HARDEV KAUR,DELHI V. .ITO WARD -2 YANUNA NAGAR, YAMUNA NAGAR

ITA 757/CHANDI/2023

AI Insights

The case involves Hardev Kaur, the appellant, who filed a second appeal against the order of the CIT(A) sustaining the addition of Rs. 20,51,500 to her income under section 69A of the Income Tax Act, 1961, for unexplained cash deposits during the demonetization period. The Tribunal found that the CIT(A) had no express power to remand the case back to the Assessing Officer and should have examined the documents himself. The Tribunal also noted that the assessment order was passed without proper opportunity for the assessee to be heard, thus remanding the case back to the CIT(A) for a fresh decision.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 107659 (ITAT-CHANDIGARH)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2017-2018
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK VARDHAN
• Assessee Lawyers: VEDANT AGGARWAL
• Keywords: Set aside; Opportunity of being heard; Income from undisclosed sources
• Section: 143(3); 142(1); 143(2); 250; 143(1); 133(6); 69A; 246A

Judgement Text

"आयकर अपीलीय अिधकरण,चǷीगढ़ Ɋायपीठ “ए” , चǷीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH “A”, CHANDIGARH HEARING THROUGH: VIRTUAL MODE ŵी िवŢम िसंह यादव, लेखा सद˟ एवं ŵी परेश म. जोशी, Ɋाियक सद˟ BEFORE: SHRI. VIKRAM SINGH YADAV, AM &SHRI. PARESH M. JOSHI, JM आयकरअपील सं./ ITA NO. 757 /Chd/2023 िनधाŊरणवषŊ / Assessment Year : 2017-18 Hardev Kaur 302, Mahavir Apartments, Plot 5A Sector 22, Dwarka, Bagrola, South West Delhi- Delhi-110077 बनाम The ITO Ward-2, Yamuna Nagar ˕ायी लेखा सं./PAN NO: ABKPK9985F अपीलाथŎ/Appellant ŮȑथŎ/Respondent िनधाŊįरती की ओर से/Assessee by : Shri Vedant Aggarwal, Advocate राजˢ की ओर से/ Revenue by : Shri Vivek Vardhan, JCIT सुनवाई की तारीख/Date of Hearing : 15/10/2024 उदघोषणा की तारीख/Date of Pronouncement : 18/12/2024 आदेश/Order PER PARESH M. JOSHI, J.M. : This is an second appeal filed by the Assessee under section 253 of the Income Tax Act, 1961 (hereinafter referred to as Act) before this Tribunal. The assessee is aggrieved by the order bearing No. ITBA/NFAC/S/250/2023- 24/1056936567(1) dt. 10/10/2023 of the Ld. CIT(A) passed under section 250 of the Act which is hereinafter referred to as the “impugned order”. The relevant assessment year is A.Y. 2017-18 and the corresponding previous year period is from 01/04/2016 to 31/03/2017. 2. Factual Matrix 2.1 That a return of income at Rs. 4,50,000/- has been filed by the assessee on 31/03/2018 and that the same was processed under section 143(1) as such. The case was selected for limited scrutiny through CASS for the reasons “Large Value Cash Deposit during demonetization period as compared to returned income”. 2 Notice u/s 143(2) of the Act generated on the system was issued on 16/08/2018 and that the same was served upon the assessee through email. 2.2 A questionnaire alongwith the statutory notices u/s 142(1) dated 24/12/2019 was issued online for submission of information through online electronically in e-proceedings. That in compliance to the statutory notices, the assessee filed submissions through mail which was placed on record after downloading from the system. The assessee submitted online reply on 28/12/2019, wherein it is stated that the amount deposited Rs. 20,51,500/- in HDFC Bank account is the sale proceeds of the plot during the A.Y. 2015-16 for which the ITR has been filed and tax due has been paid at that time. From the perusal of written submission furnished by the assessee it is found that the assessee has not furnished registered sale deed for sale proceeds. Further during the course of the assessment proceedings, information u/s 133(6) was called from HDFC Bank, Yamunanagar, which has been obtained and placed on record. From the perusal of bank statement and the certificate from HDFC Bank it is found that the assessee has deposited Rs. 20,51,500/- on 05/12/2016 i.e during the demonetization period. 2.3 During the year under consideration, it was noted from the records that theassessee was maintaining following bank accounts linked with her PAN. Bank Account Number Bank Name & Branch A/c Holder 50100099153606 HDFC Bank Limited Hardev Kaur 2.4 It was also noted from the said bank accounts that during the year underconsideration, the assessee had made following cash deposits during demonetization period:- Sr. No. Cash deposited Bank A/c 1 Rs. 20,51,500/- 50100099153606 3 2.5 Thus, in view of the above discussion, an amount of Rs.20,51,500/- is treated asunexplained & out of unaccounted income of the assessee for the year under consideration as the assessee has not furnished any supporting documents of cash deposits and thus it is hereby added to the income of the assessee u/s 69A of the Act. Since the addition is made to the income of the assessee u/s 69A of the IT. Act, 1961, the same is taxed u/s 115BBE of the Income Tax Act, 1961.Accordingly, the income of the assessee is computed as under:- Returned Income 4,50,040/- Add: as discussed in para 5 above to be taxed @ 60% u/s 69A r.w.s. 115BBE 20,51,500/- Total Income 25,01,540/- 3. That the above assessment order bears No. ITBA/AST/S/143(3)/2019- 20/1023362041(1) dt. 29/12/2019. 4. That the assessee being aggrieved by the aforesaid assessment order dt. 29/12/2019 prefers first appeal u/s 246A of the Act before CIT(A) who by the impugned order has sustained the order u/s 143(3) dt. 29/12/2019 and further a direction was issued to Ld. AO to give credit to the source of cash deposit of Rs. 20,51,500/- on 05/12/2016 only on production of sale deed, cheque details, copy Income Tax Return for A.Y. 2015-16 etc. The appeal was allowed in a sense for the limited purpose of calling for these details and verification thereof. 5. The assessee being aggrieved by the “impugned order” prefers second appeal before this Tribunal against the impugned order and has raised following grounds of appeal in Form 36 before us: 4 1) On the facts and circumstances of the case and in law also Ld CIT(A) Unit -3, Coimbatore grossly erred in remanding back the matter for reconsideration & fresh assessment to Income Tax Officer without having any power for remanding back the issue for a fresh assessment. 2) On the facts and circumstances of the case and in law also Ld. A.O. grossly erred in making addition of Rs 20,51,500/- under section 69A of the Income Tax Act without considering the reply of assessee filed during assessment proceedings that the said amount belong to sale of property. 3) On the facts and circumstances of the case and in law also Ld. A.O. grossly erred in making addition under section 69A of the Income Tax Act without giving proper opportunity of being heard to the assessee. 4) On the facts and circumstances of the case and in law also Ld. A.O. grosslyerred in applying the provision of section 115BBE of the Act. 5) That the appellant craves his indulgence to add, amend, alter or delete thegrounds of appeal. 6. Record of Hearing The hearing before this Tribunal took place on 15/10/2024 when both the parties appeared before us. The Ld. AR for and on behalf of the assessee first contended that CIT(A) ought not to have remitted the case for limited purpose of calling for details and verification thereof as it amounts to remand of the case back to AO and for the said purpose the Ld. CIT does not have any express power. In fact he ought to have done due diligence of documents himself and cross verification of the details. Hence the Ld. CIT(A) has erred in law as he has no powers expressly to do the same. Next he contended that impugned order of assessment dated 29/12/2019 was passed without giving proper opportunity of being heard to the assessee and the Ld. CIT(A) ought to have set aside the said order of assessment dt. 29/12/2019 in interest of ends of justice. Per contra the Ld. DR has gone by the impugned order. 7. Observations, Findings & Conclusions 5 7.1 We now have to decide the legality, validity and proprietary of the impugned order basis material on record supra. 7.2 We at the outset itself hold that Ld. CIT(A) expressly has no power of remand and / or for remitting back the issue back to the file of Ld. AO as has been done in the present case with few riders / directions. We are of the considered view nothing prevented the Ld. CIT(A) to have called for Remand Report from the Ld. AO and after examining the same ought to have passed appropriate order. Needless to state power of CIT(A) is coterminous with that of Ld. AO. However since Ld.AR has contended that assessment order dt. 29/12/2019 itself was exparte as no opportunity was afforded it would be just fair and convenient that case be remitted back to the file of CIT(A). Considering this and considering the submissions of Ld. DR we set aside the impugned order and remand the case back to the file of Ld. CIT(A) to pass a fresh order on denovo basis as assessee before CIT(A) has not furnished any details on 03/12/2023 regarding the sale deed as well as bank statement in support of cash deposit made following the sale of plot which was not available before CIT(A). Sale is in F.Y. 2014-15 whereas cash deposit is made on 05/12/2016 which falls in F.Y. 2016- 17. Other material details is missing too. Refer the summary of discussion of impugned order at Para 5. Basis above premises we are of the considered view that in the interest of ends of justice the Ld. CIT(A) to himself call for necessary comments of the Ld. AO as 6 and by way of Remand Report after the assessee has furnished all the necessary and material particular with regard to source of cash deposited in bank account. With this direction appeal of the assesse is disposed off. 8. Order In result, impugned order is set aside back to the file of CIT(A) as and by way of remand denovo, with direction as stated above. 9. Appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 18/12/2024 Sd/- Sd/- िवŢम िसंह यादव परेश म. जोशी ( VIKRAM SINGH YADAV) (PARESH M. JOSHI) लेखा सद˟/ ACCOUNTANT MEMBER Ɋाियक सद˟ / JUDICIAL MEMBER AG आदेश कᳱ ᮧितिलिप अᮕेिषत/ Copy of the order forwarded to : 1. अपीलाथᱮ/ The Appellant 2. ᮧ᭜यथᱮ/ The Respondent 3. आयकर आयुᲦ/ CIT 4. आयकर आयुᲦ (अपील)/ The CIT(A) 5. िवभागीय ᮧितिनिध, आयकर अपीलीय आिधकरण, च᭛डीगढ़/ DR, ITAT, CHANDIGARH 6. गाडᭅ फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar "