Income Tax Appellate Tribunal - Indore
The Ito,, Dhar vs Shri Shailendra Kumar Jaiswal, Dhar on 11 January, 2017
आयकर अपील य अ धकरण, इ दौर यायपीठ, इ दौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE ी डी.ट .गरा सया, या यक सद य तथा ी ओ.पी.मीना, लेखा सद य के सम% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER आ.अ.सं./ I.T.A. No. 561/Ind/2016 %नधा'रण वष' /Assessment Year: 2011-12 Income-tax Officer, Shri Shailendra Kumar Dhar Vs. Jaiswal, Sundrel, Teh. Dharampuri, Distt. Dhar.
था.ले.सं./PAN: AGSPJ5118J अपीलाथ /Appellant यथ /Respondent अपीलाथ क ओर से/Appellant by Shri Rajeev Jain, DR यथ क ओर से/Respondent by Shri C.P.Rawka, CA सुनवाई क तार ख 05.01.2017 Date of hearing उ घोषणा क तार ख 11.01.2017 Date of pronouncement आदे श /O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR.
This appeal is filed by the Revenue against the order of ld. Commissioner of Income-tax (Appeals)-I, Indore [hereinafter I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 2 of 10 referred to as the CIT(A)] dated 26.02.2016 and pertains to assessment year 2008-09 as against appeal decided in assessment order passed u/s 144 of the Act dated 14.03.2014 of ITO, Dhar[hereinafter referred to as the AO].
2. The Revenue has taken the following grounds of appeal :-
1. Whether in the facts and circumstances, the ld.
CIT(A) erred in contradicting his findings that the order u/s 144 was justified in the facts of the case, by calling for a remand report from the AO.
2. Whether in the facts and circumstances, the ld. CIT(A) erred in law after coming to the conclusion that order u/s 1`44 was justified should have upheld the assessment order where the AO had considered all the facts of the case.
3. Whether in the facts and circumstances, the ld. CIT(A) erred in law by allowing the appeal of the assessee by ignoring the very fact that the assessee was allowed ample opportunities to attend this case I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 3 of 10 but he did not attend and the AO was compelled to pass order u/s 144 of the Income-tax Act, 1961.
4. Whether in the facts and circumstances in the case the ld. CIT(A) erred in calling for remand report even after holding that the order passed u/s 144 of the Income-tax Act, 1961, was justified.
5. Whether in the facts and circumstances, the ld. CIT(A) erred in law by directing the AO to verify the claim of deduction under chapter VIA and then allowed the said deduction, the CIT(A) has in effect set aside the order which is not permissible under the Act.
3. Briefly stated, the facts of the case are that the assessee is an individual and derives income from liquor business. The assessee has filed his return of income on 30.09.2011 disclosing total income at Rs. 6,90,040/-. The AO required the assessee to furnish the details of purchase and sales and explain the source of expenses claimed and details of sundry creditors with confirmation. However, having been I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 4 of 10 allowed various opportunities of being heard, the assessee has failed to comply. Therefore, the AO was forced to make assessment u/s 144 of the Act. Accordingly, the AO assessed income at Rs. 1,08,13,774/- by making various additions.
4. Being aggrieved, the assessee has filed the appeal before the CIT(A).
5. During the course of appellate proceedings, the assessee has filed written submission vide letter dated 30.04.2015 and 19.10.2015, giving various details and additional evidences. The ld. CIT(A) observed that the AO has allowed the number of opportunities fixing the date of hearing on 23.12.2013, 05.02.2014, but requisite details were not furnished. Therefore, the ld. CIT(A) upheld that the sufficient opportunity was provided to the assessee. Therefore, the AO was justified in framing the assessment u/s 144 of the Act. The ld. CIT(A) has also called for the comments of the AO by way of remand report and dealt with various issues and deleted the addition of Rs. 1 lakh of disallowances made under Chapter VIA subject to verification. The ld. CIT(A) further I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 5 of 10 deleted the addition of Rs. 55,19,272/- being cash deposits in Bank account with State Bank of India after considering the remand report and also deleted the addition of Rs. 9,09,057/- being estimated profit. Similarly, the addition of Rs. 8,80,035/- being basic licence fee unexplained and Rs. 25,150/- being penalty debited in profit and loss account was also came to be deleted and addition on account of sundry creditors amounting to Rs. 7,80,000/- was restricted to Rs. 1,80,000/-. Similarly, the addition of Rs. 6 lakhs pertaining to credit amount in the name of Phool Badan Singh was deleted and addition of Rs. 4,96,400/- being investment for advances for flat was also deleted.
6. Being aggrieved, the Revenue has filed this appeal by taking the grounds that the ld. CIT(A) was not justified in deleting the additions made by the AO, while upholding the finding that the order u/s 144 was justified in the facts of the case. The Ld. Sr. DR further argued that the ld. CIT(A) has admitted the additional evidences without giving findings and reasons for admission of the same. Therefore, the view taken I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 6 of 10 by the ld. CIT(A) is contradictory in itself as at the same time he is upholding the action of the AO in framing the assessment u/s 144 of the Act and on the other hand, the additional evidences are admitted and additions made by the AO are being deleted on the basis of remand report. The ld. Sr. DR has also submitted that the ld. CIT(A) has deleted the addition of Rs. 55 lakhs being cash deposited in State Bank of India after allowing set-off against the turnover and similarly, the addition of Rs. 4,96,400/- being advance against flats was deleted inspite of the AO having been reported that source of investment cannot be verified as the assessee has not submitted the cash book/bank reconciliation statement inspite of repeated reminders. The ld. Sr. DR has also placed reliance on the decision of Hon'ble Supreme Court in the case of Jyotsna Suri vs. I.T.A.T., (2003) 179 CTR ( S.C.) 265, wherein the Hon'ble Supreme Court has held as under :-
"2. The Tribunal has disposed of the appeal by its order of 3rd Jan.,1997, without considering the pending application under Rule 29 of the I.T.A.T. Rules, 1963, for I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 7 of 10 adducing additional evidence. Obviously, that application was required to be disposed of first before the Tribunal heard the appeal on merits. The appellant also undertakes to withdraw the pending application before the Tribunal for making a reference under Section 256(1) of the Income- tax Act, 1961, for the above purpose. In view thereof, we direct that the Tribunal should first dispose of the application under Rule 29 on merits and thereafter proceed to dispose of the appeal on merits. The order dated 3rd Jan.,1997,is, therefore, set-aside and the matter is remitted to the Tribunal for disposal on merit in accordance with law. The order of the High Court is set- aside as above and the appeal is disposed of accordingly."
7. In view of the above, it was submitted that the issue may be restored to the file of the AO for examination of additional evidence produced by the assessee after admitting additional evidence.
8. On the other hand, the ld. Authorized Representative of the assessee relied on the order of the CIT(A) and submitted I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 8 of 10 that the additions have been deleted after duly considering the remand report submitted by the AO vide letter dated 04.11.2015 and 28.01.2016. Therefore, the ld. Authorized Representative of the assessee supported the order of the CIT(A).
9. We have considered the facts, rival submissions and perused the material available on record. We find that the ld. CIT(A) has upheld framing the assessment made u/s 144 of the Income-tax Act, 1961, but on the same time, the ld. CIT(A) has deleted all the additions made by the AO without giving finding of admission regarding additional evidence produced by the assessee before him. We have also gone through the remand report and find that inspite of disallowances pertaining to salary expenses under Chapter VIA, cash credit of Rs. 6 lakhs in the name of Phool Badan Singh and cash deposits of Rs. 55 lakhs in the Bank account have been deleted on the basis of remand report favouring the assessee and licence fee of Rs. 8,80,035/- on the basis of estimate. However, the addition of Rs. 4,96,400/- being advance I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 9 of 10 against flat and addition on profit estimated was deleted without any reference of remand report. Considering these facts, we are of the considered opinion that without recording finding of admission of additional evidence by the assessee, there is a procedural lacuna in the order of the ld. CIT(A). Further, the confirmation of the framing of assessment u/s 144 of the Act and thereafter deleting the entire addition based on general observations on the remand report. The ld. CIT(A) was not justified in deleting the additions without recording the finding of the admission of additional evidences in the light of Hon'ble Supreme Court's decision in the case of Jyotsna Suri vs. I.T.A.T. (supra). Therefore, in the interest of justice and fair play, we deem it necessary to set-aside the whole issue to the file of AO to examine the additional evidences filed by the assessee and make the fresh assessment after allowing opportunity to the assessee. We also allow admission of additional evidence. Consequently, the appeal of the Revenue is set-aside. The AO will allow to furnish necessary details by the assessee and proper opportunity of being heard. I.T.A.No. 561/Ind/2016 A.Y. 2011-12 Shri Shailendra Kumar Jaiswal, Dhar Page 10 of 10
10. In the result, the appeal of the Revenue is allowed for statistical purposes.
The order has been pronounced in open court on the 11th January, 2017.
Sd/- Sd/-
(डी.ट .गरा सया) (ओ.पी.मीना)
या यक सद य लेखा सद य
(D.T.GARASIA) (O.P.MEENA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
*दनांक /Dated : 11thJanuary, 2017.
CPU*