENT ON 20.12.2007 IN COMPLIANCE OF THE DIREC TIONS OF THE CIT-IS ORDER DATED 23.11.2006 PASSED UNDER SECTION 263 OF THE ACT WHIC H HAS ULTIMATELY BEEN CANCELLED BY THE TRIBUNAL ON THE APPEAL FILED BY THE ASSESSEE . IT MEANS THE ORDER DATED 23.11.2006 PASSED BY THE CIT-I AGRA UNDER SECTION 263 OF THE ACT IS NO MORE. THEREFORE THE LD. CIT(A) AGRA HAS RIGHTLY CANCELL ED THE ASSESSMENT BY ACCEPTING THE APPEAL OF THE ASSESSEE. FINALLY HE RELIED UPON THE IMPUGNED ORDER. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US ESPECIALLY THE ORIGINAL ASSESSMENT ORDER DATED 20.06.2005 PASSED UNDER SECTION 143(3) OF THE ACT AND SUBSEQUENTLY THE CIT-I AGRA V IDE ORDER DATED 23.11.2006 PASSED UNDER SECTION 263 OF THE ACT IN WHICH THE LD . CIT-1 AGRA DIRECTED THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT AFTER VERIFYING THE CREDITWORTHINESS OF 8 CREDITORS. AGGRIEVED BY THE ORDER DATED 23.11.20 06 (SUPRA) THE ASSESSES FILED AN 6 APPEAL BEFORE THE TRIBUNAL AND FINALLY ON 05.01.200 9 THE BENCH DECIDED THE APPEAL OF THE ASSESSEE AND ACCEPTED THE EXPLANATION OF THE ASSESSEE ON THE ISSUE OF CASH CREDITS AND DECIDED THE ISSUE IN DISPUTE IN FAVOUR OF THE ASSESSEE. THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY PASSED THE IMPUGNED ORDER BY RESPECTFULLY FOLLOWING THE ORDER DATED 05.01.2009 PASSED BY THE TRIBUNAL. BUT THE REVENUE HAS FILED PRESENT APPEAL IN A ROUTINE MANNER WITHOUT ANY PLAU SIBLE REASONS AND GROUNDS WHICH ARE NOT APPRECIATED BY THIS BENCH BECAUSE THE DEPAR TMENT HAS FILED THE PRESENT APPEAL IN A ROUTINE MANNER ONLY TO KEEP THE MATTER ALIVE EVEN WITHOUT SEEKING ANY LEGAL REMEDY AGAINST THE ORDER FOR WHICH THEY ARE A GGRIEVED. THIS APPEAL HAS BEEN FILED BY THE DEPARTMENT ON 18.05.2009 WITH PLEADING THAT THE DEPARTMENT IS CONTEMPLATING FILING OF APPEAL UNDER SECTION 260A O F THE ACT AGAINST THE ORDER DATED 12.11.2008 OF THE ITAT. TILL DATE THE DEPARTMENT HAS FAILED TO PRODUCE ANY EVIDENCE BEFORE US WHETHER THEY HAVE FILED ANY APPE AL BEFORE THE HONBLE HIGH COURT OR NOT. THE LD. COUNSEL FOR THE ASSESSEE STA TED THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE FROM THE HONBLE HIGH COURT ON THE SUBJECT IN DISPUTE. ON THE CONTRARY THE LD. D.R. HAS ALSO NOT EVEN STATED THA T WHETHER THE DEPARTMENT HAS FILED ANY APPEAL BEFORE THE HONBLE HIGH COURT OR NOT. T HE LD. CIT-I AGRA VIDE ORDER DATED 08.05.2009 ISSUED DIRECTIONS TO THE ACIT-I AG RA (ASSESSING OFFICER) TO FILE APPEAL BEFORE THIS TRIBUNAL AGAINST THE IMPUGNED OR DER IN A ROUTINE MANNER WITHOUT APPLYING HIS MIND WHICH CREATED UNNECESSARY LITIGAT ION AND COMPELLED THE ASSESSEE 7 TO ENGAGE THE COUNSEL AND MAKE EXPENDITURE WHICH IS NOT APPRECIATED ON THE PART OF COMPETENT AUTHORITY. FOR READY REFERENCE ORDER DA TED 08.05.2009 PASSED BY THE LD. CIT-I AGRA IS REPRODUCED AS UNDER :- GOVERNMENT OF INDIA MINISTRY OF FINANCE OFICE OF THE COMMISSIONER OF INCOME-TAX-I SANJAY PLACE AGRA APPEAL TO THE INCOME-TAX APPELLATE TRIBUNAL- FILING OF APPEAL BY THE DEPARTMENT DIRECTION FOR I HAVE EXAMINED THE RECORDS OF SHRI KULBIR SINGH P ROP. M/S ROGER EXPORTS 7-A/8-B DEV NAGAR AGRA (PAN: ALKPS 5168 G) . I AM OF THE OPINION THAT THE ORDER DATED 06.03.2009 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-I AGRA IN APP EAL NO.452/CIT(A)-1/AGRA/DCIT-1/AGRA/2007-08 IN RESPECT OF ASSESSMENT YEAR 2003-04 IS ERRONEOUS IN LAW AND ON FACTS. I THEREFORE UNDER SECTION 253(2) OF INCOME-TAX AC T 1961 DIRECT THE ASSISTANT COMMISSIONER OF INCOME-TAX-1 AGRA (A SSESSING OFFICER) TO FILE AN APPEAL BEFORE THE INCOME-TAX APPELLATE T RIBUNAL AGRA AGAINST THE SAID ORDER OF THE COMMISSIONER OF INCOM E TAX (APPEALS)-I AGRA. THE COPY OF THE ORDER IN QUESTION WAS RECEIV ED ON 20.03.2009. THE LAST DATE FOR FILING OF THE DEPARTMENTAL APPEAL IS THEREFORE 18.05.2009. DATED: SD/- 08.05.2009 (DIGVIJAI KUMAR) COMMISSIONER OF INCOME TAX-1 AGRA 9. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES E XPLAINED ABOVE WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUT HORITY HAS RIGHTLY PASSED THE 8 IMPUGNED ORDER DATED 06.03.2009 ON THE BASIS OF THE DECISION OF ITAT DATED 05.01.2009 IN WHICH THIS BENCH HAS FINALLY CANCELLE D THE ORDER UNDER SECTION 263 OF THE ACT. THEREFORE WE UPHOLD THE IMPUGNED ORDER D ATED 06.03.2009 PASSED BY THE LD. FIRST APPELLATE AUTHORITY BY DISMISSING THE APP EAL FILED BY THE DEPARTMENT. 10. WE HAVE ALREADY DISCUSSED IN THE FOREGOING PARA GRAPHS THAT THE DEPARTMENT HAS FILED THE PRESENT APPEAL IN A ROUTINE MANNER TO KEEP THE ISSUE IN DISPUTE ALIVE WITHOUT ANY REASONABLE GROUND. THE REVENUE HAS FIL ED THE PRESENT APPEAL BY PLEADING THAT THE DEPARTMENT IS CONTEMPLATING FILIN G OF APPEAL UNDER SECTION 260A OF THE ACT AGAINST THE ORDER DATED 12.11.2008 PASSED B Y THE ITAT. THE PRESENT APPEAL HAS BEEN FILED BY THE DEPARTMENT ON 18.05.2009 AND TILL DATE THEY HAVE NOT PRODUCED ANY EVIDENCE BEFORE US PROVING THAT THE DEPARTMENT HAS FILED ANY APPEAL AGAINST THE ORDER RELIED BY THE LD. CIT(A) IN THE IMPUGNED ORDE R. EVEN OTHERWISE MERELY FILING APPEAL AGAINST THE ORDER OF THIS BENCH DOES NOT MEA N THAT THE DEPARTMENT IS NOT DUTY BOUND TO COMPLY THE ORDER OF THIS BENCH UNTIL THEY GET STAY OF THE ORDER OF THIS BENCH. BUT IN THE PRESENT CASE THE LD. D.R. HAS NOT FILED ANY EVIDENCE SUPPORTING THE VERSION OF THE DEPARTMENT AND EVEN HE COULD NOT MAKE US KNOWN THAT WHETHER THE DEPARTMENT HAS FILED APPEAL OR NOT TILL DATE FR OM THE DATE OF FILING THE PRESENT APPEAL I.E. 18.05.2009. IN THE PRESENT CASE THE L D. CIT(A) HAS CANCELLED THE ASSESSMENT WHICH HAS BEEN FRAMED IN PURSUANCE OF TH E ORDER PASSED BY THE CIT-I 9 AGRA ON 23.11.2006 UNDER SECTION 263 OF THE ACT DIR ECTING THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT AFTER VERIFYING THE 8 CREDI TORS. IN COMPLIANCE OF THE SAME THE ASSESSING OFFICER COMPLETED THE ASSESSMENT IN D ISPUTE BUT LATER ON ON THE ASSESSEES APPEAL THE MAIN ORDER OF THE CIT-I AGR A DATED 23.11.2006 PASSED UNDER SECTION 263 OF THE ACT HAS BEEN CANCELLED BY THIS B ENCH ON 05.01.2009. THUS THE LD. CIT(A) HAS CANCELLED THE ASSESSMENT ORDER IN DISPUT E. INSPITE OF THE AFORESAID FACTS THE DEPARTMENT HAS FILED THE PRESENT APPEAL BY NOT ACCEPTING THE ORDER OF THIS BENCH ON THE GROUND THAT THE DEPARTMENT IS CONTEMPLATING FILING OF APPEAL UNDER SECTION 260A OF THE ACT AGAINST THE ORDER OF THIS BENCH. B UT TILL DATE THE SAME HAS NOT BEEN FILED. THESE FACTS SHOW THAT HOW MUCH RESPECT THE DEPARTMENT IS PAYING TO THE TRIBUNAL ORDER. 11. IT IS WELL SETTLED PROPOSITION THAT THE ORDERS OF THE TRIBUNAL AND THE HONBLE HIGH COURT ARE BINDING UPON THE REVENUE AUTHORITIES AND SINCE THEY ACT IN A QUASI- JUDICIAL CAPACITY THE DISCIPLINE OF SUCH FUNCTIONI NG DEMANDS THAT THEY SHOULD FOLLOW THE DECISION OF THE TRIBUNAL OR THE HONBLE HIGH CO URT AS THE CASE MAY BE. THEY CANNOT IGNORE IT MERELY ON THE GROUND THAT THE DECI SION OF THE TRIBUNAL IS THE SUBJECT- MATTER OF REVISION IN THE HONBLE HIGH COURT UNTIL THE AUTHORITY IS IN POSSESSION OF ANY STAY ORDER FROM THE HIGHER AUTHORITY. THEY HAV E TO FOLLOW THE ORDERS OF THE SUPERIOR AUTHORITY EVEN IF THEY HAVE SOME RESERVATI ON ON THE ISSUE IN DISPUTE BEFORE 10 THEM. IN THE PRESENT CASE THE AVERMENT OF THE DEP ARTMENT IS THAT THE DEPARTMENT IS CONTEMPLATING FILING OF APPEAL UNDER SECTION 260A O F THE ACT AGAINST THE ORDER OF THIS BENCH WHICH HAS BEEN FOLLOWED BY THE CIT(A) WH ILE PASSING THE IMPUGNED ORDER DATED 06.03.2009 BUT THE LD. D.R. HAS NOT FI LED ANY EVIDENCE EVEN AFTER THE PERIOD OF MORE THAN ONE YEAR AND 9 MONTHS. THE AFO RESAID PLEA OF THE DEPARTMENT IN FILING THE PRESENT APPEAL IS CONTRARY TO THE LAW AN D FACTS ON THE FILE AND ESPECIALLY THE VARIOUS DECISIONS RENDERED BY THE HONBLE HIGH COUR TS WHICH INCLUDES THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF K.N. AGARWAL VS. CIT 189 ITR 769 (ALL.) AND CIT VS. LATE SUNDERLAL (THROUGH BANKEY B EHARI LAL) 96 ITR 310 (ALL.). 12. KEEPING IN VIEW OF THE AFORESAID DISCUSSIONS W E ARE OF THE CONSIDERED OPINION THAT THE PRESENT CASE IS FIT FOR IMPOSING COST UPON THE DEPARTMENT UNDER SECTION 254(2B) OF THE ACT. THEREFORE WE IMPOSE THE COST OF ` 1 000/- UPON THE DEPARTMENT WHICH SHALL BE PAID TO THE ASSESSEE. 13. IN THE RESULT APPEAL FILED BY THE DEPARTMENT I S DISMISSED WITH COST. (ORDER PRONOUNCED IN THE OPEN COURT ON 09.03.201 1). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 9 TH MARCH 2011 PBN/* 11 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL AGRA TRUE COPY