Income Tax Officer-4(4), Lucknow v. Shri Shiv Kumar Sharma, Lucknow

ITA 725/LKW/2014 | 2010-2011
Pronouncement Date: 12-11-2014 | Result: Allowed

Appeal Details

RSA Number 72523714 RSA 2014
Assessee PAN AFSPS0843Q
Bench Lucknow
Appeal Number ITA 725/LKW/2014
Duration Of Justice 1 month(s) 27 day(s)
Appellant Income Tax Officer-4(4), Lucknow
Respondent Shri Shiv Kumar Sharma, Lucknow
Appeal Type Income Tax Appeal
Pronouncement Date 12-11-2014
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 12-11-2014
Assessment Year 2010-2011
Appeal Filed On 15-09-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI. A. K. GARODIA ACCOUNTANT MEMBER ITA NO.725/LKW/2014 ASSESSMENT YEAR:2010-11 INCOME TAX OFFICER 4(4) LUCKNOW V. SHIV KUMAR SHARMA C-4736 RAJAJIPURAM LUCKNOW PAN/PAN:AFSPS0843Q (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. P. K. DEY D.R. RESPONDENT BY: SHRI. S. P. SINGH ADVOCATE DATE OF HEARING: 03 11 2014 DATE OF PRONOUNCEMENT: 12 11 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE COMMISSIONER OF INCOME-TAX (APPEALS) LUCKNOW HAS ERRED IN LAW FACTS OF THE CASE IN REDUCING THE ADDITION AT RS.1 92 103/- AGAINST RS.18 26 073/- MADE BY THE ASSESSING OFFICER U/S 69 OF DIE INCOME TAX ACT 1961 AS UNEXPLAINED CASH CREDITS WITHOUT APPRECIATING THE FACTS DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE DID NOT ANY EVIDENCE REGARDING CASH DEPOSITS MADE IN HIS SAVING BANK ACCOUNT SUBSTANTIATING THAT THE AMOUNT SO DEPOSITED PERTAINED TO HIS BUSINESS RECEIPTS INSTEAD HE ABSTAINED HIMSELF FROM ATTENDING THE PROCEEDINGS THE ASSESSING OFFICER. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) LUCKNOW HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDENCE :- 2 -: WITHOUT GIVING AN AUTHORITY UNDER SECTION 250(4) OF THE ACT TO THE ASSESSING OFFICER TO EXAMINE AND CROSS VERIFY THE FACTS GIVEN BY THE BEFORE THE LD. CIT(A) IN VIEW OF THE RULES 46 A OF THE INCOME-TAX RULES 1962. 2. DURING THE COURSE OF HEARING THE LD. D.R. HAS INVITED OUR ATTENTION TO THE FACT THAT THE ASSESSMENT WAS FRAMED EX-PARTE UNDER SECTION 144/147 OF THE INCOME-TAX ACT 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). ON AIR INFORMATION IT WAS NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS MADE CASH DEPOSIT OF RS.18 2 073/- IN HIS BANK ACCOUNT WITH PUNJAB NATIONAL BANK. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF INVESTMENT BUT WHEN HE WAS FAILED TO EXPLAIN THE SAME THE ASSESSING OFFICER HAS MADE AN ADDITION OF THE DEPOSIT OF RS.18 26 070/- AS UNEXPLAINED CASH CREDIT UNDER SECTION 69 OF THE ACT. 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE ASSESSEE WAS DOING ITS BUSINESS AND THE DEPOSITS WERE SALE PROCEEDS OF THE BUSINESS RECEIPTS OUT OF WHICH ASSESSEE HAS MADE REGULAR WITHDRAWALS FROM THE SAID ACCOUNT. BEING CONVINCED WITH THE EXPLANATIONS OF THE ASSESSEE THE LD. CIT(A) DELETED THE ADDITION. 4. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. D.R. HAS FURTHER CONTENDED THAT THOUGH THE ASSESSEE HAS CLAIMED THAT THE DEPOSITS ARE THE SALE PROCEEDS OF THE GOODS BUT EVEN BEFORE THE LD. CIT(A) ASSESSEE COULD NOT EXPLAIN AS TO WHAT TYPE OF BUSINESS HE WAS DOING AND NO EVIDENCE WAS PLACED WITH REGARD TO THE GENUINENESS OF THE BUSINESS CARRIED ON BY THE ASSESSEE. IT WAS FURTHER CONTENDED THAT THOUGH THE REMAND REPORT WAS CALLED FOR BY THE LD. CIT(A) BUT THE RELEVANT EVIDENCE RELIED ON BY THE LD. CIT(A) WERE NOT CONFRONTED TO THE ASSESSING OFFICER. ONLY WRITTEN SUBMISSIONS WERE SUPPLIED TO THE ASSESSING OFFICER FOR HIS COMMENTS. THEREFORE THE LD. CIT(A) HAS ADMITTED EVIDENCE IN VIOLATION OF :- 3 -: THE PROVISIONS OF RULE 46A OF THE RULES. THEREFORE THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR RE-ADJUDICATION OF THE ENTIRE ISSUE IN THE LIGHT OF THE EVIDENCE FURNISHED BY THE ASSESSEE BEFORE THE LD. CIT(A). THE LD. D.R. HAS FURTHER CONTENDED THAT ONUS IS UPON THE ASSESSEE TO ESTABLISH THAT HE WAS DOING SOME BUSINESS AND THE DEPOSITS IN THE BANK WERE SALE PROCEEDS OF THE GOODS. 5. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE DEPOSITS IN THE BANK WERE MADE OUT OF SALE PROCEEDS OF THE GOODS IN WHICH ASSESSEE WAS CARRYING ON ITS BUSINESS. THEREFORE THE LD. CIT(A) HAS RIGHTLY ESTIMATED THE PROFIT OUT OF TOTAL TURNOVER AND RESTRICTED THE ADDITION TO RS.1 92 103/-. 6. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW WE FIND THAT THE ASSESSMENT WAS FRAMED UNDER SECTION 144/147 OF THE ACT AS THE ASSESSEE DESPITE OPPORTUNITIES NEITHER APPEARED NOR FURNISHED THE SOURCE OF DEPOSITS IN THE BANK. THE LD. CIT(A) HAS RELIED ON THE EXPLANATIONS FURNISHED BY THE ASSESSEE WITHOUT VERIFYING THE NATURE OF BUSINESS UNDERTAKEN BY THE ASSESSEE. THOUGH THE LD. CIT(A) HAS MENTIONED IN HIS ORDER THAT THE DEPOSITS WERE MADE ACCORDING TO THE ASSESSEE OUT OF SALE PROCEEDS OF THE GOODS BUT THERE IS NO DISCUSSION IN THE ORDER WITH REGARD TO THE NATURE OF BUSINESS UNDERTAKEN BY THE ASSESSEE. IN ORDER TO VERIFY THE CORRECTNESS OF THE STATEMENT OF THE ASSESSEE WITH REGARD TO CARRYING OF ANY BUSINESS SOME EVIDENCE IS REQUIRED TO BE PLACED ON RECORD. IN THE ABSENCE OF ANY EVIDENCE IT IS DIFFICULT TO ACCEPT THE CONTENTION OF THE ASSESSEE IN THIS REGARD. WE ARE THEREFORE OF THE VIEW THAT THE LD. CIT(A) HAS NOT APPRECIATED THE FACTS UNDER WHICH THE ADDITIONS WERE MADE BY THE ASSESSING OFFICER. HE HAS DELETED THE ADDITION HAVING RELIED UPON THE EVIDENCE WHICH WERE NOT CONFRONTED TO THE ASSESSING OFFICER. THEREFORE :- 4 -: WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD BE RE- ADJUDICATED AGAIN BY THE ASSESSING OFFICER IN THE LIGHT OF EVIDENCE FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). THE ASSESSEE IS ALSO AT LIBERTY TO FILE OTHER EVIDENCES TO ESTABLISH THE NATURE OF BUSINESS AND SOURCE OF DEPOSITS IN THE BANK. ACCORDINGLY THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE AFRESH IN TERMS INDICATED ABOVE. 7. IN THE RESULT APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:12 TH NOVEMBER 2014 JJ:0711 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR