Shri Manish Nagar,, Indore v. The ACIT, Indore

ITA 483/IND/2009 | 2002-2003
Pronouncement Date: 26-05-2010 | Result: Dismissed

Appeal Details

RSA Number 48322714 RSA 2009
Bench Indore
Appeal Number ITA 483/IND/2009
Duration Of Justice 7 month(s) 10 day(s)
Appellant Shri Manish Nagar,, Indore
Respondent The ACIT, Indore
Appeal Type Income Tax Appeal
Pronouncement Date 26-05-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 26-05-2010
Assessment Year 2002-2003
Appeal Filed On 16-10-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO.483 AND 484 /IND/2009 A.Y.2002-03 MANISH NAGAR INDORE PAN AANPNA-4709J APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 4(12) INDORE RESPONDENT APPELLANT BY : SHRI H.P. VERMA AND SHRI ASHISH GOYAL RESPONDENT BY : SHRI P.K. MITRA O R D E R PER JOGINDER SINGH JUDICIAL MEMBER THESE APPEALS ARE PREFERRED BY THE ASSESSEES AGAINS T THE ORDERS OF THE LEARNED CIT(A) DATED 16.7.2009. FIRS TLY WE SHALL DEAL WITH ITA NO. 483/IND/2009 WHEREIN THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER MAINTAINING THE ADDIT ION IN RESPECT OF CASH CREDIT OF RS. 200000/- RECEIVED BY THE ASSESSEE FROM SMT. PUSHPA DAFARIA AND INTEREST PAID THEREON OF RS. 15 660/-. IN ITS FIRST GROUND A STRONG PLEA WAS RAISED THAT 2 LD. FIRST APPELLATE AUTHORITY ERRED IN REJECTING TH E CONFIRMATION LETTER FILED UNDER RULE 46A(1) OF THE INCOME TAX RU LES. IN ITA NO.484/IND/2009 CONFIRMATION OF PENALTY LEVIED U/S 271(1)(C) ON THE AMOUNT OF UNSECURED LOAN/CASH CREDIT AND INTERE ST PAID THEREON HAS BEEN CHALLENGED. 2. DURING HEARING WE HAVE HEARD LEARNED REPRESENTA TIVES OF BOTH THE PARTIES AND CONSIDERED THE ARGUMENTS ADVAN CED BY THEM. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSES SEE IS THAT THIS IS SECOND ROUND OF PROCEEDINGS AS EARLIER THE TRIBUNAL REMANDED THE MATTER BACK TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WITH SPECIFIC DIRECTION FOR WHICH OUR ATTENTION WAS INVITED TO PAGE 9 OF TH E PAPER BOOK. IT WAS PLEADED THAT IN THE SECOND ROUND IN THE IMP UGNED ORDER THE APPLICATION FILED UNDER RULE 46A WAS REJECTED F OR WHICH OUR ATTENTION WAS INVITED TO PAGE 4 (PARA 1.6) OF THE O RDER AND CONFIRMATION IN PARA 1.7. IN APPLICATION UNDER RUL E 46A IT WAS CONTESTED THAT THE LEARNED ASSESSING OFFICER WAS RE QUESTED TO ISSUE SUMMONS TO THE CREDITOR AND THE ASSESSEE COUL D OBTAIN THE CONFIRMATION OF THE CREDITORS DURING PROCEEDING S BEFORE THE 3 LEARNED COMMISSIONER OF INCOME TAX (APPEALS). IT WA S SUBMITTED THAT SINCE THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE CONFIRMATION OF THE CREDITORS DURING ASSESSMENT PROCEEDINGS AND ADDITIONAL EVIDENCE WAS FILED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) THE SAME SHOULD HAVE BEEN ADMITTED. THE ADDITIONAL EVI DENCE WAS CLAIMED TO BE RELEVANT TO DECIDE THE ISSUE THEREFO RE FOR THE CAUSE OF SUBSTANTIAL JUSTICE OF BOTH THE SIDES THE SAME SHOULD HAVE BEEN ADMITTED FOR WHICH RELIANCE WAS PLACED UP ON THE DECISION OF THE HONBLE M.P. HIGH COURT IN CIT V. S HALIGRAM PREMNATH; 179 ITR 239 (MP) CIT V. KUM SATYA SETHIA ; 143 ITR 386 (MP) AND CIT V. GANI BHAI WAHAB BHAI; 232 I TR 900 (MP). ON THE OTHER HAND THE LEARNED SENIOR DEPART MENTAL REPRESENTATIVE DEFENDED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BY SUBMITTING THAT AT THE ORIGINAL ASSESSMENT STAGE SUFFICIENT OPPORTUNIT Y WAS PROVIDED TO THE ASSESSEE WHEREIN THE ASSESSEE DID N OT FILE THE NECESSARY DETAILS THEREFORE DENIAL OF ADMISSION O F ADDITIONAL EVIDENCE AT THE FIRST APPELLATE STAGE WAS DEFENDED. 4 3. ON PERUSAL OF RECORD AND AFTER HEARING THE RIVAL SUBMISSIONS IT IS SEEN THAT THE ASSESSEE DECLARED I NCOME OF RS1 73 750/- IN ITS RETURN FILED ON 31.10.2002. TH E ASSESSEE SHOWED SALARY INCOME OF RS.1 50 000/- AND INTEREST INCOME OF RS. 37 787/- FROM PARTNERSHIP FIRM M/S SHELMORE IN DORE M/S MECH TECH ENGG. CORPORATION AND CLAIMED DEDUCTION U NDER SECTION 80-L ON THE BANK INTEREST. THE ASSESSEE WA S ASKED TO FILE THE DETAILS OF PAYMENT OF INTEREST AMOUNTING T O RS.1 65 100/- NECESSARY DETAILS OF CREDITORS ALONG WITH THEIR CONFIRMATION IN RESPECT OF PERSONS MENTIONED IN S CHEDULE-A OF UNSECURED LOANS AND PAYMENT OF INTEREST ON LOAN. TH E ASSESSEE ATTENDED OFFICE ON 27.5.2004 AND FILED WRI TTEN SUBMISSIONS. THE ASSESSEE ALSO FILED DETAILS OF SOU RCE OF INVESTMENT AS UNDER :- S.NO. AMOUNT RS. CHEQUE NO. BANK NAME DATE LOANS RECEIVED FROM 1 1 50 000 28150 BANK OF INDIA 18.8.2001 NIRMAL JAIN 2 2 00 000 59836 BANK OF INDIA 18.8.2001 SMT. PUSHPA DAFRIA 3 1 50 000 934841 CANARA BANK 14.3.2002 SMT. MANJULA JAIN 4 1 50 000 89852 CANARA BANK 16.3.2002 SHRI SANJAY AGRAWAL 5 AS PER THE REVENUE THE ASSESSEE FILED CONFIRMATION FROM ALL THE CREDITORS EXCEPT SMT. PUSHPA DAFRIA. LATERON SMT. NIRMALA JAIN SMT. MANJULA JAIN AND SHRI SANJAY AGRAWAL WER E ALSO PRODUCED BEFORE THE ASSESSING OFFICER FOR EXAMINATI ON ON OATH U/S 131 AND THEIR STATEMENTS WERE RECORDED. HOWEVER SMT. PUSHPA DAFRIA COULD NOT BE PRODUCED. THE ASSESSEE ASKED THE ASSESSING OFFICER TO ISSUE SUMMONS TO SMT. PUSHPA D AFRIA. THE ASSESSEE WAS ASKED TO FURNISH COMPLETE DETAILS/ ADDRESS BUT AS PER THE REVENUE THE ASSESSEE COULD NOT FURN ISH SUCH DETAILS THEREFORE THE AMOUNT OF RS.2 LACS WAS TRE ATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. THE INT EREST AMOUNT PAID TO SMT. PUSHPA DAFRIA WAS ALSO DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE. THE ASSESSMENT ORDER W AS CARRIED IN APPEAL BEFORE THE LEARNED COMMISSIONER O F INCOME TAX (APPEALS) WHEREIN THE ASSESSEE FILED ADDITIONAL EVIDENCE WHICH WAS DECLINED. ON FURTHER APPEAL BEFORE THE T RIBUNAL IT WAS NOTICED THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DID NOT PASS ANY ORDER ON APPLICATION FIL ED UNDER RULE 46A OF THE INCOME TAX RULES ON REFUSAL TO ADMISSIBI LITY OF 6 ADDITIONAL EVIDENCE AND ALSO NO COMMENT OF THE ASSE SSING OFFICER ON THE REMAND REPORT. THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) MERELY CONFIRMED THE ADDITION WITHOUT LOOKING INTO THE ADMISSIBILITY OF APPLICATION FILED UNDER RULE 46A ESPECIALLY WHEN THE ASSESSEE FILED CONFIRMATION BEF ORE HIM AND COMPLETE ADDRESS OF SMT. PUSHPA DAFRIA ALONG WITH P AN AND ELECTION CARD. THE MATTER WAS RESTORED TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WITH THE DIREC TION TO CONSIDER THE ISSUE AFRESH BY PROVIDING REASONABLE O PPORTUNITY OF BEING HEARD. IT IS FOUND THAT EVEN PURSUANT TO DIRECTION OF THE TRIBUNAL VIDE PARA 1.6 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ON THE BASIS OF OPPORTUNITIES PROVIDE D DURING ASSESSMENT STAGE WHEREIN THE ASSESSEE COULD NOT FUR NISH DETAILS CONCLUDED THAT SUFFICIENT TIME WAS GRANTED TO THE ASSESSEE BY THE ASSESSING OFFICER. IT IS VERY STRA NGE THAT THE DIRECTION OF TRIBUNAL WAS NEITHER COMPLIED WITH NOR ANY ORDER WAS PASSED ON DENIAL OF ADMISSION OF ADDITIONAL EVI DENCE FILED BEFORE HIM. THE TRIBUNAL IN ITS WISDOM ON CONSIDE RATION OF OPPORTUNITIES PROVIDED BY THE ASSESSING OFFICER RE MANDED THE 7 APPEALS FOR FRESH CONSIDERATION TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THEREFORE TH E ISSUE OF SUFFICIENCY OF OPPORTUNITY DURING ASSESSMENT STAGE ENDED AT THE STAGE OF TRIBUNAL VIDE ORDER DATED 22.5.2009 T HEREFORE THE CONTENTION OF THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) THAT SUFFICIENT OPPORTUNITY WAS ALREADY P ROVIDED BY THE ASSESSING OFFICER IS NOT IN GOOD TASTE. THE JUD ICIAL DISCIPLINE DEMAND THAT THE ORDER OF THE HIGHER FORUM SHOULD HA VE BEEN SHOWN UTMOST REGARD AS WAS HELD BY THE HONBLE APEX COURT IN CIT V. RALSON INDUSTRIES LIMITED; 288 ITR 322 (SC) WHEREIN IT WAS HELD THAT WHEN AN ORDER IS PASSED BY A HIGHER AUTHORITY THE LOWER AUTHORITY IS BOUND THEREBY KEEPING IN VIE W THE PRINCIPLE OF JUDICIAL DISCIPLINE. IDENTICAL RATIO WAS LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN CHUNNILAL ONKARMAL PRIVATE LIMITED V. CIT; 224 ITR 233 (MP) WHICH WAS ALSO CONFIRMED BY THE HONBLE SUPREME COURT. IN VIEW OF THESE FACTS AND JUDICIAL PRONOUNCEMENTS AND ALSO THAT ITA NO. 484/IND/2009 WHEREIN THE PENALTY U/S 271(1) WAS IM POSED PURSUANT TO THE OUTCOME OF ITA NO. 483/IND/2009 TH EREFORE 8 THESE APPEALS ARE SENT BACK TO THE FILE OF THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) WITH THE DIREC TION TO AFFORD APPROPRIATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE AND DECIDE THE ISSUE AFTER ADMITTING ADDITIONAL EVI DENCE FILED BEFORE HIM. BOTH THESE APPEALS ARE THEREFORE ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CO NCLUSION OF HEARING ON 5 TH APRIL 2011. (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5 TH APRIL 2011 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE DN/- 9