Income Tax Appellate Tribunal - Allahabad
Roop Narayan Pandey, Sultanpur vs It Officer, Sultanpur on 28 November, 2022
IN THE INCOME TAX APPELLATE TRIBUNAL,
ALLAHABAD 'SMC' BENCH, ALLAHABAD
SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
ITA No.101/Alld./2019
Assessment Year:2011-12
Mr. Roop Narayan Pandey, Income Tax Officer,
Madanpura, PaniyarPur, v. Sultanpur-228001,U.P.
Pandeypur, Sultanpur,U.P.
PAN:AOHPP4841F
(Appellant) (Respondent)
Appellant by: None
Respondent by: Shri A.K. Singh, Sr. D.R.
Date of hearing: 28.11.2022
Date of pronouncement: 28.11.2022
ORDER
SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER:
This appeal, filed by assessee, being ITA No.101/Alld/2019, is directed against an appellate order dated 29.05.2019 in Appeal No.CIT(A)-Fzd/16- 17/Lko/44,passed by learned Commissioner of Income Tax (Appeals), Lucknow- 2, Lucknow(hereinafter called "theCIT(A)"),for assessment year(ay):2011-12, the appellate proceedings have arisen before ld. CIT(A) from assessment order dated 15.03.2016 passed by learned Assessing Officer(hereinafter called "the AO") u/s 147 read with Section 144 of the Income-tax Act, 1961(hereinafter called "the Act").
2. Before proceeding further, it will be appropriate at this stage to mention that appeal of the assessee in ITA No. 101/Alld/2019 for assessment year 2011-12 was earlier dismissed by Income Tax Appellate Tribunal, Allahabad Bench, SMC Bench , Allahabad , vide appellate order dated 15th July, 2021, by holding as under:-
1"This appeal of the assessee is directed against the order dated 29.05.2019 of Id. CIT(A) Lucknow for the A.Y. 2011-12.
2. None appeared on behalf of the assessee till the matter was taken up at the end of board. The hearing of the matter has been adjourned from time to time either due to none representation of the assessee or on the request of the assessee. On last seven occasion, the hearing of the case was adjourned due to non availability of the assessee and request of the assessee through application. On the last date of hearing i.e. 5th July 2021, the hearing was again adjourned at the request of the assessee and last opportunity was granted. Despite the last opportunity granted to the assesse neither anybody appeared on behalf of the assessee nor any adjourned application is filed. Accordingly, the appeal was taken up for hearing and adjudication exparte.
3. The assessee has raised the following grounds in this appeal.
"1. BECAUSE proceedings under section 147 have neither validity initiated nor conducted in accordance with the provisions of law and the assessment order dated 16.03.2016 as has been impugned in this appeal, is void ab-initio
2. BECAUSE otherwise also, the "reasons recorded" in the instant case are not relevant for assumption of jurisdiction for making reassessment under section 147and very initiation of proceedings under section 147 is illegal.
3. BECAUSE the Assessing Officer did not get jurisdiction to make assessment in pursuance of notice under section 148 said to have been issued on 08.08.2014 as no such notice was served on the appellant, in accordance with the provisions of the law.
4. BECAUSE the appellant belongs to a low class strata with limited means of livelihood and has never deposited such huge amount in the bank account maintained with HDFC Bank for the same to be utilized in trading activity of commodities, so the addition of Rs. 43,87,320/- made in his hand and the liability so created against him is erroneous and Is liable To be stuck down.
5. BECAUSE the entire transaction in the said bank account, although in the name of the appellant, same belongs to the person upon whom the entire livelihood of the appellant was dependent wholly and solely, the alleged transaction in the HDFC Account No. 09442560000449 cannot be taken as the basis for making an addition of sums aggregating to Rs. 43,87,320/- in the reassessment proceedings under section 147 of the act.
6. BECAUSE in view of the aforesaid ground no. 5 above, the entire withdrawal and deposit in the said bank account should be accessible in the hands of the person upon whom the appellant for his livelihood.2
7. BECAUSE for the ground no. 5 & 6 above, the appellant was prevented from appearing and representing the facts of his case before the Assessing Officer, so due alleged non-compliance an exparte order was passed by Assessing Officer and a huge addition of Rs. 43,87,320/- was made in his hand.
8. BECAUSE sum aggregating to Rs. 19,66,687/- forms part of the alleged deposits in bank account, ownership of which itself is in dispute, addition of Rs. 1,57,335/- (8% of 19,66,687) on such deposits is wholly erroneous on facts of the case.
9. BECAUSE without prejudice to all the grounds as has been raised above, the Assessing Officer has erred in law and on facts in adopting a pick and choose method for assessing the income of the appellant as against the established law of peak credit on the basis of telescopic view of the said account
10. BECAUSE otherwise also the rate of profit determined @ 8% is much too high and excessive and beyond the normal profits in this type of trade.
11. BECAUSE the order appealed against is contrary to facts, law and principles of natural justice.
12. The appellant craver leave to add/ modify raises any other ground during the course of appellate proceedings."
4. Ground nos. 1 to 3 are regarding validity of the reopening of the assessment. The assessee has raised the objection against service of the notice issued u/s 148 of the I. T. Act, 1961. On the other hand, the Ld. DR has submitted that the Assessing Officer has reopened the assessment based on transactions statement and CIB information regarding the transactions carried out by assessee in 'Multi Commodity Exchange' (MCX) as well as cash deposits of Rs.42,29,985/- in the bank accounts of the assessee. The Assessing Officer issued the notice u/s 148 of the Act on 08.08.2014 which was duly received by the assessee on 22.08.2014 therefore, there is no question of none service of the notice issued u/s 148 of the Act. He has further contended in response to the notice u/s 148 of the Act, the assessee has not filed any return of income. Even the assessee has not responded to the notice u/s 142(1) of the Act issued by Assessing Officer repeatedly. The requisite information called by Assessing Officer has not been furnished by assessee. Neither requisite details nor books of accounts were produced by assessee during the course of assessment proceedings. Consequential, the Assessing Officer has made addition of Rs 42,29,985/- on account of unexplained deposit in the bank account as well as Rs.1,57,335/- towards income from transactions carried out by assessee on 'Multi Commodity Exchange' (MCX) by applying net profit rate at 8% on the receipt of Rs.11,66,687/-. The Ld. DR has pointed out that the Assessing Officer has obtained the necessary details and information from M/s. KarvyCommtrade Ltd. (Broker Hyderabad) by issuing notice u/s 133(6) of the I. T. Act and based the said information the Assessing Officer has estimated the income by applying the net profit rate of 8%. The Ld. DR has submitted that in the absence of any contrary fact or 3 material brought on record by assessee, the CIT(A) is justified in confirming the addition on account of cash deposit in bank account and restricting the addition on transactions with "Multi Commodity Exchange (MCX) by applying the profit rate @ 1%. He has relied upon the orders of the authorities below.
5. I have considered the stand taken by the assessee before the CIT(A), grounds raised in the present appeal and the argument of the Ld. DR as well as relevant material on record. As regards the validity of the assessment on the grounds of the service of notice u/s 148 is concerned it is noted that the Assessing Officer has stated in the assessment order that the notice u/s 148 of the Act issued on 08.08.2014 was received by assessee on 22.08.2014 Further, the assessee has not disputed the correctness of the address to which the notices sent by Assessing Officer as well as in the absence of any contrary fact or material to despite(sic. dispute) the fact recorded by Assessing Officer I do not find any merits or substance in the objection of the assessee raised in the ground nos. 1 to 3. The assessee has just raised the objection against reopening of the assessment without specifying as to how the reopening is invalid. Therefore, the objection of the assessee or devoid of any merits or substance and the same are dismissed.
6. The ground nos. 4 to 10 are regarding addition made by Assessing Officer on account of cash deposit made in the bank account by assessee as well as the estimation of income on the transactions carried out with the 'Multi Commodity Exchange' (MCX). The assessee has not appeared before the Assessing Officer during the assessment proceedings and the assessment was completed u/s 147 r.w. 144 of the Act. The Assessing Officer has issued various notice u/s 142(1) calling the assessee to furnish the requisite details and record however, the assessee did not comply with the notice issued by Assessing Officer. The Assessing Officer then sought information by issuing notice u/s 133(6) of the Act to M/s. KarvyCommtrade Ltd. (Broker Hyderabad) through which the assessee has carried out the transaction on 'Multi Commodity Exchange' (MCX). The Assessing Officer has also obtained the bank account statement of the assessee from HDFC Bank and then cometo the conclusion that the assessee has made cash deposit in bank account to the tune of Rs.42,29,985/-. The details of the cash deposit made on various dates has been given by Assessing Officer at page no. 3 and 4 of the assessment order. The assessee has not disputed the dates and amount of deposits extracted in the table reproduced by Assessing Officer in the assessment order. In the absence of any explanation regarding source of these deposits, the Assessing Officer has rightly made the addition of the said amount while completing exparte assessment. Even before the CIT(A) as well as before this Tribunal, the assessee has not furnished any details or explanation regarding the source of these deposits. Hence, I do not find any error or irregularity in the orders of the authorities below on the issue of addition made on account of cash deposit in the bank account.
7. As regards the addition made by Assessing Officer on account of income from transactions carried out on 'Multi Commodity Exchange' (MCX) it is noted that the CIT(A) has restricted the said addition by applying profit rate @ 1% as against 8% applied by Assessing Office . The CIT(A) has sustained the addition on this account only 4 to the extent of Rs 19,667/- as against Rs.1,57,335/- estimated by Assessing Officer. The assessee has not filed any details or record to controvert the fact that he has carried out the transactions on 'Multi Commodity Exchange' (MCX). The estimation of income by CIT(A) by applying net profit at 1% is just and proper. Accordingly, I do not find any reason to interfere with the order of the CIT(A) on this issue.
8. In the result, appeal filed by the assessee is dismissed."
3. After the dismissal of the appeal filed by the assessee in ITA no. 101/Alld/2019 by tribunal 'SMC' Bench, Allahabad, vide appellate order dated 15.07.2021, the assessee filed Miscellaneous Application(MA) which was listed as M.A. No. 12/Alld/2022, and was adjudicated by tribunal SMC Bench, Allahabad vide MA order dated 14.10.2022 by recalling Ground No. 4-10 raised by assessee in memo of appeal filed with tribunal in ITA No. 101/Alld/2019 for assessment year 2011-12 for fresh adjudication , which Ground Nos. 4-10 concerns itself with Merits of the additions made by AO as later confirmed by ld. CIT(A), wherein tribunal vide MA order dated 14.10.2022 , held as under:-
"9.The Tribunal has upheld the order of the CIT(A) when there was no explanation regarding the source of the bank account of the assessee. Now, the assessee has referred the FIR filed against the accused persons and thereafter the police has also filed the charge-sheet against one Shri. Surya Prakash Verma under sections 419, 420, 467, 468 and 471 IPC. These facts are in public domain and could not be considered by the Tribunal at the time of passing of the impugned order because the same were not brought to the notice of the Tribunal. The facts, now brought to the notice of the Tribunal are relevant and very crucial for deciding the issue under consideration. Accordingly, in the facts and circumstances of the case and in the interest of justice, the impugned order dated 15.7.2021 is recalled to the extent of deciding the ground no.4 to 10 in para 6 and 7 reproduced above to be decided afresh after considering the relevant fact and record on this issue which is an independent evidence in the shape of FIR and charge-sheet filed by the police. The appeal of the assessee is directed to be re-fixed for fresh hearing and adjudication of ground no. 4 to 10."
4. That is how, now, I am called upon to adjudicate Ground No. 4-10 raised by assesee in its Memo of appeal filed with tribunal, in this second round of litigation with tribunal . Thus, so far as legal challenge to reopening under section 147/148 is concerned which was raised by assessee vide Ground No. 1-3 in memo of appeal 5 filed with tribunal, the matter has reached finality, vide tribunal appellate order dated 15.07.2021 passed by SMC Bench , wherein Ground No. 1-3 stood dismissed. So far as ground nos. 4 to 10 are concerned, it concerns itself with two additions made by the AO on merits , of which one stood confirmed by ld.CIT(A) and so far as second addition is concerned part relief was allowed by ld. CIT(A). The first addition concerned itself with payments made by M/s. Karvy Commtrade Ltd. (Brokers- Hyderabad) to the assessee to the tune of Rs. 19,66,687/- with respect to transactions in MCX , of which the AO applied rate of profit @ 8% , which was later reduced by learned CIT(A) by applying profit rate of 1% on aforesaid payments made by Karvy Commtrade Limited to the assessee. The other addition of Rs 42,29,985/- was made by the AO with respect to cash deposit made by the assessee in the bank account maintained with HDFC Bank Limited ( A/c no.
09442560000449) . The case of the assessee was reopened by Revenue by invoking provisions of Section 147 of the 1961 Act for reassessment , for the reasons that as per individual transaction statement and CIB information placed on record , the assessee has made transaction in Multi Commodity Exchange(MCX) during the year under consideration, which has escaped assessment . Proceedings u/s 147 of the 1961 Act were initiated against the assessee on 08.08.2014 , and the AO issued notice u/s 148 . The assessee did not reply to said notice nor filed return of income in pursuance to notice issued by AO u/s 148. The AO also issued several notices u/s 142(1) (including SCN) repeatedly which are duly recorded in the assessment order passed by AO , but the assessee did not comply with said notices as no replies were filed, and only on one occasion on 13.01.2016 the assessee appeared in person before ld. AO and sought adjournment , which adjournment stood granted by AO. The AO passed an ex-parte assessment order dated 15.03.2016 u/s 147 read with Section 144 of the 1961 Act. When the matter reached ld. CIT(A) at the behest of the assessee, the assessee submitted before ld. CIT(A) that the transactions of cash 6 deposit in his bank account does not pertain to the assessee, by contending as under:-
"a) He is man of limited means and he never deposited this amount in his bank account.
b) The said deposits in bank account belong to another person upon whom livelihood of appellant depended wholly and solely.
c) Entire deposits and withdrawals in the bank account should be assessable in hands of persons upon whom appellant depended for livelihood.
d) Exparte order was passed and appellant was prevented from appearing and representing the facts.
e) AO should have followed law of peak credit."
But , however, no evidences were filed by the assessee before ld. CIT(A) to support his contentions nor the name and address of the person who the assessee claimed to have allegedly deposited cash in assessee's bank account was made clear by the assessee, which led to the addition being confirmed by ld. CIT(A) with respect to cash deposit of Rs. 42.29,985/-. So far as the profit earned from transactions with Multi Commodity Exchange(MCX), the assessee contended in its grounds of appeal filed before ld. CIT(A) as under:
" a) The ownership of Rs. 19,66,687/- is in dispute, therefore, addition of Rs.
1,57,335/- is erroneous.
b) ate of profit @ 8% is high and excessive"
The ld. CIT(A) gave the relief by applying profit rate of 1% as against profit rate of 8% applied by the AO. Thus, in nutshell the contention of the assessee before ld. CIT(A) was that the amounts in his bank accounts as well transactions with MCX are not the assessee's transactions , but these transactions allegedly belonged to some one else, but the assessee did not specify before ld.CIT(A) who this person is to whom these transactions allegedly belong to.7
5. Now before me, in this round of litigation , wherein vide MA Order dated 14.10.2022 passed by tribunal recalling ground no. 4-10 raised by assessee in memo of appeal filed with tribunal , I am called upon to adjudicate ground nos. 4 to 10 raised by the assessee in memo of appeal filed with tribunal in ITA No. 101/Alld/2019, which grounds of appeal, reads as under:
"4. BECAUSE the appellant belongs to a low class strata with limited means of livelihood and has never deposited such huge amount in the bank account maintained with HDFC Bank for the same to be utilized in trading activity of commodities, so the addition of Rs. 43,87,320/- made in his hand and the liability so created against him is erroneous and Is liable To be stuck down.
5. BECAUSE the entire transaction in the said bank account, although in the name of the appellant, same belongs to the person upon whom the entire livelihood of the appellant was dependent wholly and solely, the alleged transaction in the HDFC Account No. 09442560000449 cannot be taken as the basis for making an addition of sums aggregating to Rs. 43,87,320/- in the reassessment proceedings under section 147 of the act.
6. BECAUSE in view of the aforesaid ground no. 5 above, the entire withdrawal and deposit in the said bank account should be accessible in the hands of the person upon whom the appellant for his livelihood.
7. BECAUSE for the ground no. 5 & 6 above, the appellant was prevented from appearing and representing the facts of his case before the Assessing Officer, so due alleged non-compliance an exparte order was passed by Assessing Officer and a huge addition of Rs. 43,87,320/- was made in his hand.
8. BECAUSE sum aggregating to Rs. 19,66,687/- forms part of the alleged deposits in bank account, ownership of which itself is in dispute, addition of Rs. 1,57,335/- (8% of 19,66,687) on such deposits is wholly erroneous on facts of the case.
9. BECAUSE without prejudice to all the grounds as has been raised above, the Assessing Officer has erred in law and on facts in adopting a pick and choose method for assessing the income of the appellant as against the established law of 'peak credit' on the basis of telescopic view of the said account
10. BECAUSE otherwise also the rate of profit determined @ 8% is much too high and excessive and beyond the normal profits in this type of trade. "8
5b. None appeared on behalf of the assessee nor any adjournment application was filed on behalf of the assessee, when this appeal was called for hearing before SMC Bench , Allahabad, on 28.11.2022. The learned Sr. DR made elaborate contentions before the tribunal and submitted that the case of the assessee was reopened by Revenue by invoking provision of Section 147 of the 1961 Act , as it emerged that there were transactions reported to have been undertaken by the assessee with Multi Commodity Exchange through broker Karvy Commtrade Limited. It was submitted by ld. Sr. DR that notice u/s 148 was issued by AO in reassessment proceedings , but the assessee never complied with the said notice nor return of income in pursuant to notice u/s 148 was filed by the assessee. It was submitted by ld. Sr. DR that the AO issued several notices repeatedly u/s 142(1)(including SCN) but the same remained un-complied with by the assessee , except on one occasion on 13/1/2016 when the assessee appeared in person before the AO when the assessee sought adjournment , which adjournment stood granted by the AO. It was submitted by ld. Sr. DR that the assessee did not co-operated with department in assessment proceedings , and no reply was filed by the assessee. But the AO obtained information directly from M/s. Karvy Commtrade Ltd. with respect to transactions undertaken by assessee with MCX, by issuing notice u/s 133(6). The ld. Sr. DR submitted that the AO directly obtained bank statement from HDFC Bank , by issuing notice u/s 133(6) . The ld. Sr. DR took us strenuously to paper book containing 92 pages filed by department, wherein these notices issued by AO u/s 148 and several notices issued by AO u/s 142(1) , are placed. The ld. Sr. DR submitted that all these notices were duly served on the assessee. The ld. Sr. DR also strenuously took me to paper book filed by him, wherein the information as to transactions with Karvy Commtrade Limited w.r.t. transactions with MCX is placed, which was obtained by AO by invoking provisions of Section 133(6). He also drew our attention to bank statement obtained by AO from HDFC Bank Limited., by invoking provisions of Section 133(6) It was submitted by ld. Sr. DR that the 9 assessee did not file return of income in pursuant to notice issued by AO u/s 148, nor any reply was filed by the assessee, and the assessee appeared only once before the AO during reassessment proceedings , on 13.01.2016 and sought adjournment which was granted by the AO. It was submitted that so far as cash deposits of Rs.42,29,985/-with HDFC Bank Limited is concerned, the ld. CIT(A) has confirmed the addition, while so far as second addition concerning profit rate of 8% applied by the AO on payments made by Karvy Commtrade Limited to the assessee with respect to transactions with MCX through Karvy Commtrade Limited, the ld. CIT(A) reduced profit rate to 1% on payments made by Karvy Commtrade Limited to the assessee with respect to transactions with MCX. The ld. Sr. DR submitted that the assessee| filed written submissions before ld CIT(A) , but no evidences were submitted by assessee before ld. CIT(A) to support its contentions . It was submitted that even before ITAT in first round of litigation , the assessee did not appeared before tribunal and an ex parte order was passed by tribunal on 15.07.2021 , and the tribunal dismissed the appeal filed by the assessee. It was submitted that the assessee filed MA , and the tribunal recalled its order so far as ground no. 4-10 are concerned , which concerns with two additions made on merit by the AO as confirmed by ld. CIT(A) . It was submitted that so far as legal challenge to reopening of the assessment u/ s 147 raised by assessee vide ground no. 1-3 in its memo of appeal filed with tribunal, has raised finality. It was submitted that the assessee has come out with the details of the person whom assessee is alleging to have misused his bank account and claimed that the transactions in his bank account as well transactions with MCX pertain allegedly to his employers . The copies of FIR filed by the assessee, and charge-sheet filed by the police with the Hon'ble Court , copy of Anticipatory bail granted by the Hon'ble Court to the accused , were placed on record by the assessee in Misc. Application proceedings. It was fairly submitted by ld. Sr. DR that these are additional evidences now filed by the assessee are vital and relevant evidences to adjudicate the matter, but the same requires verification by 10 authorities below as they are filed before tribunal for the first time , and hence in all fairness the matter can go back to ld. CIT(A) for fresh adjudication.
6. I have considered the contentions of learned Sr. DR and carefully perused the material on record. I have observed that the case of the assessee was reopened for framing reassessment by Revenue by invoking provisions of Section 147 of the 1961 Act, for the reasons that as per individual transaction statement and CIB information placed on record , the assessee has made transaction in Multi Commodity Exchange(MCX) during the year under consideration, which has escaped assessment . Proceedings u/s 147 of the 1961 Act were initiated by Revenue against the assessee on 08.08.2014 , and the AO issued notice u/s 148 which was claimed by Revenue to have been duly served on the assessee. The assessee did not reply to said notice nor filed return of income in pursuance to notice issued by AO u/s 148. The AO also issued several notices u/s 142(1) (including SCN) repeatedly which are duly recorded in the assessment order passed by AO , but the assessee did not comply with said notices as no replies were filed, and only on one occasion on 13.01.2016 the assessee appeared in person before ld. AO and sought adjournment , which adjournment stood granted by AO. The AO passed an ex-parte assessment order dated 15.03.2016 u/s 147 read with Section 144 of the 1961 Act, wherein income of the assessee was assessed at Rs. 43,87,320/. It appears from record that the assessee never filed return of income originally u/s 139, nor filed any return of income in pursuance to notice u/s 148. So far as legal challenge to reopening of assessment vide ground number 1-3 raised by the assessee in memo of appeal filed with tribunal, same has attained finality , vide appellate order dated 15.07.2021 passed by tribunal in first round of litigation. After passing of the aforesaid order by tribunal, the assessee filed MA , and the tribunal recalled ground no. 4-10 for fresh adjudication . These ground no. 4-10 concerns itself with merit of the two additions made by the AO. The AO had made two additions in the assessment order . The assessee did not co-operated in the 11 assessment proceedings and no reply was filed by the assessee before the AO. The AO directly called information from HDFC Bank Limited by issuing notice under section 133(6) . The AO also called direct information from M/s. Karvy Commtrade Ltd. by issuing notice u/s 133(6) , with respect to transactions of the assessee with MCX. The AO made two additions on merits, firstly with respect to cash deposits in HDFC Bank Ltd., wherein the AO has made addition to the tune of Rs.42,29,985/- on account of unexplained cash deposit in the HDFC Bank Limited , detailed as under:-
1 10/4/10 Rs. 18,853/-
2 12/4/10 Rs. 1,48,493/-
3 15/4/10 Rs. 1,23,593/-
4 15/4/10 Rs. 1,30,000/-
5 23/4/10 Rs.69,193/-
6 30/4/10 Rs.53,524/-
7 5/5/10 Rs.17,524/-
8 13/5/10 Rs.28,539/-
9 15/5/10 Rs.1,19,539/-
10 7/6/10 Rs.90,439/-
11 12/6/10 Rs.18,439/-
12 15/6/10 Rs.36,939/-
13 24/6/10 Rs.86,839/-
14 29/7/10 Rs.1,74,691/-
15 18/9/10 Rs.68,131/-
16 21/9/10 Rs.29,000/-
17 29/9/10 Rs.97,181/-
18 6/10/10 Rs.1,97,231/-
19 14/10/10 Rs.1,32,781/-
20 15/10/10 Rs.1,83,281/-
21 20/10/10 Rs.2,61,552/-
22 21/10/10 Rs.4,18,286/-
23 22/10/10 Rs.1,68,286/-
24 26/10/10 Rs.7,286/-
25 24/11/10 Rs.52,417/-
26 1/12/10 Rs.42,417/-
27 16/12/10 Rs.76,717/-
28 23/12/10 Rs.46,717/-
29 28/12/10 Rs.1,71,717/-
30 3/1/2011 Rs.69,117/-
31 17/1/11 Rs.1,25,227/-
32 18/1/11 Rs.58,427/-12
33 21/1/11 Rs.2,33,132/-
34 27/1/11 Rs.49,000/-
35 31/1/11 Rs.1,48,132/-
36 8/2/11 Rs.1,95,598/-
37 17/2/11 Rs.52,412/-
38 25/2/11 Rs.14,412/-
39 9/3/11 Rs.75,461/-
40 16/3/11 Rs.93,462, /-
41 30/3/11 Rs.45,000/-
Total Rs. 42,29,985/-
The AO also made second addition by applying profit rate of 8% on the payments made by Karvy Commtrade Limited to the tune of Rs. 19,66,687/ - to the assessee.
The income of the assessee was assessed by AO at Rs. 43,87,320/- during reassessment proceedings, vide ex-parte reassessment order dated 15.03.2016 passed u/s 147 read with Section 144 . The assessee filed first appeal with ld. CIT(A) and contentions were raised that the income /transactions allegedly belong to some other person and not to the assessee, but the assessee did not filed any evidences before ld. CIT(A) nor name of the persons to whom these transactions/income allegedly pertain were disclosed by the assessee before ld. CIT(A) . The ld. CIT(A) confirmed the addition so far as unexplained cash deposit of Rs. 42,29,985/- in HDFC Bank is concerned, while ld. CIT(A) gave part relief to the assessee by reducing profit rate to 1% of the payments made by Karvy Commtrade Limited to the assessee with respect to transactions with MCX as against rate of profit of 8% applied by the AO. The assessee filed second appeal before tribunal, which stood dismissed ex-parte by tribunal in the first round of litigation , vide appellate order dated 15.07.2021. The assessee filed Misc. Application with Tribunal, and the tribunal recalled ground no. 4-10 raised by assessee in memo of appeal filed with tribunal, which grounds of appeal concerns itself with merit of the two additions , while so far as grounds of appeal number 1-3 concerning legal challenge to re-opening of assessment by invoking provisions of Section 147/148, stood dismissed by tribunal vide order dated 15.07.2021 , have attained finality. I 13 have observed that the assessee has claimed before ld. CIT(A) that his bank accounts was allegedly misused and the transactions with MCX also pertains allegedly to someone else. The assessee in Misc. Application proceedings , filed copy of FIR No. 0063 dated 18.01.2020 filed by the assessee with Police ( P.S. Kotwali Nagar, Sultanpur) u/s 154 of Criminal Procedure Code against Mr. Surya Prakash Verma and Mr.Om Prakash Verma, whom the assessee is claiming carried out business transactions fraudulently in the name of the assessee. The assessee has also alleged in the aforesaid FIR that Mr.Surya Prakash Verma allegedly opened fraudulently ICICI Bank account bearing number 044301506343. The assessee has also filed copy of charge-sheet no. 01 dated 15.10.2020 filed by the Police u/s 173 of Criminal Procedure Code with Hon'ble Court , Sultanpur u/s 419, 420, 467, 468 and 471 of IPC, 1860 against the accused Mr. Surya Prakash Verma and Mr. Om Prakash Verma. The assessee has also filed copies of the anticipatory bails being granted by Hon'ble Court to both the aforesaid accused . I have observed that these are additional evidences which are now filed before the Tribunal in Misc. Application proceedings for the first time , and these evidences are relevant and crucial for deciding the issues . The ld. Sr. DR has also fairly submitted that these additional evidences are relevant and material for deciding the issues, and these evidences requires verification by authorities as they are now produced before the tribunal for the first time in MA proceedings. It is pertinent to mention that the assessee did not file any reply before the AO and even before ld. CIT(A) also merely written submissions were filed which were not supported by any evidences. In the first round of litigation before tribunal, the assessee did not appear and tribunal passed an ex- parte order. Thus, the assessee is equally responsible for its woes. It is only in the MA proceedings before tribunal, that the assessee has come out with copy of FIR, Charge sheet etc. alleging that the transactions in his bank account as well business transactions allegedly pertains to Mr. Om Prakash Verma and Mr. Surya Prakash Verma. I have also observed from the facts emerges from record that the assessee 14 has one more bank account with ICICI Bank Limited( a/c no. 044301506343), which the AO did not consider while framing assessment . Similarly, the ld. Sr DR has placed on record complete details of transactions with Karvy Commtrade Limited, which are placed in paper book at page 7-76 filed by Revenue . In my considered view , the matter needs to be restored to the file of ld. CIT(A) for fresh adjudication wherein the assessee's appeal is restored to original status, except that so far as legal challenge to reopening of assessment has now attained finality vide tribunal order dated 15.07.2021 . The ld. CIT(A) will consider all the facts in set aside proceedings to compute income chargeable to tax. Needless to say that the powers of learned CIT(A) are co-terminus with power of the AO. The ld. CIT(A) in second round of litigation will admit evidences filed by the assessee in its defense and will make such enquiries to also unravel the truth as to alleged claim of the assessee that some persons allegedly misused the assessee's bank account , and then adjudicate the matter on merit. Thus, the matter is required to be set aside and restored to the file of ld. CIT(A) for fresh adjudication . Needless to say that ld. CIT(A) shall give proper and adequate opportunity of being heard to the assessee. The appeal of the assessee is allowed for statistical purposes. We order accordingly.
7. In the result, the appeal filed by assessee with tribunal in ITA No. 101/Alld./2019 for ay: 2011-12 is partly allowed for statistical purposes, as indicated above.
Order pronounced in the open court on conclusion of hearing on 28/11/2022 in the presence of ld. Sr. DR and reduced to writing and signed on 29.11.2022.
Sd/-
[RAMIT KOCHAR] ACCOUNTANT MEMBER DATED: 29/11/2022 sh.
15Copy forwarded to:
1. Appellant -Roop Narayan Pandey, Madanpur , Paniyar Pur, Pandeypur, Sultanpur, U.P.
2. Respondent -Income Tax Officer, Sultanpur, U.P.
3. CIT(A) -Lucknow-2, Lucknow
4. CIT-Allahabad, U.P.
5. DR -Sr. DR(ITAT), Allahabad By order Sr. P.S. 16