TaxTMI 
TaxTMI 
2024 (7) TMI 1700
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....s or and further contrary to the real facts of the case hence the same may kindly be quashed. 2. The ld. CIT(A) has grossly erred in law as well as on the facts of the case in passing ex-party order without providing adequate and reasonable opportunity of being heard in the gross breach of law. Hence the additions so made by the ld. AO may kindly be quashed and delete. 3. Rs.46,00,000/- : The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the addition of Rs.46,00,000/- made by the ld. AO on account of cash deposited in the bank account during the year which was to be stated from the sale of agriculture and the sale consideration received on the sale of agriculture land was out of the preview of capital assets i.e outside the scope of Sec. 2(14), i.e is exempt income, also erred in not invoking any provisions of law while making the addition. The Ld. AO and CIT(A) both have also erred in not considering the vital facts and material available on record in their true perspective and sense available on record. Hence the addition so made by the ld. AO and confirmed by the ld. CIT(A) is also being contrary to the real facts of the ....
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....vation and Decision It is observed from the records that the appellant was provided multiple opportunities of being heard by way of issue of hearing notices. But appellant has not responded to the said notices. From the non responding conduct of the appellant it may be concluded that he is not interested in completing the appeal proceedings. To reach the finality of this appeal the following judgments are refer to 4.1 The law aids those who are vigilant, not those who sleep upon their rights. This principle is embodied in the well-known Latin dictum, VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT. The conduct of the Appellant, as inferred from the aforesaid table, evidences that the Appellant fails on this principle of equity. Even the Hon'ble Courts, in various proncuncements, have frowned upon the Appellants who file appeals but thereafter do not take any further interest in prosecuting those appeals. 4.2 The Hon'ble Income Tax Appellate Tribunal - Kolkata in the case of Pradeep Kumar Jhawar Kolkata vs. DCITCCXXI (15 March, 2016) (ITA Nos. 450/Kol/2013 for Asstt. Year 2006-07) dismissed the appeal of the Appellant for nonprosecution. ....
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.... Therefore, I have reason to believe that income of Rs. 58,00,000/- has escaped assessment in the hands of assessee for the A.Y. 2013-14 in the light of the provisions of section 147 of the I.T. Act. Issue Notice u/s 148 of I.T. Act, 1961 to the assessee for A.Y. 2013-14." In response thereto the assessee has filed the ITR on dt. 17.03.2018 declaring the total income of Rs.4,87,176/-. Thereafter the ld. AO has issued the notice u/s 142(1) and 143(2) in response there to the assessee has filed the reply/information and details. The ld. AO after considering the same in partly has stated that "On the date of hearing assessee has filed the reply, copy of bank statement and computation of total income. On the perusal of the reply/information/documents furnished by the assessee it is found that the assessee received income from bank interest. On perusal of the computation of the total income of the assessee it is found that assessee has shown Rs.12,00,000/- received cash on the sale of two agriculture land. While the assessee has received Rs.58,00,000/- cash from the sale of agriculture land. Rs.12,00,000/- may be accepted as cash received from the sale of ....
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....ns recorded. Which shows that the ld. JCIT has not applied his mind on the reasons recorded nor given satisfaction on the reasons recorded. Further the ld. JCIT has given consolidated approval of 8 case in one letter and satisfaction together in one shot of 8 cases/assessee's through one letter dt. 06/03/2018 (PB2). Further the ld. JCIT has not stated under which section he has given the approval because there is no mention of Sec. 151 in the letter dt. 06.03.2018. All these this show how the JCIT has acted in very formal way. On perusal of the assessment order and documents it may be possible that there may be no approval in original letter or documents. The document of approval may be in the photocopy. How the approval can be given consolidated of all the 8 different assessee's in one documents, all are the independent or separate assessee and reasons/issue are different. Thus it all shows how the wrong and illegal manner have been adopted by all the authorities. On this preposition and issue kindly refer the decision of this Honble ITAT in the case of Sh. Satya Naraya Bairwa v/s ITO in ITA No.867 & 869/Jp/2018 dt. 15.09.2021 Copy is enclosed, wherein under the same facts and cir....
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....rcumstances of the case as well as the judicial pronouncements qua the issue under consideration, we find merit in the contention of the ld AR, therefore, we quash the proceedings U/s 147 of the Act." Here is the same position. 1.2.3 Thus the ld. JCIT has not applied the mind on the Reasons recorded and on this preposition we also would like to draw your kind attention toward the recent decision of this Honble ITAT in the case of Anshuman Singh V/s ACIT Circle-1 Jaipur 733 & 739/Jp/2023 dt 10.04.2024 where it has been held The Bench has meticulously gone through the orders of the lower authorities and taken in the consideration the oral arguments advanced by the ld. AR of the assessee encountering the assessment order as invalid and beyond jurisdiction. It is noted on perusal of the reasons recorded and approval u/s 151 by the competent authority indicates that Pr. CIT has not applied his mind on the reasons recorded by lower authorities and he has only expressed or mentioned 'Yes' on the reason forwarded (PBP-5). It is worthwhile to mention that as per decision of Hon'ble Delhi High Court in the case of Pr. CIT vs. N. C. Cables Ltd.(2017) 98 CCH 0010 whe....
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.... u/s 148 of the Act and consequent proceedings needs to be quashed for which we rely on the following judgements. Shri Satyanarayan Bairwa vs. ITO Ward 2(4), Jaipur ITA No. 867 & 869 JP/2018, dated 15/09/2021 (Jaipur ITAT), relevant part of judgement is as follows; "19. We have considered the rival contentions of both the parties and perused the material available on record. From perusal of the record, we observed that the A.O. has reopened the case of the assessee for escaping the income of Rs.1,15,00,500/- on account of cash deposit in his bank account and assessee has not filed his return of income and issued notice u/s. 148 of the Act on 29.03.2016 after recording reasons that income of assessee had escaped assessment in the meaning u/s 147 of the Act. Thereafter the AO framed assessment u/s. 144 r.w.s. 147 of the Act by making addition of Rs.1,15,00,000/- and the ld. CIT(A) upheld the order of AO. Before us the ld. A/R has drawn our attention to the reasons recorded and satisfaction of the Pr. CIT and Addl. CIT placed at page No. 10-11 of the assessee's paper book where the Addl. CIT has mentioned only "Recommended" and Pr. CIT has mentioned only "Yes",....
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....ssee was at Sr. 46 out 10 of 56 assessee's and even there was no tick on the name of the assessee in the approval list, which creates a doubt that the approval has been received before the issue of notice u/s 148 of the Act as the approval letter lying on the file after issuance of the notice u/s 148 or not before or attached with the notice u/s 148 and may reach in the office of the AO after 31.03.2016. Thus, in our view, approval u/s 151 cannot be given of all the 56 assessee's in a single documents, as all assessee's are the independent and separate also the reason recorded are different in each case and it is not possible that there shall be same reasons. Looking to these facts and record it is also held that the procedures and way of approval and satisfaction is not proper. Here AO initiated proceedings u/s. 147 r.w.s. 148 on basis of information furnished and CIT gave approval without applying his mind in slipshod manner. As approval/sanction given by CIT was without recording his own independent satisfaction as noted above, therefore the reopening was not sustainable as per above judicial pronouncements and irregularities noted. There were clear irregularities an....
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....any provisions of law. The ld. AO has not stated under what provision of law he has made addition and under what head whether, under business or trading income, agriculture income, capital gain or u/s 48, 56 or u/s 68 or 69. Thus the addition so made without any provision of is also against the law and liable to be deleted on this ground alone. When the ld. AO has not invoked any provision of law then also how the ld.AO can make the addition. When in the law and in the Act for each and every offence specific provisions are given to held any person as victim defaulter, then without applying any provision for that a person cannot be taxed and penalized. When the ld. AO himself has not stated that under what provision the assessee liable to be taxed or penalized or under what provision his offence falls then how the addition can be made. on this preposition we also would like to draw your kind attention toward the recent decision of this Honble ITAT in the case of Arvind Kumar Nehra V/s ITO Ward 7(1), Jaipur 32/Jp/2024 dt 10.04.2024 where it has been held "It is also noteworthy to mention from the entire conspectus of the case that the AO has also not invoked any pro....
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.... which is situated out of the Municipal limit, then he made the claim in the appeal that he has wrongly shown the LTCG and no addition is required to be made on account of LTCG and wrongly paid the tax, in appeal the honble accepted the same and held that "Since now before us, the assessee has successfully proved by placing on record the documentary evidences that the land in question at village Machhwa is 17 KM away from Jaipur and this village is having population of 2453 and land of the assessee is used for agriculture purposes as discussed by us in the preceding para of this order, therefore, keeping in view the totality of facts and circumstances and also keeping in view all the documentary evidences placed on record, we are of the view that the land in question of the assessee was situated beyond 8 KM from the municipal limits of Jaipur and was being used for agricultural purposes and was thus outside the scope of Section 2(14) of the Act and therefore, any gain on sale of the said land is exempted from tax. Thus, we allow these grounds of appeal and directed to delete the addition. For full facts and arguments kindly consider the whole order. 5. Ar....
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.... Dilip Kumar And Company And Ors., (2018) 9 SCC 1, had reiterated these principles. It was a case where on a reference to the Larger Bench the Supreme Court was considering a question whether an ambiguity in a tax exemption provision or notification, the same must be interpreted so as to favour the assessee. Making a clear distinction between a charging provision of a taxing statute and exemption notification which waives a tax or a levy normally imposed, the Supreme Court observed as under:- Kindly refer siemens financial services pvt. Ltd. vs. DCIT & ORS. August 25, 2023 (2023) 117 CCH 0259 MumHC (2023) 334 CTR 0825 (Bom),(2023) 457 ITR 0647 (Bom) Further, it is contended that it is settled law that while construing penal statutes and taxation statutes, the Court has to apply strict rules of interpretation of Article 265 of the Constitution which prohibits the State from extracting tax from the citizen without authority of law. The natural corollary to the said provision is that State cannot burden the citizen without the authority of law and thus, taxation statutes has to be interpreted strictly. The Hon'ble Supreme Court in the case of Commissioner of Customs v. Dilip ....
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....pparent on the facts and circumstances of the present case, that a mere typographical error committed by the assessee cannot cost them payment of excess tax as collected by the Revenue. Certainly, the denial for repayment of such excess collection would amount to great injustice to the Assessee. (iii) No tax can be collected beyond jurisdiction and even if at all it has been collected or deposited suo-moto by an assessee without there being any liability, then the same cannot be retained by the department in view of Article 265 of the Constitution of India which expressly says that "Taxes not to be imposed save by authority of law. No tax shall be levied or collected except by authority of law." 6. AO admitted amount deposited in bank out of amount received on sale consideration of agriculture land: Further when in the present case there is no dispute regarding the cash deposited was from the cash received on the sale consideration of agriculture land as the ld. AO himself admitted and thus not required any other evidence. And when the sale consideration is not taxable and is deposited in the bank account no addition can be made whether it is disclosed or not. We ....
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....f agricultural land-But AO rejected assessee's plea-Addition was made amount to Rs.44,00,000/-with total income of assessee-CIT(A) rejected assessee's plea-Held, Assessee was able to proof that sales transaction was executed on 23/05/2006-Crediting of cheque amount to Rs. 15 lakh is fully related on sales of agricultural land-AO had not agitated issue related calculation of capital gain and nature of property which was sold during impugned year-CIT(A) has not agitated issue which was not part of assessment year-During assessment proceedings assessee submitted affidavit and payment receipt-AO had not exercised his jurisdiction to crossexamine assessee and witness-Rather only to accept statement from purchasercompany related transaction-Assessee filed an affidavit dated 26/12/2014 in which assessee has explained that he is doing agriculture farming and have no other source of income-Assessee further stated that deposit in bank was made out of sale proceeds of agriculture land against which purchaser paid Rs. 15 lakh through cheque (executing for Sale Deed) and paid in cash Rs. 44,00,000/- in token of receipt of sale-Revenue authorities never confronted affidavit of assessee duly file....
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....s not justify that he has applied his mind while giving sanction for issue of notice u/s 148 of the Act and there is no as such satisfaction by the JCIT. Therefore, notice u/s 148 of the Act is bad in law in this case. As regards the merits of the case, the ld. AR of the assessee submitted that out of sale proceed of Rs. 58,00,000/- and 12,00,000/- considered as sale proceed of land and not considered the same as chargeable to tax being agricultural income being exempt. However, he has added at Rs. 46,00,000/- and that too is not known as to under which head of income, he is adding that income, chargeable to tax. He vehemently argued that once the assessee pleaded that he does not have any other income except this proceed on sale of agricultural land. The ld. AO when accepted this fact for Rs. 12,00,000/- why not for other money. The ld. AR of the assessee relied upon the finding of AO. 8. Per contra, the ld. DR supported the orders of lower authorities. The ld. DR also filed report of the ld. AO as regards the approval taken for issue of notice u/s 148 of the Act. The said factual report of ld. AO filed by ld. DR reads as under:- "Sub : In the appeal matter pending bef....
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....ssessment order. AO has already accepted the claim of the assessee and has given exemption of the same amount and exemption u/s 54 for capital gain arouse from the same. Copy of assessment order and computation sheet submitted by the assessee is enclosed. Therefore, objection submitted by assessee is not acceptable. 5 AO admitted amount deposited in bank out of amount received on sale consideration of agriculture land. When finalizing assessement order the AO mistakenly typed the amount of Rs. 4600000/- was also received from sale proceeds of agricultural land. However rectifying the same u/s 154 of IT act dated 23.12.2020, wherein, the AO has rectified the mistake and clearly mentioned that the addition was made u/s 68 rws 115BBE and taxed accordingly. Therefore, objection submitted by assessee is not acceptable. The requisite report is submitted for your kind information and necessary action." The ld. DR thus, submitted that the contention raised by the assessee is not tenable and all the issue raised by the ld. AR of the assessee the same is replied by the ld. AO saying as why that contentions are not correct. The ld. DR submitted that ld. AO already given the cre....
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....ubmitting documentary evidence which has been partly accepted and partly disapproved. The Apex Court in the case of Sreelekha Banerjee vs. CIT (1963) 49 ITR 112 (SC) has held that the department cannot by merely rejecting unreasonable a good explanation converting good proof into no proof. Thus, the contention of the assessee cannot be totally brush aside and the surplus money deposited by the assessee as explained is required to be considered out of the agricultural land proceed and since that land proceed has already been considered while assessing the income of the assessee as exempt the remaining amount of Rs. 46,00,000/- cannot be held as income of the assessee. The bench also noted while making the addition the ld. AO did not mention any section under which that income is made chargeable to tax in the hands of the assessee. Therefore, even on that account also addition made by the ld. AO is not sustainable. Based on these observations, we direct the ld. AO to delete the addition of Rs. 46,00,000/- made in the hands of the assessee. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 25/07/2024. ============= Document 1 à¤....