Dr, Hamid Daud Sayyad, Pune V. Income-tax Officer,

ITA 135/PUN/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1500 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 30-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Principle of natural justice; Additional evidence

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO . 135 /PN/201 5 / ASSESSME NT YEAR : 20 0 9 - 1 0 DR. HAMID DAUD SAYYAD, S.NO.247/3, LOHGAON ROAD, KALWAD, VASTI, PUNE 4110 32 . / APPELLANT PAN: A QEPS3925L VS. THE INCOME TAX OFFICER , WARD 5(1), PUNE . / RESPONDENT / APPELL ANT BY : SHRI KISHORE PHADKE / APPELL ANT BY : SHRI KISHORE PHADKE / RESPONDENT BY : SHRI ANIL KUMAR CHAWARE / DATE OF HEARING : 2 6 . 0 7 .201 6 / DATE OF PRONOUNCEMENT: 29 . 0 7 .201 6 / ORDER PER SUSHMA CHOWLA, J M : THIS APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - II I , PUNE , DATED 07 . 1 0 .20 1 4 RELATING TO ASSESSMENT YEAR 20 0 9 - 1 0 AGAINST ORDER PASSED UNDER SECTION S 14 3(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSESSEE HAS FILED THE MODIFIED GROUNDS OF APP EAL , WHICH READ AS UNDER : - ITA NO. 135 /PN/20 1 5 DR. HAMIT DAUD SAYYAD 2 1. THE LEARNED CIT(A) - III, PUNE ERRED IN LAW AND ON FACTS IN NOT ADMITTING THE ADDITIONAL EVIDENCES SUBMITTED BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS CONSIDERING RULE 46A OF THE I - T RULES. LEARNED CIT(A) - III, PUNE OUG HT TO HAVE APPRECIATED THE SWORN AFFIDAVIT OF THE APPELLANT AND HANDICAPS SUFFERED BY APPELLANT IN MAKING ELABORATE SUBMISSIONS DURING THE COURSE OF HEARING BEFORE LEARNED AO. 2. THE LEARNED CIT(A) - III, PUNE ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDI TION MADE BY THE LEARNED AO U/S 69A OF THE ITA, 1961 AMOUNTING TO RS.18,96,050/ - . THE APPELLANT SUBMITS THAT APPELLANT HAD SOURCES OF CASH INFLOW EXPLAINING CASH DEPOSIT IN ICICI BANK. 3. THE LEARNED CIT(A) - III, PUNE ERRED IN NOT APPRECIATING AVAILABILIT Y OF CASH SOURCES FROM APPELLANTS MEDICAL PRACTICE AND ALSO WITHDRAWALS FROM ICICI BANK. 3. THE PRELIMINARY ISSUE RAISED IN THE PRESENT APPEAL BY WAY OF MODIFIED GROUND OF APPEAL NO.1 IS THAT THE CIT(A) HAS ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS. 4. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE WAS PRACTICING AS DOCTOR AND HAD FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.2,44,870/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCR UTINY AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE . THE ITP I.E. LEGAL REPRESENTATIVE OF THE ASSESSEE ATTENDED THE PROCEEDINGS , A S PER THE ASSESSING OFFICER , ONLY FOR ONE TIME I.E. ON 09.12.2011 WITHOUT ANY AUTHORITY LETTER. HE W AS ASKED TO FURNISH T HE SAME AND OTHER DOCUMENTS VIDE ORDER SHEET DATED 09.12.2011. HOWEVER, HE FAILED TO SUBMIT THE AUTHORITY LETTER ALSO. ON 19.12.2011, THE ASSESSEE HIMSELF ATTENDED THE PROCEEDINGS AND HE WAS ASKED TO FURNISH THE SOURCE OF DEPOSIT OF RS. 18,96,050/ - IN CASH IN ICICI BANK LTD., BUND GARDEN BRANCH, PUNE. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS FAILED TO FURNISH COMPLETE INFORMATION IN THIS REGARD AND CONSEQUENTLY, ADDITION OF RS.18,96,050/ - WAS MADE UNDER SECTION 69A OF THE ACT. THE ASSESSMENT ORDER WAS PASSED ON 27.12.2011. ITA NO. 135 /PN/20 1 5 DR. HAMIT DAUD SAYYAD 3 5. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) AND DURING THE COURSE OF APPELLATE PROCEEDINGS FURNISHED CERTAIN ADDITIONAL EVIDENCES I.E. DOCUMENTS PERTAINING TO GIFTS RECEIVED FROM FAMILY MEMBERS AND THE LOAN RECEIVED FROM FRIENDS. THE ASSESSEE ALSO FILED AN AFFIDAVIT DATED 07.02.2013 BEFORE THE CIT(A) EXPLAINING THE CIRCUMSTANCES WHICH PREVENTED HIM FROM FILING THE REQUISITE DETAILS BEFORE THE ASSESSING OFFICER. THE CLAIM OF THE ASSESSEE WAS THA T HE WAS DEPENDENT ON THE SAID REPRESENTATIVE WHO, HE THOUGHT TO BE A CHARTERED ACCOUNTANT. HOWEVER, HE RECEIVED NOTICE FOR LEVYING PENALTY FOR NON - ATTENDANCE AND THEN, HE STARTED PERSONALLY ATTENDING THE HEARING. HOWEVER, BECAUSE OF PAUCITY OF TIME AS T HE ASSESSMENT WAS TO BE COMPLETED BEFORE 31.12.2011, HE COULD NOT FURNISH THE COMPLETE INFORMATION. HOWEVER, BEFORE THE CIT(A), HE FURNISHED ADDITIONAL EVIDENCES AND MADE A REQUEST THAT THE SAID DOCUMENTS BE ACCEPTED, WHICH IN ORDER WOULD EXPLAIN THE SOUR CE OF CASH DEPOSITS IN THE BANK ACCOUNT. THE CIT(A) HOWEVER, REJECTED THE CLAIM OF ASSESSEE SINCE THE ASSESSEE HAD APPEARED BEFORE THE ASSESSING OFFICER AFTER ISSUE OF PENALTY ORDER UNDER SECTION 271(1)(B) OF THE ACT . AS PER THE CIT(A), THIS WAS A DELIBE RATE DEFAULT OF ASSESSEE IN NOT APPEARING BEFORE THE ASSESSING OFFICER. THE CIT(A) THUS, REJECTED THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. THE CIT(A) ON THE ONE HAND H E LD THAT THE DOCUMENTS ARE NOT ADMITTED AS EVIDENCE BUT ON THE HAND, COMMENT ED ON THE DOCUMENTS. HOWEVER, THE ADDITION MADE BY THE ASSESSING OFFICER IS UPHELD. 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE B EFORE THE TRIBUNAL HAS FURNISHED THE SAID ADDITIONAL EVIDENCES AT PAGES 20 TO 47 OF THE ITA NO. 135 /PN/20 1 5 DR. HAMIT DAUD SAYYAD 4 PAPER BOOK EXPLAINING THE CAPACITY OF PERSONS , WHO HAD ADVANCED THE LOAN TO THE ASSESSEE AND GIFTS FROM THE FAMILY MEMBERS. THE LEARNED AUTHORIZED REPRESENTATIVE FOR T HE ASSESSEE FAIRLY POINTED OUT THAT THE ABOVE SAID DOCUMENTS NEEDS TO BE CONSIDERED IN ENTIRETY BEFORE THE CASE IS DECIDED IN THE PRESENT CASE. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON THE ORDER OF C IT(A). 9. ON PERUSAL OF RECORD AND THE PAPER BOOK FILED BY THE ASSESSEE, THE ISSUE WHICH ARISES FOR ADJUDICATION IN THE PRESENT APPEAL IS THE SOURCE OF CASH DEPOSIT OF RS. 18,96,050/ - IN ASSESSEESS BANK ACCOUNT WITH ICICI BANK. THE CLAIM OF THE ASSESSEE WAS THAT BECAUSE OF THE CONDUCT OF HIS REPRESENTATIVE, CERTAIN DOCUMENTS COULD NOT BE PLACED BEFORE THE ASSESSING OFFICER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHICH WOULD EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE SAID BANK ACCOUNT. HOWEVER, BEFO RE THE CIT(A), CERTAIN ADDITIONAL EVIDENCES WERE FILED BY THE ASSESSEE, WHICH IN THE FIRST INSTANCE, WERE NOT ADMITTED BY THE CIT(A). FURTHER, THE CIT(A) ALSO COMMENTS ON THE NATURE OF DOCUMENTS FILED AND REJECTS THE CLAIM OF ASSESSEE. IN THE ENTIRETY OF THE ABO VE SAID FACTS AND CIRCUMSTANCES OF THE CASE AND KEEPING IN MIND THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962 AND FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE, THERE IS MERIT IN THE CLAIM OF ASSESSEE THAT HE WAS PREVENTED BY SUFFICIENT CA USE FROM NOT FILING THE ABOVE SAID DOCUMENTS BEFORE THE ASSESSING OFFICER. THE LIST OF DOCUMENTS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL EXPLAINING THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT READS AS UNDER: - ITA NO. 135 /PN/20 1 5 DR. HAMIT DAUD SAYYAD 5 SR. NO. PARTICULARS 2 DOCUMENTS PERTA INING TO MR. SHERKHAN J. PATHAN (FATHER - IN - LAW, GIFT RECEIVED RS.3,00,000/ - ) 2.1 CONFIRMATION REGARDING GIFT OF RS.3,00,000/ - 2.2 FORM 16 FOR FY 2007 - 08 2.3 SBI PASS BOOK 2.4 7/12 EXTRACT OF AGRICULTURAL LAND AT SHRIRAMPUR 2.5 COPY OF PAN AND DRIVIN G LICENSE 3 DOCUMENTS PERTAINING TO MR. ABEEDALI D. SAYYAD (BROTHER, GIFT RECEIVED RS.1,00,000/ - ) 3.1 CONFIRMATION REGARDING GIFT OF RS.1,00,000/ - 3.2 COPY OF PAN 4 DOCUMENTS PERTAINING TO MR. AMJAD GANI KHAN (FRIEND, LOAN RECEIVED RS.1,00,000/ - ) 4.1 CONFIRMATION REGARDING LOAN OF RS.1,00,000/ - 4.2 ACKNOWLEDGEMENT OF ROI AND COMPUTATION OF INCOME FOR AY 2009 - 10 4.3 COPY OF PAN 5 DOCUMENTS PERTAINING TO CAP. YUNUSKHAN S. PATHAN (BROTHER - IN - LAW, GIFT RECEIVED RS.1,00,000/ - ) 5.1 CONFIRMATION REG ARDING GIFT OF RS.1,00,000/ - 5.2 ACKNOWLEDGEMENT OF ROI FOR AY 2009 - 10 5.3 SALARY SLIP 6 DOCUMENTS PERTAINING TO MR. PRAMOD KHAMKAR (FRIEND, LOAN RECEIVED RS.1,00,000/ - ) 6.1 CONFIRMATION REGARDING LOAN OF RS.1,00,000/ - 6.2 ACKNOWLEDGEMENT OF ROI FOR AY 2009 - 10 6.3 COPY OF PAN 7 DOCUMENTS PERTAINING TO DR. ASIFA SAYYAD (WIFE, LOAN RECEIVED RS.1,45,000/ - ) RECEIVED RS.1,45,000/ - ) 7.1 CONFIRMATION REGARDING LOAN OF RS.1,45,000/ - 7.2 ACKNOWLEDGEMENT OF ROI AND COMPUTATION OF INCOME FOR AY 2009 - 10 7.3 FINANCIALS FOR THE YE AR ENDED 31/03/2009 8 DOCUMENTS PERTAINING TO LATE MR. TAJMOHAMMAD SAYYED (BROTHER, GIFT RECEIVED RS.1,52,600/ - ) 8.1 ACKNOWLEDGEMENT OF ROI AND COMPUTATION OF INCOME FOR AY 2009 - 10 8.2 COPY OF PAN 8.3 DEATH CERTIFICATE 10. ONCE THE ASSESSEE HAS COL LECTED THE INFORMATION VIS - - VIS ITS SOURCE OF DEPOSIT IN THE BANK ACCOUNT, IT IS INCUMBENT UPON THE AUTHORITIES BELOW TO CONSIDER THE SAME IN ENTIRETY. IN VIEW OF THE FACTS OF THE CASE, WHERE THE ASSESSEE WAS NOT PROPERLY REPRESENTED BY LEGAL REPRESENTAT IVE AND THE FACT OF NON REPRESENTATION HAVING BEEN CONFIRMED BY THE ASSESSEE BY WAY OF AFFIDAVIT DATED 07.02.2013, WHICH WAS FILED BEFORE THE CIT(A) . T HE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IS ADMITTED AND I DEEM IT FIT TO RESTORE THE ISSUE BACK TO THE FILE OF CIT(A) AND THE CIT(A) IS DIRECTED TO CONSIDER THE SAME AND AFTER ITA NO. 135 /PN/20 1 5 DR. HAMIT DAUD SAYYAD 6 VERIFICATION TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW. REASONABLE OPPORTUNITY OF HEARING SHALL BE PROVIDED TO THE ASSESSEE IN THE MATTER. THE GROUNDS OF APPEAL RAISED BY THE A SSESSEE ARE THUS, ALLOWED FOR STATISTICAL PURPOSES. 1 1 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THIS 29 TH DAY OF JU LY , 201 6 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEM BER / PUNE ; DATED : 29 TH JU LY , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - II I , PUNE ; 4. / THE CIT - I II , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE