SHAFIQUE MOHAMMAD YUSUF MOHAMMAD, Nagpur V. ITO-WARD-6(3), Nagpur

ITA 119/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1691 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 12-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Principle of natural justice; Additional evidence; Assessment record
• Section: 80C; 143(3)

Judgement Text

1 ITA NO. 119/NAG/2014 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 119/NAG/2014 ASSESSMENT YEAR S: 2009 - 10.. SHAFIQUE MOHAMMAD YUSUF MOHAMMAD, THE INCOME - TAX OFFICER, TAJ PALACE, RAYAL ARCADE, APP., V/S. WARD - 6(3), NAGPUR. CHARKHAMBA CHOWK, TEKA, NAGPUR - 440017. PIN AJWPM2885L. APPELLANT. RESPONDENT. APPELLANT BY : SHRI ABHAY AGRAWAL. &MR.SHAFIQUE MOH. YUSUF M OHD. RESPONDENT BY : SHRI NARENDRA KANE. DATE OF HEARING : 13 - 08 - 2015 DATE OF PRONOUNCEMENT : 28 TH AUGUST, 2015 O R D E R PER MUKUL K. SHRAWAT, J.M. . THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATING FROM THE ORDER OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 14 - 09 - 2013. THE GROUNDS RAISED AS PER THE APPEAL FILED WERE DESCRIPTIVE AS WELL AS ARGUMENTATIVE IN NATURE. DUE TO THAT REASON THE ASSESSEE HAS SUBMITTED A CON CISE D GROUNDS OF APPEAL REPRODUCED BELOW : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED AO AND LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE DEPOSITS OF RS.87, 56.,OOO IN THE BANK . ACCOUNT OF THE ASSESSEE REPRESENTS MONEY PAID BY MR, VIPIN AGRAWAL TO MRS. IRIS WILKINSON IN LIEU OF SETTLEMENT OF PROPERTY DISPUTE. 2 ITA NO. 119/NAG/2014 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED AO AND LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE AMOUNT OF RS.87,55,OOO WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE (I. E AGENT) ON BEHALF OF MRS. IRIS WILKINSON ( I .E PRINCIPAL). 3. . THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IEARNED AO AND CIT(A) ERRED IN NOT APPRECIATING THAT THE DEPOSITS OF RS.87,55,OOO IN THE ASSESSEE'S BANK ACCOUNT HAVE BEEN SUBSE QUENTLY. JEPAID ENTIRELY TO MRS. IRIS WILKINSON AND TH IS FACT IS SUPPORTED BY THE SWORN AFFIDAVIT OF MRS. INS WILKINSON . 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED AO AND LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT, THE ASSE SSEE BEING MENTALL SICK DURIN G T HE PERIOD OF ASSESSMENT & APPELLATE PROCEEDINGS, COULD NOT REPRESENT HIS CASE PROPERLY. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSEE WAS COMPELLED TO TAKE CONTRARY PLEAS DURING ASSESSMENT PROCEED INGS DUE TO THE THREATENING TACTICS EMPLOYED BY MR.VIPIN AGRAWAL. 6. THAT ON THE PRINCIPLES OF EQUITY AND NATURAL JUSTICE THE MATTER MAY KINDLY BE RESTORED BACK TO THE FILES OF LEARNED CIT(A)/AO FOR FRESH ADJUDICATION. 2. THE APPELLANT HAS ALSO RAISED AN ADDITIONAL GROUND WHICH IS AS UNDER : THE LEARNED AO ERRED IN DENYING DEDUCTION UNDER SECTION 80C IN RESPECT OF LIFE INSURANCE PREMIUM PAID 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DAT ED 12 - 12 - 2011 WERE THAT THE ASSESSEE IN INDIVIDUAL CAPACITY HAS FILED A RETURN OF INCOME DISCLOSING ` .1,49,510/ - . THE CASE WAS SELECTED FOR SCRUTINY AND IN COMPLIANCE OF THE NOTICE THE ASSESSEE HIMSELF HAD APPEARED BEFORE THE ASSESSING OFFICER. THE ASSESS EE HAD INFORMED THAT HE WAS EARNING INCOME BY SELLING FRUITS. THE ASSESSING OFFICER HAD FOUND THAT IN THE AXIS BANK LTD. THE ASSESSEE HAD MADE DEPOSITS OF ` .87,55,000/ - DURING THE FINANCIAL YEAR UNDER CONSIDERATION. THE ASSESSEE WAS ASKED TO EXPLAIN THE SO URCE OF D EPOSIT WHICH WERE FOUND CREDITED IN AXIS BANK. IN COMPLIANCE THE ASSESSEE HAD ATTENDED THE PROCEEDINGS AND STATED BEFORE THE ASSESSING OFFICER THAT THE SAID AMOUNT BELONGED TO ONE SHRI VIPIN KUMAR AGRAWAL, RESIDENT OF KALADUNGI ROAD, 3 ITA NO. 119/NAG/2014 M URWANI, HAL D W ANI, DIST. NAINITAL (UTTARAKHAND). IT WAS INFORMED THAT THERE WAS AN AGREEMENT ON 100 RUPEES STAMP PAPER DATED 18 - 11 - 2008 EXECUTED BETWEEN THE ASSESSEE AND SHRI VIPINKUMAR AGRAWAL. FURTHER IT WAS ALSO INFORMED THAT AS PER THE AGREEMENT THE AMOUNTS DEPOSI TED IN CASH BY MR. AGRAWAL SHALL BE WITHDRAWN WHEN REQUIRED BY HIM AND THE ASSESSEE SHALL BE PAID A COMMISSION OF 1% ON THE T R ANSACTION. CONSIDERING THE SAID EXPLANATION THE ASSESSING OFFICER HAD ASKED THE ASSESSEE TO FURNISH THE EVIDENCES. SIMULTANEOUSLY THE ASSESSING OFFICER HAS ALSO ISSUED A LETTER TO SHRI VIPINKUMAR AGRAWAL BUT THAT LETTER WAS RETURNED UNSERVED BY THE POSTAL AUTHORITIES. THEREAFTER THE ASSESSEE HAD SOUGHT ADJOURNMENT AFTER ADJOURNMENT AS MENTIONED IN THE ASSESSMENT ORDER. THE ASSESSEE H AS FURNISHED A SUBMISSION AND ALONG WITH THAT SUBMISSION ALSO FURNISHED AN ANOTHER NOTARIZED AGREEMENT. THE ASSESSING OFFICER HAS MENTIONED THAT THE SAID AGREEMENT WAS IN RESPECT OF SALE OF FLATS ON A STAMP PAPER DATED 9 TH APRIL, 2009. THE ASSESSING OF FICER HAS MENTIONED THAT IN THE SAID AGREEMENT THERE WAS A DISCUSSION OF SALE OF FOUR FLATS OF SECOND AND THIRD FLOOR OF THE BUILDING, SITUATED AT SIDDHARTHA NAGAR FOR A SUM OF ` .1.70 CRORES. THE ASSESSING OFFICER HAS MENTIONED THAT AGAINST THE SALE PRICE FIXED OF ` .1.70 CRORES THE ASSESSEE HAD RECEIVED THE FOLLOWING AMOUNTS: 1. CASH ` . 50 LAKHS 05/12/2008 DEPOSITED IN ASSESSEES A/C. 2. CHEQUE ` . 5.45 LAKHS 10/12/2008 3. CASH ` . 19.55 LAKHS 19/12/2008 4. CASH ` .18.00 LAKHS 18/02/2009 ---------------------- TOTAL : ` . 93.00 LAKHS. ---------------------- 4. AS PER THE ASSESSING OFFICER, THE PROPERTY WAS UNDER PEACEFUL POSSESSION OF THE ASSESSEE AND THE ASSESSEE WAS ENJOYING THE CONTROL OVER THE PROPERTY BUT UP TILL 31 ST MARCH, 2013, VIZ. UPTO THE DATE OF FINALIZATION OF THE TRANSFER AND REGISTRATION OF THE PROPERTY. THE OBJECTION OF THE ASSESSING OFFICER WAS THAT THE ASSESSEE HAD NOT PRODUCED ANY LEGAL DOCUMENTATION REGARDING THE OWNERSHIP OF THE PROPERTY 4 ITA NO. 119/NAG/2014 WHICH HAD BEEN AGREED UPON BY THE ASSESSEE. FEW MORE OPPORTUNITIES WERE GRANTED BY THE ASSESSING OFFICER TO THE ASSESSEE BUT NO SATISFACTORY EXPLANATION WA S GIVEN. THE ASSESSEE HAD SOUGHT ADJOURNMENT ON ONE OCCASION ON THE GROUND THAT HE WAS GOING TO UTTARAKHAND TO KNOW EXACTLY THE PROOF OF THE REAL SOURCE OF DEPOSIT IN THE BANK. THE ASSESSING OFFICER HAS AGAIN ISSUED NOTICES TO SHRI VIPIN KUMAR AGRAWAL BUT THE POSTAL AUTHORITIES HAVE RETURNED THE SAME WITH THE COMMENT THAT THE ADDRESS WAS WRONG. THE ASSESSEE HAS REPEATED HIS ARGUMENT AND TRIED TO EXPLAIN THE SOURCE OF DEPOSIT IN THE FOLLOWING MANNER : DEPOSIT WITHDRAWAL 1. CASH DEPOSIT 05/12/2008 ` . .50,00,000/ - BY CHEQUE 08/12/2008 ` . 25,00,000 / - . 2. CHEQUE 10/12/2008 ` .5,45,000/ - BY CHEQUE 08/12/2008 SURESH BOHRA. ` .24,00,000/ - . # SELF. 3. CASH DEPOSIT 10/12/2008 ` .19,55,000/ - CHEQUE TO 10/12/2008 ` .25,80,000/ - *M/S RAHUL REAL ESTATE 4. CASH DEPOSIT 18/0 2/2009 ` .18,00,000/ - BY CHEQUE 19/02/2009 ` .9,00,000/ - #SELF. BY CHEQUE 19/02/2009 ` .8,00,000/ - #SELF. --------------------- ------------ TOTAL ` .93,00,000/ - ` .91,80,000/ - -------------------- ------------------ *PROPRIETARY CONCERN OF THE ASSESSEE #CHEQUE TRANSFERRED TO ASSESSEES OTHER BANK A/C. 4.1 FINALLY THE ENTIRE AMOUNT OF ` .93 LAKHS WAS TAXED IN THE HANDS OF THE ASSESSEE. 5 ITA NO. 119/NAG/2014 5. BEING AGGRIEVED, THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY. BUT DUE TO NON ATTENDANCE BY THE ASSESSEE , ULTIMATELY THE SAID APPEAL WAS DECIDED EXPARTE AND THE ACTION OF THE ASSESSING OFFICER WAS CONFIRMED. 6. ACCORDING TO THE LEARNED CIT(APPEALS), THE ASSESSEE HAD FAILED TO SUB STANTIATE HIS CLAIM WITH SUPPORT OF EVIDENCES. THEREFORE, FINALLY THE ACTION OF THE ASSESSING OFFICER WAS CONFIRMED BY PASSING A CRYPTIC JUDGMENT, NOW IN QUESTION BEFORE US. 7. FROM THE SIDE OF THE APPELLANT, LEARNED A.R. MR. ABHAY AGRAWAL APPEARED AND AT THE OUTSET VEHEMENTLY PLEADED THAT THE REVENUE AUTHORITIES HAVE NOT GRANTED PROPER OPPORTUNITY TO THE ASSESSEE. HE HAS ALSO HIGHLIGHTED THE FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAD FALLEN SICK . D UE TO S O ME MENTAL PROBLEM , HE WAS NOT ABLE TO ATTEND THE PROCEEDINGS. LEARNED A.R. HAS ALSO PLEADED THAT EVEN BEFORE THE LEARNED CIT(APPEALS) THE ASSESSEE WAS NOT GRANTED SUFFICIENT AND REASONABLE OPPORTUNITY OF HEARING. LEARNED A.R. HAS EXPLAINED THAT THERE WERE SEVERAL EVIDENCES WHI CH WERE REQUIRED TO BE ADJUDICATED UPON BY THE ASSESSING OFFICER AS WELL AS BY LEARNED CIT(APPEALS). HOWEVER, IN THE ABSENCE OF PROPER OPPORTUNITY OF HEARING THE ASSESSEE WAS PREVENTED FROM NOT FURNISHING ALL THOSE EVIDENCES. 8. AT THIS JUNCTURE IT IS WORT H TO MENTION THAT THE ASSESSEE HAS FURNISHED A PAPER BOOK CONTAINING 93 PAGES AND AS PER INDEX THE FOLLOWING DOCUMENTS WERE ANNEXED : 6 ITA NO. 119/NAG/2014 SR. PARTICULARS PAGE. NO. NO. DOCUMENTS EVIDENCING THE MENTAL ILLNESS! SICKNESS OF THE ASSESSEE 1 . MED I CA L CERT I F I CATE DA T ED 2 7/ 05 / 20 11 I SS U ED B Y C I V I L SU R GEON , GENERA L 1 HOSP I TA L NAGPU R 2. MED I CA L CERT I F I CA T E DA T ED 1 2 / 04 / 20 1 2 I SS U ED B Y C IVIL S UR GEON , GENE R A L 2 HOSP I TAL NAQPUR 3. MED I CA L CERT I F I CATE DATED 7/1 2 / 20 1 2 I SS U ED B Y C IVIL SU R GEON , GENE R A L 3 HOSP I TA L NAQPUR 4. MED I CAL CERT I F I CATE DATED 17/1 2 / 20 1 2 I SSUED BY PSYCH I AT RI C REG I ONA L 4 - 5 MENTA L HOSP IT A L , NAGPUR ( A L ONG W I TH PA TI E N T DESC RI PT I ON ) 5. ART I CLE ON D I SEASE SCH I ZOPHREN I A ( B RI EF EXT R ACT ) 6 DOCUMENTS EVIDENCING THE ACTUAL TRANSACTION BETWEEN THE SUBJECT PARTIES 6. PETITION FILED BY MRS . SHANTA WILK I NSON BEFORE THE HON ' BLE C I VIL COURT , 7 - 9 CHAMPAVAT UTTARAKHAND ( TO RESTRAIN SALE OF D I SPUTED PROPERTY BY MRS . IRIS W I LK I NSON) DATED 2 7 /0BI200B 7. MUTUAL OUT OF COURT SETTLEMENT BETWEEN THE PART I ES (I . E REPRESENTED BY 10 - 11 ASSESSEE AND V I P I N AG R AWA L) DATED 16 /1 1 / 200B 8. COPY OF AD J OURNMENT LETTE R F IL ED BY M R S . SHA N TA W IL K I NSON BEFORE THE 12 HON ' BLE C I V IL COURT , CHA M PAVAT UTTARAKHA N D DA T ED 4 / 12 / 200B 9. INFORMAT I ON RECE I VED UNDE R RTI , ACT 2005 R EGA R D IN G D I SM I SSA L OF C I V IL SU I T 13 NO . 2 / 200B BETWEEN M R S . SHANTA W IL K I NSON V . M R S . IR I S W IL K I NSON ON 20 / 12 / 200B 1(] INFO R MAT I ON RECE I VED UNDE R RTI , ACT 2005 REGA R D I NG OWNERSH I P OF SUBJECT 14 - 16 LANDS I N THE NAME OF V I P I N AG R AWA L AND H I S ASSOC I ATES 11 COPY OF PUB LI C NOT I CE G I VE N BY M R S . I RI S W IL K IN SO N I N REG I ONA L 17 NEWSPAPER REGARD I NG R ECE I P T OF RS . B7 , 55 , OOO 12 SWORN AFF I DAV I T OF MRS . IRIS W I LK IN SON STAT I NG THE ACTUA L FACTS OF THE 18 - 20 TRANSACTION , DATED 1B/12/2013 13 MUTUAL AGREEMENT BETWEEN MRS . IRIS WI L K I NSON AND THE ASSESSEE FOR 21 - 25 FURTHER LEGAL COURSE OF ACTION , DATED 1B/12/2013 (ALONGWITH COPY OF PASSPORT OF MRS . IR I S WILK I NSON) 1~ LIST OF OTHER DOCUMENTS AVAILABLE W I TH THE ASSESSEE WH I CH CAN BE 26 PRODUCED BEFORE YOUR HONOURS , IF REQU I RED 7 ITA NO. 119/NAG/2014 DOCUMENTS EVIDENCING ASSESSEE'S EFFORTS TO COMMUNICATE WITH VIPIN AGRAWAL 15 COPY OF LETTER FILED W I TH THE LEARNED AO I NFORM I NG H I M THAT THE ASSESSEE 27 HAD GONE TO MEET VIP I N AGRAWAL I N UTTARAKHAND FOR ENQUIRY AND ASKING HIM TO ATTEND BEFORE THE LEARNED AO , NAGPUR 16 COPY OF LETTER DATED 02/02/2011 SENT BY THE ASSESSEE TO VIPIN AGRAWAL , 28 - 29 DELIVERED ON 14/02/2011 (ACKNOWLEDGEMENT OF POSTAL AUTHORITIES ENCLOSED) 17 COPY OF LEGAL NOTICE DATED 19/10/2011 SENT BY THE ASSESSEE TO VIPIN 30 - 33 AGRAWAL WHICH HE REFUSED TO ACCEPT (ACKNOWLEDGEMENT OF POSTAL AUTHOR I TIES ENCLOSED) 18 COPY OF LEGAL NOTICE DATED 01/01/2013 SENT BY THE ASSESSEE TO VIP I N 34 - 37 AGRAWAL DELIVERED TO THE PARTY (ACKNOWLEDGEMENT OF POSTAL AUTHORITIES ENCLOSED) AFFIDAVITS OF THE CONCERNED PARTIES BEFORE THE HON'BLE TRIBUNAL H COPY OF AFFIDAV I T OF THE ASSESSEE BEFORE HON'BLE TR I BUNAL , NAGPUR BENCH 38 - 47 2C COPY OF AFFIDAVIT OF THE ASSESSEE ' S WIFE BEFORE HON ' BLE ITAT , NAGPUR 48 - 51 21 COPY OF AFFIDAVIT OF THE ASSESSEE ' S B R OTHER BEFORE HON'BLE TRIBUNAL , 52 - 54 NAQPUR 2~ COPY OF AFFIDAVIT OF THE THREE WITNESSES BEFO R E HON ' BLE TR I BUNAL , NAGPUR 55 - 69 DOCUMENTS EVIDENCING ASSESSEE'S EFFORTS BEFORE HIGHER AUTHORITIES POST RECOVERY OF HIS MENTAL HEALTH 2~ PETIT I ON FILED BEFORE THE HON ' BLE PRESIDENT OF IND I A U N DE R THE LOKPAL 70 - 77 RULES 2013 - 14 24 LETTER FROM GOVERNMENT OF MAHARASHTRA DATED 05/06/2014 I N RESPONSE TO 78 LETTER WRITTEN BY THE ASSESSEE TO HON ' BLE PRESIDENT OF IND I A 25 LETTER FILED BEFORE LEARNED AO DATED 15/12/2011 REQUEST I NG TO PROV I DE 79 CERTIFIED COPY OF ASSESSMENT RECORDS UNDER RTI , ACT 2005 26 LETTER ISSUED BY LEARNED AO DATED 12/01/2012 IN RESPONSE TO THE LETTER 80 FILED BY THE ASSESSEE UNDER RTI , ACT 2005 , REJECTING ASSESSEE ' S REQUEST 27 LIST OF OTHER DOCUMENTS AVAILABLE WITH THE ASSESSEE WHICH CAN BE 81 PRODUCED BEFORE YOUR HONOU R S , IF REQUIRED DOCUMENTS EVIDENCING THE FLOW OF MONEY 28 COPY OF BANK ALC NO . 35644 OF THE ASSESSEE 82 - 83 29 COPY OF BANK ALC NO . 34450 OF MIS RAHAT REAL ESTATE 84 - 85 30 COPY OF BANK ALC NO . 491 013 OF THE ASSESSEE 86 - 87 COPY OF LLC PREMIUM PAID RECEIPTS (REFER ADDITIONAL GROUND OF APPEAL) 88 - 93 9. ON THE OTHER HAND, LEARNED D.R. HAS OBJECTED THE FILING OF THE ADDITIONAL EVIDENCES BECAUSE IN HIS OPINION THE ASSESSING OFFICER HAD GRANTED SUFFICIENT OPPORTUNITY OF HEARING BUT THE ASSESSEE HAS DELIBERATELY REMAINED ABSENT ON ONE PRETEXT OR THE OTHER. LEARNED D.R. HAS ALSO VEHEMENTLY OPPOSED THE PLEADING OF 8 ITA NO. 119/NAG/2014 LEARNED A.R. THAT THE ASSESSEE WAS SUFFERING FROM MENTAL ILLNESS DURING THE PERIOD WHEN THE ASSESSMENT PROCEEDINGS WERE IN PROGRESS. 10. IN A REJOINDER LEARNED A.R. HAS REITERATED THAT THE ASSESSEE REMAINED IN A MENTAL HOSPITAL AND HE HAS MEDICAL CERTIFICATE FROM THE DOCTOR. HE HAS INFORMED IN THE COURT THAT NOW THE ASSESSEE HAS RECOVERED AND THE DOCTOR HAS GIVEN A CERTIFICATE IN THIS REGARD. LEARNED A.R. HAS ALSO INFORMED IN THE COURT THAT THE ASSESSEE IS HIMSELF PRESENT. DURING THE COURSE OF HEARING THE BENCH THOUGHT IT PROPER TO ASK FEW QUESTIONS FROM THE APPELLANT ABOUT HIS HEALTH AS WELL AS THE FACTS RELATED TO THE CASE WHICH HAVE BEEN ANSWERED BY HIM DILIGENTLY . 11. IN THE LIGHT OF THE ABOVE ARGUMENTS AND THE FACTS OF THE CASE, A D ISCUSSION WAS CARRIED OUT IN THE COURT PERTAINING TO THE ADMISSION OF ADDITIONAL EVIDENC ES VIZ - A - VIZ THE PROVISIONS AS PRESCRIBED UNDER RULE 46A OF I.T. RULES. THE BENCH HAS EXAMINED THE CONTENTS OF THE PAPER BOOK SUCH AS MEDICAL CERTIFICATE OF CIVIL SURGE ON OF GENERAL HOSPITAL, NAGPUR AND OTHER RELATED MEDICAL DOCUMENTS WHICH HAVE INDICATED THAT THE ASSESSEE WAS SUFFERING FROM SCHIZOPHRENIA. WE HAVE ALSO MADE IT CLEAR THAT AS FAR AS THE INCOME - TAX PROCEEDINGS ARE CONCERNED THIS BENCH CANNOT GIVE RELIEF MER ELY ON THE HUMANITARIAN GROUND OF MENTAL SICKNESS OF AN ASSESSEE. RATHER THE ISSUE RAISED AS PER THE GROUNDS CAN ONLY BE DECIDED UNDER THE PROVISIONS OF I.T. ACT. 12. THEREAFTER WE HAVE EXAMINED THE EVIDENCES WHICH WERE RELATED TO THE TRANSACTION IN QUES TION. THE EVIDENCES WERE IN THE NATURE OF A PETITION FILED BY ONE MRS. SHANTA WILKINSON, AN EVIDENCE OF OUT OF COURT SETTLEMENT. SOME INFORMATION COLLECTED UNDER R.T.I. ETC. OUR ATTENTIO N HAS BEEN DRAWN ON CERTAIN CORRESPONDENCE THROUGH WHICH THE ASSESSEE HAD INFORMED THE ASSESSING OFFICER T HAT HE HAD GONE TO MEET VIPIN A GRAWAL, UTTRAKHAND AND ASKING TO ATTEND THE PROCEEDINGS BEFORE THE 9 ITA NO. 119/NAG/2014 ASSESSING OFFICER. THERE WAS ALSO A LEGAL NOTICE WHICH WAS SENT BY THE ASSESSEE TO SHRI VIPIN AGRAWAL WHICH WAS REFUSED B Y HIM. IN SUPPORT OF THE ABOVE CONTENTIONS THE ASSESSEE HAS FURNISHED AN AFFIDAVIT. THERE WERE FEW LETTERS WHICH WERE WRITTEN TO CERTAIN GOVERNMENT AUTHORITIES ALLEGING THEREIN THAT THE ASSESSEE HAD PROVIDED MOBILE NO. AND ADDRESS OF SHRI VIPIN AGRAWAL BUT THE REVENUE DEPARTMENT HAS NOT TAKEN ANY ACTION AGAINST MR. AGRAWA L. THROUGH ALL THESE EVIDENCES IT APPEARS THAT THE ASSESSEE WAS HAVING SOME RELATIONSHIP WITH ONE SHRI VIPIN AGRAWAL AND, THEREFORE, A BANK ACCOUNT WITH AXIS BANK WAS O PENED. IN THAT ACCOU NT THE IMPUGNED AMOUNTS WERE DEPOSITED BUT THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF DEPOSITS AND PLEADED BEFORE THE TAX AUTHORITIES THAT THE SOURCE OF DEPOSIT COULD BE EXPLAINED BY VIPIN AGRAWAL. ALTHOUGH HE HAS MENTIONED TO THE ASSESSING OFFICER ON THE FIRST HEARING THAT HE WAS IN A WAY MERELY A NAME LENDER AND IN THE HOPE OF RECEIVING 1% COMMISSION ON THE TRANSACTION ; THE BANK ACCOUNT WAS OPERATED . B UT THE ASSESSING OFFICER HA D NOT DIRECTLY ISSUED NOTICE TO VIPIN AGRAWAL AND THE ONUS WAS SHIFTED ON THE ASSESSEE TO PRODUCE MR. VIPIN AGRAWAL. NOW BEFORE US IT HAS ALSO BEEN EXPLAINED THAT THERE WAS A PROPERTY SITUATED AT UTTARAKHAND WHICH WAS UNDER DISPUTE. THE PROPERTY WAS IN THE JOINT OWNERSHIP OF MRS. IRIS WILKINSON AND MRS. SHANTA WILKINSON. THER E WAS A SETTLEMENT BETWEEN THE SAID TWO LADIES AND MR S . IR I S WILKINSON HAD RELINQUISHED HER RIGHT IN THE SAID PROPERTY IN FAVOUR OF MRS. SHANTA WILKINSON. A PART OF THE SAID PROPERTY WAS PURCHASED BY MR. VIPIN AGRAWAL. TO MAKE THE PAYMENT THE ASSESSEES NAME WAS USED BY OPENING A BANK ACCOUNT IN HIS NAME AND AN AM OUNT OF ` .87,5,000/ - WAS DEPOSITED IN THE SAID BANK ACCOUNT. IN TURN, THE ASSESSEE HAD WITHDRAWN THE SAID AMOUNT WHICH WAS CLAIMED TO HAVE BEEN PAID BACK TO VIPIN AGRAWAL TO HANDOVER TO MRS. WILKINSON. ALL THESE FACTS AND EVIDENCES WERE PLACED FOR THE FI RST TIME BEFORE US. THE ASSESSEE HAS PLEADED THAT ALL THESE EVIDENCES WERE NECESSARY TO GO TO THE RO OT OF THE MATTER AND ESSENTIAL TO ARRIVE AT THE RIGHT CONCLUSION. IT HAS ALSO BEEN 10 ITA NO. 119/NAG/2014 PLEADED THAT IN THE INTEREST OF JUSTICE, THESE EVIDENCES SHOULD BE ADMITT ED TO ADJUDICATE AS PER LAW. IN RESPECT OF THE PRODUCTION OF ADDITIONAL EVIDENCES AND THE CONDITIONS UNDER WHICH THE ADDITIONAL EVIDENCES CAN BE ADMITTED AT THE APPELLATE STAGE, FEW CASE LAWS HAVE BEEN CITED, NAMELY; CIT V/S. KUM. SATYA SETIA (143 ITR 48 6) MP HC). RAJMOTI INDUSWTRIES V/S. ITO (1995) (52 ITD 286). SMT. PRABHAVATI S. SHAH V/S. CIT 231 ITR 1 (BOM.). CIT V/S. GANI BHAI WAHAB BHAI (1998) 232 ITR 900 (MP). 13. IN THE FITNESS OF CIRCUMSTANCES AND CONSIDERING THE FACT THAT THE FIRST APPELLATE AUTHORITY HAS ALSO DECIDED THE APPEAL EX - PARTE, WE ARE OF THE CONSIDERED OPINION THAT THE MATTER SHOULD BE RE M ITTED BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRE CT ION THAT THE EVIDENCES AS LISTED ABOVE SHOULD BE INVESTIGATED AND THEREUPON DECIDE THE ISSUE AS PER LAW. IF THE ASSESSING OFFICER IS OF THE OPINION THAT THE ASSESSEE HAS SIMPLY ACTED AS NAME LENDER THEN WE DIRECT TO TAKE PROPER LEGAL ACTION AGAINST THE PERSON ON WHOSE BEHALF THE ASSESSEE HAS ACTED UPON. WE HAVE ALSO DULY CONSIDERED THE ILLNESS OF THIS ASSESSEE. BUT IN THAT SITUATION AS WELL SECTION 160 OF I.T. A CT PRESCRIBES THAT THE PROCEEDINGS AGAINST REPRESENTATIVE ASSESSEE IN RESPECT OF INCOME OF A LUNATIC ( SECTION 160(1)(II) OF I.T. ACT) CAN BE INITIATED. RESULTANTLY WE HEREBY HOLD THAT THE ISSUE RAISED AS PER CONCISE GROUNDS OF APPEAL SHOULD BE DECIDED DENOVO AFRESH BY THE ASSESSING OFFICER. HENC E THESE GROUNDS MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE BECAUSE WE HAVE RESTORED THE MATTER BACK TO THE ASSESSING OFFICER. 11 ITA NO. 119/NAG/2014 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF AUGUST, 2015. SD/ - SD/ - ( SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER. JUDICIAL MEMBER NAGPUR, DATED: 28 TH AUGUST, 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE .