Pratap Choudhary , Kishangarh vs Department Of Income Tax

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 909/JP/2011 fu/kZkj.k o"kZ@Assessment Year : 2008-09

The I.T.O. cuke Shri Pratap Choudhary, Kisangarh. Vs. 1, Bangro Ki Dhani, Sarana, Madanganj, Kisangarh. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AHQPC 1996 G vihykFkhZ@Appellant izR;FkhZ@Respondent

jktLo dh vksj ls@ Revenue by : Mrs. Neena Jeph (JCIT). fu/kZkfjrh dh vksj ls@ Assessee by : None(Departmental A.D. on record)

lquokbZ dh rkjh[k@ Date of Hearing : 05/01/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 09/01/2015

vkns'k@ ORDER

PER: T.R. MEENA, A.M.

This is an appeal filed by the department against the order dated

18/08/2011 passed by the learned CIT(A), Ajmer for A.Y. 2008-09. The

effective grounds of appeal are as under:-

"In view of the facts and circumstances of the case the learned CIT(A) Ajmer has erred in:-:-

2 ITA 909/JP/2011_ ITO Vs Pratap Choudhary

1) Deleting the addition of Rs. 27,88,000/- on account of unexplained deposits in IDBI saving bank account made by A.O. U/s 69A of the I.T. Act, 1961, when the assessee in spite of sufficient opportunities offered by the A.O. failing to explain the source of deposit;

2) Deleting the addition of Rs. 27,88,000/- on account of cash deposits on the basis of fresh evidences produced before him under Rule 46A, which as per provisions of Rule 46A(1)(b) were not admitable by the CIT(A);

3) Deleting the addition of Rs. 2,42,061/- under the head Fuel Expenses without appreciating the facts that the vouchers for expenses are self made;

4) Restricting the addition to Rs. 8,000/- under the head of phone and mobile expenses without appreciating the facts that the vouchers for expenses are self made;

5) Restricting the addition to Rs. 25,000/- under the head of Repair & maintenance expenses without appreciating the facts that the vouchers for expenses are self made;

6) Deleting the addition of Rs. 8,375/- under the head office expenses without appreciating the facts that the vouchers for expenses are self made;

7) Deleting the addition of Rs. 62,820/- on account of salary expenses without appreciating the facts of the case that vouchers for expenses are self made;

8) The appellant craves to add, amend, alter, delete or modify the above grounds of appeal before or at the time of hearing."

2. The assessee is a transporter. He filed his return of income on

06/2/2009 for A.Y. 2008-09 declaring total income of Rs. 1,95,250/-.

3 ITA 909/JP/2011_ ITO Vs Pratap Choudhary

The case was scrutinized U/s 143(3)/144 of the Income Tax Act, 1961

(hereinafter referred as the Act). The Assessing Officer issued various

letters to the assessee, which had not been responded. The last notice

was served by the learned Assessing Officer personally upon the

assessee and his brother. On 20/11/2010, Advocate of the assessee

attended and requested to some more time to reply the query raised by

the Assessing Officer. On his request, the case was adjourned to

14/12/2010. On that date also, he had not attended the proceedings.

On 22/12/2010, the assessee was contacted on telephone and

requested to attend the proceeding on 23/12/2010 but even on that

date also, no body attended the proceeding. The case was barred by

limitation on 31/12/2010, therefore, the learned Assessing Officer

decided the case on the basis of material available with him. He

analysed the assessee's profit and loss account under the head business

income on account of JCB and tractor operation, fuel expenses, phone

and mobile expenses, repair and maintenance, office expenses, salary,

drawing, cash deposits in IDBI bank account. After discussing each

head, the learned Assessing Officer made total addition of Rs.

32,17,297/-

4 ITA 909/JP/2011_ ITO Vs Pratap Choudhary

3. Being aggrieved by the order of the Assessing Officer, the

assessee carried the matter before the learned CIT(A), who had allowed

the appeal partly by observing that the learned Assessing Officer

considered the entire sum deposited in the IDBI bank account at Rs.

27,88,000/- as unexplained deposit U/s 69A of the Act. The assessee

submitted reply before the learned CIT(A), which was remanded back

to the Assessing Officer and the learned Assessing Officer had

examined the books of account and reported that cash deposited in

IDBI Bank account is out of cash balance available in cash book on

various dates. Therefore, he deleted the addition of Rs. 27,88,000/-.

The disallowances made under the various heads and after considering

the remand report furnished by the Assessing Officer, the learned

CIT(A) confirmed Rs. 8,000/- out of phone and mobile expenses being

element of personal use and Rs. 25,000/- out of repair and

maintenance. The addition under the head fuel expenses and salary

expenses fully deleted by the learned CIT(A) on the ground that there is

no justification for making addition. Similarly, the addition made under

the head office expenses is also deleted as an ad hoc addition made by

the Assessing Officer.

5 ITA 909/JP/2011_ ITO Vs Pratap Choudhary

4. Now the Revenue is in appeal before us. The learned Sr. D.R.

argued that no opportunity has been allowed by the learned CIT(A)

before allowing the appeal partly in favour of the assessee. The fresh

evidence produced by the appellant before the CIT(A) were not

allowable under Rule 46A of the Income Tax Rules, 1961 (in short the

Rules) as the assessee has provided sufficient opportunity by the

Assessing Officer, therefore, there was no reason to accept the addition

evidence in assessee's case. The learned CIT(A) had not recorded the

reasons for admitting the addition evidence to decide the appeal.

5. No one appeared on behalf of the assessee during course of

hearing, therefore, we took the decision on the basis of relevant facts

available on the record.

6. We have heard the rival contentions of SR. D.R. and perused the

material on record. It is evident from the order of the learned CIT(A)

that no findings has been given before admitting the additional

evidence whether case is covered under Rule 46A of the Rules or not.

He simply took the remand report from the Assessing Officer, which is

also not considered fully as he objected the admission of additional

evidence. Therefore, in the interest of justice, the order of the learned

CIT(A) is set aside to reconsider all the submissions made by the 6 ITA 909/JP/2011_ ITO Vs Pratap Choudhary

learned Assessing Officer in his remand report and give specific finding

on Rule 46A of the Rules and pass order as per law.

7. In the result, the revenue's appeal is allowed for statistical

purposes only.

Order pronounced in the open court on 09/01/2015.

Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼Vh-vkj-ehuk½ (R.P.Tolani) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 09th January, 2015

*Ranjan

vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- The ITO, Kishangarg

2. izR;FkhZ@ The Respondent- Shri Pratap Choudhary, Kisangarh.

3. vk;dj vk;qDr¼vihy½@The CIT(A), Ajmer.

4. vk;dj vk;qDr@ CIT, Jaipur

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (ITA No. 909/JP/2011)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@Asst. Registrar