Jagbir Singh, Rohtak vs Assessee

Jagbir Singh, vs ITO, S/o-Sh. Raghbir Singh, H.No.-304/02, Ward-1, Rohtak Near Gaur College, Rohtak PAN-AXTPS0718B (APPELLANT) (RESPONDENT)

Appellant by Sh.Goutam Jain, CA Respondent by Sh.Gaurav Dedeja, Sr. DR

Date of Hearing:-23.02.2015 Date of Pronouncement:- 26.02.2015

ORDER PER DIVA SINGH, JM

These are two appeals filed by the assessee against the order passed by CIT(A), Rohtak dated 04.03.2011 pertaining to 2007-08 assessment year and 21.04.2011 wherein he rectifies u/s 154 of the Income Tax Act, 1961his earlier order dated 04.03.2011. Both these appeals are being decided together for the sake of convenience.

2. The Ld. AR in ITA No.-2540/Del/2011invited attention to the written submissions filed qua the grounds raised assailing the addition sustained by the CIT(A) to the extent of Rs.6,47,500/- submitted that the assessee as per the assessment order has filed his return on 28.02.2008 declaring an income of Rs.95,340/- under the head income from business or profession and had also shown agricultural income of Rs.62,490/- alongwith commission income from sale of old tractors. Apart from that as per para 1 of the assessment order it was pointed out the assessee is also one of the partners in the two firms namely M/s Sat Kabeer 2 I.T.A .No.-2540 & 2541 /Del/2011

Automobiles, Bhiwani Road, Loharu and M/s Dhull Automobiles, Bhiwani Road, Rohtak.

3. The record shows that the AO considering the deposits of Rs.31.97,142/- from the following bank accounts made the addition of Rs.10,42,642/-:-

Sr. No. Particulars Amount (Rs.) i). State Bank of Patiala, A/c No.- 4,67,288/- 55018246551 ii). State Bank of Patiala, A/c No.- 3,61,352/- 55018225473 iii). Axis Bank, A/c No.-204010100024569 23,68,502/- Total 31,97,142/-

4. In appeal considering the arguments of the assessee the CIT(A) sustained the addition of Rs.6,47,500/-. The breakup of which is as under:-

Sr. No. Particulars Amount (Rs.) 1. Axis Bank, A/c No.204010100024569 (A) i).Benefit of cash withdrawal from the bank 2,55,000/- account ii).Benefit of advance received from 50,000/- customers of Rs.50,000/- from a customer and deposited in bank on 15.12.06

Total 3,05,000/- II. Credit given against the sale of ancestral 3,42,500/- agricultural land sold by the appellant for Rs.6,85,000/- jointly with the brother (B) Grand Total=A+B 6,47,500/-

5. Addressing the same, inviting attention to the impugned order page-5 it was his submission that the claim of the assessee that the cash of Rs.2.55 lacs was from cash withdrawals was dismissed in a cursory manner holding that the assessee has not offered a plausible explanation. It was submitted that the CIT(A) did not even care to address the explanation offered and simply came to the conclusion that the explanation was not plausible. The addition it was submitted deserves to be deleted as there was availability of cash and this fact is evident from the specific bank account maintained with the Axis Bank on the following dates evident from the Paper Book filed:-

3 I.T.A .No.-2540 & 2541 /Del/2011 Sr. No. Particulars Amount (Rs.) i). Dated 30.06.2006 (page 7 of paper Book) 1,00,000/- ii). Dated 08.09.2006 (pages 7 of Paper Book) 85,000/- iii). Dated 09.10.2006 (page 6 of Paper Book) 30,000/- iv). Dated 15.03.2007 (page 6 of Paper Book) 40,000/- Total 2,55,000/-

5.1. Similarly with respect to the claim of the advance from customers it was his submission that the assessee has all along canvassed that he is working as an agent for sale and purchase of old tractors which fact is accepted by the AO also as per para 1 of the assessment order. Besides this, the assessee is also partner in two firms and the sum of Rs.50,000/- had been received from customers which was deposited in the bank account on 15.12.2006 which has been taken note of the fact and on the very same date the payment was made to M/s Bharat Tractors evidences from Paper Book Page No.-6 which fact has been ignored by the CIT(A). Apart from that credit of sale of ancestral land sold by the assessee deposited in his bank account has not been granted on the reasoning that a portion of the sale proceeds belongs to his brother. The fact of its deposited in his bank account and the copy of the sale deed which is placed at pages 15 to 18 it was submitted has been ignored.

6. The Ld. Sr. DR considering the submissions and the arguments stated that let the issue be looked into by the AO as readily the paper book relied upon by the Ld. AR is not available with him. The Ld. AR stated that it has been filed and another copy was given however he had no objection if the issue is sent back to the AO. In the light of the facts, arguments and pleadings of the parties before the Bench, we restore the issue of addition sustained to the extent of Rs.6,47,500/- back to the file to the AO with the direction to consider the allowability of the assessee's claim stated to be demonstrated from the Paper Book filed. If need be the assessee shall place fresh evidence in support of its claim which the AO shall consider before passing his order.

7. In terms of the above the AO is directed to decide the issue by way of a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.

4 I.T.A .No.-2540 & 2541 /Del/2011 8. In the result the appeal of the assessee is allowed for statistical purposes in terms of the above direction.

9. The arguments relatable to ITA No.-2541/Del/2011 were limited to the extent that the impugned order was passed without hearing the assessee. On the basis of which the relief granted to the assessee to the extent of Rs.3,95,142/- by the CIT(A) vide his order dated 04.03.2011 was restricted to Rs.3,23,140/-. The Ld. AR relying upon J.T.(India) Exports and Another vs UOI 262 ITR 269 (Delhi) contended that the impugned order deserves to be quashed. Apart from that it was also submitted that the impugned order contains no reasons justifying the rectification and has been passed without providing an opportunity of being heard to the assessee. Considering the submissions of the Ld. AR the Ld. Sr. DR in the face of the record had nothing to say as admittedly the order was passed without hearing the assessee however the reason for passing the order it was pointed out was a letter received from the AO. In the light of the admitted facts that the order was passed without providing the assessee an opportunity of being heard and relying upon the judicial precedent cited of the Jurisdictional High Court which is a well-settled principle namely that an order passed adversely affecting the right of a party without first putting the party to notice of the reason on the basis of which the order is contemplated the same becomes vitiated as being arbitrary. Accordingly we hold that the assessee's plea deserves to be allowed. In view of the fact that the issue has been restored to the file of the AO in the earlier appeal. No further order on merits need be passed.

10. In the result the ITA No.2540/Del/2011 filed by the assessee is allowed for statistical purposes and ITA No.2541/Del/2011 is allowed.

The order is pronounced in the open court on 26th of February 2015.

Sd/- Sd/- (T.S.KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: 26/02/2015 *Amit Kumar* 5 I.T.A .No.-2540 & 2541 /Del/2011

Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI