Appellantcommissionerofincometax,Bilaspur v. Jagdish Prasad Bansal

<-;.IN THE HI6H COURT OF JU&ICATURE AT BILASPUR.CHHATTCSGARH Ojyjgj.IMC^ME"?AlAPPeAfcNO. ^W/'0_^2QOa-'/'Smmissioner of Income Tax,APPELL.ANTBilaspur, District- Bilaspur(C.6.)'»•. '?•l6a-'^-VERSUSiish Prasad Bansal, R/oRESPONDENT^Bansat Niwas, Sakti, District-Janjgir- Champa (C.6.)INCOME TAX APPEAL UNbER SECTTON 260-A OF THEINCOMETAX. 1961 HIGH COURT OF CHHATTISGARH AT BILASPUR Tax Case No. 57 of 2010 AppellantCommissionerofIncomeTax,Bilaspur Vs. Jagdish Prasad Bansal Respondent INCOME TAX APPEAL UNDER SECTION 260-A OF THE INCOMETAXACT, 1961 DB:Hon'ble Shri Satish K Aanihotri &Hoa'ble Shri Radhe Shyam Sharma. JJ. Present:ShriRajeevShrivastavawithShriSameercounsel for the appellant.Shri Neelabh Dubey, counsel for the respondent. Shrivastava, JUDGMENT (Passed on 18th day of October, 2011) Per SATISH K. AGNIHOTRI, J ^ 1. The Assessing Officer (for short 'the AO') Additional Commissioner,Income Tax, passed the assessment order under section 144 oftheIncome Tax Act, 1961 (for short 'the Act") on 03.12.2007 for theassessment year 2005-2006 on the basis of proceedings initiatedafter survey under section 133-A of the Act assessing the totalincome of the assessee to the tune of Rs. 1 ,44,89,040/-.Income Tax, passed the assessment order under section 144 oftheIncome Tax Act, 1961 (for short 'the Act") on 03.12.2007 for theassessment year 2005-2006 on the basis of proceedings initiatedafter survey under section 133-A of the Act assessing the totalincome of the assessee to the tune of Rs. 1 ,44,89,040/-. 2. Thereagainst,theassesseepreferredanappealbeforetheCommissioner of Income Tax, (Appeals) {for short 'the CIT(A)}. Theassessee filed an application under Rule 46-A seeking admission ofadditional evidence mainly in the form of confirmation letters fromvarious persons. Copies of the same were forwarded to the AOunder the office letter in ITA No. 165/CIT(A)/BSP/07-08/385 datedCommissioner of Income Tax, (Appeals) {for short 'the CIT(A)}. Theassessee filed an application under Rule 46-A seeking admission ofadditional evidence mainly in the form of confirmation letters fromvarious persons. Copies of the same were forwarded to the AOunder the office letter in ITA No. 165/CIT(A)/BSP/07-08/385 dated 14.03.2008, calling for his report and comments on the same. Areminder under this office letter of even no. dated 23.05.2008 wasissued. In response to the above letter, the AO under his F.No.Addl.CIT/R-2/BSP/Report/08-09//504 dated 25.04.2008 had soughttwo weeks time for the submission of his report/comments. Hisreport/comments in this regard were received under his letter dated01.05.2008. A copy of thesame wasmadeavailable to theappellant's A.R.on which he filed his counter comments. The CIT(A) held that the assessment order passed cannot be categorized asa "best judgment assessment" as it not only suffer with technical andproceduralirregularities but also the same waspassedinanarbitrary and capricious manner in violation of the principles ofnatural justice. The entire additions made by the AO to the tune ofRs. 1,41,14,208/- weredeleted. 3. Thereagainst, the assessee preferred an appeal before the IncomeTax Appellate Tribunal, Bilaspur Bench, Bilaspur, (for short 'theTribunal') be\ngI.T.A. no. 243/Jab/2008, and the revenue alsopreferred an appeal being I.T. No. 252/Jab/2008. The Tribunal,csonsidering the case at length, held as under: "21.1 After hearing the rival submissionsand on careful perusal of the materialsavailable on record, keeping in view of thefact that the Ld. DR could not contradictthe findings of the Ld. CIT (A), we find noinfirmity in the order of the Ld. CIT (A).therefore, the order of the Ld. CIT (A) onthe issue is upheld and the ground takenby the Revenue is dismissed. 22. Ground nos. 15 and 16, being generalin nature, do not require any adjudication.Therefore, these grounds aredismissed. 23.Inthe< result,theappealof theAssesseeisdismissedwhereasthe <, \[•••^-:-,T appeal of the Revenue is allowed in partfor statistical purpose." "21.1 After hearing the rival submissionsand on careful perusal of the materialsavailable on record, keeping in view of thefact that the Ld. DR could not contradictthe findings of the Ld. CIT (A), we find noinfirmity in the order of the Ld. CIT (A).therefore, the order of the Ld. CIT (A) onthe issue is upheld and the ground takenby the Revenue is dismissed. 22. Ground nos. 15 and 16, being generalin nature, do not require any adjudication.Therefore, these grounds aredismissed. 23.Inthe< result,theappealof theAssesseeisdismissedwhereasthe <, \[•••^-:-,T appeal of the Revenue is allowed in partfor statistical purpose." 4. Contention of Shri Shrivastava, learned counsel appearing for therevenue that the finding is perverse as the C1T (A) and the Tribunalhas completely ignored the fact that several notices were issued tothe assessee and the assessee failed to respond to the said notices.Thus,the findingthatit wasnotacaseof "best judgmentassessment", is contrary to the facts. 5. On the other hand, Shri Dubey, learned counsel appearing for theassessee submits that the assessee made a request on 30.11.2007for adjournment on the ground of his personal illness which wasdeclined and as such, no opportunity of hearing was afforded to theassessee to put forward his case. This is also evidentfrom theobservations made by the CIT (A). 6. On having considered fhe submissions of the rival parties andperusing the pleadings and documents appended thereto, the CIT(A)after having considered the case at length, observed as under: "I have perused the assessment records ofthecase.It is seen that there has been longinten/ening periods during the course of theassessment proceedings without any specificandcogent reasons,whichhave definitelycontributedtotheabnormaldelayinthefinalization of the assessment in this case.Further,theissuesinvolvedinthiscasecannot be appreciated properly in the absenceof the assessee. It is also found that due tonon-grantofproperopportunitiestotheassessee, various documentary evidences inthe form of confirmation letters, etc. could notbe filed by the assessee before fhe AO, whichhavebeen filedduringthecourse of theappellate proceedings before me, alongwith anapplicationunderRule46A.seekingadmission of the S3me. Having regard to thefacts and circumstances of the cases, theseadditional evidences are admitted in terms of Rule46A.Thesearebeingdiscussedatrelevantplaceswhiledealingwiththerespective issues." 7. Relying on several decisions, the CIT (A) hetd that the case cannotbe categorized as["best]judgment assessment" and thereafter, haddiscussed each and every issue raised therein by the parties. TheTribunal has concurred with the findings recorded by the CIT (A) andfurther, it has not been demonstrated that finding was based on noevidence or it has not been properly appreciated and as such, therewas any perversity. 8. The substantial question of law arises for consideration only if thereis perversity in the finding of fact. The Supreme Court, in VijayKumar Talwar v.Commissioner of Income Tax,Delhi, held asunder: "23.Afindingoffactmaygiverisetoasubstantial question of law, inter alia, in the eventthe findings are based on no evidence and/orwhilearrivingatthesaidfinding,relevantadmissible evidence has not been taken intoconsideration or inadmissible evidence has beentaken into consideration or legal principles havenot been applied in appreciating the evidence, orwhentheevidencehasbeenmisread.(SeeMadan Lal v. Gopi, Narendra Gopal Vidyarthi v.Rajat Vidyarthi,Commr.of Customs v.VijayDasharath Patel, Metroark Ltd. v. CCE and W.B.ElectricityRegulatoryCommissionv.CESCLtd.)". 9.ThisCourt,inCommissionerofIncomeTax,Raipurv.ShriMangalchand Parekh, GE Road, Rajnandgaon , observed as under: "30.In view of the foregoing, we are of theconsidered opinion that the findings recorded bythe CIT (A) and affirmed by the ITAT are basedonproper appreciationof factsandarenotperverse, being correlated with each and every \ ini / Amit 10. 9.ThisCourt,inCommissionerofIncomeTax,Raipurv.ShriMangalchand Parekh, GE Road, Rajnandgaon , observed as under: "30.In view of the foregoing, we are of theconsidered opinion that the findings recorded bythe CIT (A) and affirmed by the ITAT are basedonproper appreciationof factsandarenotperverse, being correlated with each and every \ ini / Amit 10. transaction. Thus, the issue is purely question offacts. No question of law, more so substantialquestions of law, as aforestated, arise in the factsof the case. 31. As an upshot, both the appeals being bereft ofmerit, are liable to be and arehereby dismissed." The instant appeal involves only on the question of facts, as thefacts have been determined by the CIT (A) and affirmed by theTribunal. Thus, it is a question offacts alone and no question of law,much less substantial question of law,arisesin this case forconsideration under section 260-A of the Income Tax Act. Thus, this appeal being bereft of merit, is dismissed. Sd/-Satish K. AgnihotriJudge Sd/-Radhe Shyam SharmaJudge