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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR.
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
ORDER Per: Anikesh Banerjee, JM: The instant appeal of the assessee was filed against the order of the ld. Commissioner of Income-tax (Appeals), Bathinda, (in brevity ‘the CIT (A)’) order passed u/s 250 (6) of the Income-tax Act, 1961 (in brevity the Act) for assessment year 2009-10. The impugned order was emanated from the order of the ld. Income Tax Officer- Ward 2(1), Bathinda, (in brevity the ld. AO) order passed u/s 144 of the Act.
2. The assessee has taken the following grounds:
“1. That on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in upholding the re- opening the assessment on the basis of vague information.
That on the facts and in the circumstances of the case and in law, the notice issued u/s 148 was not served upon the assessee. So, the re-assessment is liable to be quashed.
That on the facts and in the circumstances of the case and in law, as the learned AO has not considered the relevant documents supplied during the course of assessment proceedings. So, the re-opening as well as re-assessment is liable to be quashed.
4. That on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in not following the decisions of the jurisdictional Bench of ITAT on account of judicial discipline. Accordingly, the re-assessment is liable to be quashed.
5. That the agreement to sell Dated 22.08.2006 for the sale of 24K agricultural land at the rate of Rs. 621000/- per kanal is liable to be accepted. By accepting the deposit of Rs. 550000/- on account of advance received at time of execution of agreement as corollary, the agreement is liable to be accepted in toto. So, the balance sustained addition is liable to be deleted.
6. That on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in not accepting the contention that unregistered documents can be considered for collateral purposes as per proviso to section 49 of the Registration Act, 1908 and also ignoring the direct judgment of the Hon’ble Punjab and Haryana High Court.
That the assessment is to be made on the basis of material and not as per the evidence as per Evidence Act, 1872. So, the agreement Dated 22.08.2006 cannot be discarded. The AO should have called the purchasers and witnesses as per agreement to help the assessee and know the truth.
8. That on the facts and in the circumstances of the case and in law, the learned CIT(A) should have deleted the whole addition in the hands of the assessee as is clear that he has deposited the money in his bank account out of the advancetaken on 22.08.2006 and out of the sale proceeds of his agricultural land sold on 02.07.2008 and on money received from the purchasers particularly when no adverse inference has been taken against the other two co-owners. .
That on the facts and in the circumstances of the case and in law, the learnedCIT(A) should have given the benefit of Rs. 15 lakhs withdrawn by the assessee from his saving account in bank on 20.11.2007 for the re-deposit of Rs. 790000/-on 31.10.2008 and Rs. 495000/- on 11.11.2008.
That as the agricultural land sold belongs to the HUF of the assessee, so theassessment should have been made in the hands of the HUF of the assessee not in individual status. So, the assessment is liable to be quashed.
That any other relief may kindly be granted to the assessee to whom he is foundentitled at the time of hearing of appeal.”
3. When the appeal was called for hearing, none was present on behalf of the assessee. The ld. AR for the assessee filed an adjournment petition and placed that certain case law should be filed in the appeal proceeding and prayed for adjournment of the appeal. There is not any such valid reason for adjournment of date of hearing. In view of the above and considering the nature of dispute, we proceed to dispose the appeal ex-parte qua the assessee after hearing the learned DR and on the basis of material available on the record.
The brief fact of the case is that the assessee deposited cash amount in the Oriental Bank of Commerce, Gidderbaha bearing a/c no. 06362010038750 the total amount to Rs.51,30,000/- into four instalments. The assessment was initiated u/s 148 of the Act. The assessee placed an agreement to sale of land which was sold amount to Rs.3,66,000/-. The ld. AO had considered the sale amount as part of cash deposited and deducted the amount from the total deposit of cash in bank. Accordingly, the balance amount of Rs.47,64,000/- is added back as unexplained money u/s 69A with the total income of the assessee.
Aggrieved assessee filed an appeal before the ld. CIT(A). As per the assessee, the ld. CIT(A) without considering the explanation of the assessee.the issue was duly rejected. The appeal of the assessee was dismissed. Being aggrieved assessee filed an appeal before us by challenging the appeal order.
The ld. DR vehemently argued and relied on the order of the revenue authorities.
We heard the rival submission and considered the documents available in the record. The relevant para 9.2 of the CIT(A)’s order is reproduced as below:
“9.2 I have given careful consideration to the contention above and find that the entire set of argument is misplaced because the appellant has lost sight that his case has been reopened based upon the fact that there was cash deposit in his bank account which has not been explained. The contention of the appellant would have been considered if the Assessing Officer was bringing to tax sale consideration/capital gains of sale of agricultural land belonging to HUF in the hands of individual appellant. On the contrary, in the present case it is appellant who wants the Assessing Officer to believe that source of cash is emerging from sale consideration of agricultural land (it is immaterial whether the said land belonged to appellant himself or to his HUF). The Assessing Officer did not believe any of the contention in respect of sale of agricultural land and more so that the issue was not in front of the Assessing Officer at all. The contention of the appellant is misplaced because Assessing Officer neither assessed the transaction of sale of the said agricultural land not decided it’s status in his impugned order. The ground of appeal is dismissed.
10. The appeal of the appellant is dismissed.”
7. We heard the submission of the ld. DR, considered the available documents and the orders of the revenue authorities. The appeal was adjudicated without considering the submission of the assessee and without allowing the benefit of Rs. 15 lakhs withdrawn by the assessee from his saving account in bank on 20.11.2007 for the re-deposit of Rs. 7,90,000/-on 31.10.2008 and Rs. 4,95,000/- on 11.11.2008.Further, it is accepted that there is absence of adjudication due to absence of documents as filed by the assessee. The reasonable opportunity for the assessee was denied which is violation of the natural justice. We remit back the matter to the file of the ld. CIT(A) for further consideration of the appellant’s plea related to the addition. We also direct the assessee to submit a fresh copy with relevant documents to the ld. CIT(A) for adjudication the issue. Needless to say, the assessee should get a reasonable opportunity of hearing in set aside proceeding.
In the result, appeal of the assessee is allowed for statistical purposes.