FIYAZ AHMAD KHAWAJA ,BANDIPOR V. INCOME TAX OFFICER , BARAMULLA

ITA 382/ASR/2023

AI Insights

The case involves an appeal by Fiyaz Ahmad Khawaja against the order of the CIT(A) National Faceless Appeal Centre, Delhi, which confirmed the addition of undisclosed income by the Income Tax Officer, Ward 3(5), Baramulla. The addition was based on cash deposits amounting to Rs.48,27,500 in the assessee's bank account during the financial year 2011-12, which were treated as undisclosed income. The assessee argued that these deposits were business receipts and not undisclosed income. The Tribunal found that the assessee was not given a proper opportunity of hearing as the notices were issued to an incorrect address. Consequently, the Tribunal remanded the matter back for a fresh assessment, allowing the assessee to present his case and evidence properly.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 396619 (ITAT-AMRITSAR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Business income; Opportunity of being heard
• Section: 148; 142(1); 133(6)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (HYBRID COURT) BEFORE SH. MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER AND SH. UDAYAN DASGUPTA, JUDICIAL MEMBER I.T.A. No. 382/Asr/2023 Assessment Year: 2012-13 Fiyaz Ahmad Khawaja S/o Ghulam Hassan Khawaja Trigam Sumbal Sonawai, PC Sonerwani, Near Darulalun, Bandipora 193502, J & K. [PAN: BORPK 2567Q] (Appellant) Vs. Income Tax Officer, Ward 3(4), Baramulla Income Tax Office, Jammu & Kashmir 193101 (Respondent) Appellant by Respondent by : : Sh. P. N. Arora, Adv. Sh. Rajiv Wadhera, Sr. D. R. Date of Hearing Date of Pronouncement : : 21.04.2025 29.05.2025 ORDER Per Udayan Dasgupta, J.M.: This appeal is filed by the assessee against the order of ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi dated 14.11.2023 passed u/s 250 of the Income Tax Act, 1961 which has emanated from the order of the Income Tax Officer, Ward 3(5), Baramullla dated 04.12.2019 passed u/s 144/147 of the I.T. Act, 1961. 2 I.T.A. No. 382/Asr/2023 Assessment Year: 2012-13 2. The facts emerging from the records are that the assessee has deposited cash in his bank account with SBI/Pattan, (A/c No. xxxx20966) amounting to Rs.48,27,500/- during the financial year 2011-12 and in absence of any regular return on record and no response to notices issued u/s 133(6) of the Act, proceedings were initiated vide notice u/s 148 on 25.03.2019 after necessary approval from Higher authorities. Subsequently, notices u/s 142(1) were also issued on various dates followed by final show cause notice dated 24.10.2019 and all has remained un-complied. In absence of any representation from the assessee in response to various notices issued, the assessment was completed ex-parte on a total income of Rs.54,03,175/-. 3. The matter was carried in appeal before the first appellate authority and the written submissions were filed in course of appellate proceedings. It was submitted that the assessee is engaged in business and in the instant case, the entire deposit in bank account has arisen out of sale proceeds, but the same has been treated as undisclosed income of the assessee which is not as per the provisions of law and it was the claim of the assessee that only the profit percentage embedded in such gross receipts (turnover) which should be brought to tax and not the entire deposit. However, the ld. CIT(A) has confirmed the addition by observing as follows: (relevant portion reproduced) 3 I.T.A. No. 382/Asr/2023 Assessment Year: 2012-13 “5.5 In the absence of any material/explanation or evidence in support of credit entries in the SBI bank account, I infer that the appellant has failed to prove that the deposits in bank are business receipts or sales. It is observed that although the appellant has submitted the copy of Adhar Card but the documents of business involved is not submitted. Hence, the action of the assessing officer is confirmed and the ground nos. 3 and 4 are dismissed accordingly.” 4. Now, the mater is in appeal before the Tribunal on the grounds contained in the memorandum of appeal. The ld. AR of the assessee submits that no proper opportunity of hearing has been granted by the Assessing Officer because the notice has been issued at a wrong address. He further submitted that the re-assessment proceedings has been initiated on the basis of information received from banks regarding deposit of cash and it was a non PAN case and he submits that the address mentioned on the bank statement was Zangam Pattan, Baramullah, Jammu & Kashmir 193121 but no notices has been issued and served on the assessee on this particular address. He further stated that Aadhar card of the assessee which is issued on 12.10.2014 stipulates the same address at Zangam Pattan, Baramullah as stated in the bank statement. 5. The ld. DR submitted that the notices u/s 148 and subsequent notices u/s 142(1) were all issued through speed post on the address as stated in the PAN data base, which is Trigam Sumbal Sonawari near Darul Uloom Badipora and none has returned unserved. 4 I.T.A. No. 382/Asr/2023 Assessment Year: 2012-13 6. We have heard the rival submissions and considered the materials on record. We find that in course of appellate proceedings before the Tribunal, the assessee has submitted a paper book containing copies of bank statement, copies of Aadhar card and a certificate issued by the office of the Deputy Commissioner, Baramullah, certifying the residential address of the assessee as Tehsil Pattan, District Baramullah, and the assessee has also filed copies of the cash flow statements (page nos. 25 to 29 of the paper book) explaining the source of the cash deposited in bank on different dates and other incidental papers. It is observed by us from the copy of the bank statement furnished, that there are transactions of debits and credits in the said bank account throughout the entire financial year. It is also seen that there are deposits of cash on various dates, as well as withdrawals of cash from the said bank account throughout the entire financial year. The ld. CIT(A) has only considered the deposit part (credits in the said bank account without considering the withdrawals) and the submission of the assessee is that these transaction relates to the assessee’s business and can be properly explained provided an opportunity of fresh hearing is granted. 7. We also note that the ld. first appellate authority has recorded a finding that evidence relating to existence of business has not been produced by the assessee and as such, the genuineness of the business activities could not be said to have been proved. However, considering the factual issues, we are of the opinion that interest of 5 I.T.A. No. 382/Asr/2023 Assessment Year: 2012-13 justice will be served if the matter is remanded back to the files of the ld. Assessing Officer for fresh assessment and we also direct the assessee to furnish all necessary documentary evidences relating to its business activity along with the cash flow statement and to fully explain the source of the cash deposit in the bank as well as the utilization of the withdrawals from the said account and to fully co-operate in fresh assessment proceedings. The assessee will be allowed reasonable opportunity of being heard. Notices to be issued as per the provisions of section 282 of the Act (read with rule 127 of the I.T. Rules, 1962) at the proper address has contained in the bank statements and certified by the Deputy Commissioner of Baramullah. 8. Since we have set aside the matter for fresh assessment, the legal grounds of appeal are not adjudicated upon. All legal contentions are left open. 9. We have not expressed any opinion on merits. 10. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in accordance with Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1963 as on 29.05.2025. Sd/- Sd/- (Manoj Kumar Aggarwal) (Udayan Dasgupta) Accountant Member Judicial Member *GP/Sr.PS* Copy of the order forwarded to: (1)The Appellant: 6 I.T.A. No. 382/Asr/2023 Assessment Year: 2012-13 (2) The Respondent: (3) The CIT concerned (4) The Sr. DR, I.T.A.T True Copy By Order "