Gajanan Sakharam Chavan, Latur V. Income-tax Officer, Latur

ITA 1368/PUN/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1009 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 30-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Unexplained investment; Additional evidence
• Section: 201; 13; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 1368 /PUN/201 7 / ASSESSMENT YEAR : 20 1 0 - 11 SHRI GAJANAN SAKHARAM CHAVAN, PRAGATI BHAVAN, FIRST LANE, AMBEJOGAI ROAD, LATUR 413531 PAN : AESPC5848E ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 3(3), LATUR / RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 20 - 11 - 2019 / DATE OF PRONOUNCEMENT : 17 - 1 2 - 2019 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 03 - 05 - 2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2, AURANGABAD [CIT(A)] FOR ASSESSMENT YEAR 201 0 - 11. 2. THIS APPEAL WAS FILED WITH A DELAY OF 321 DAYS. THE ASSESSEE FILED A NOTARIZED AFFIDAVIT DATED 27 - 05 - 2017 EXPLAINING THE REASONS FOR DELAY ALONG WITH DOCTOR CERTIFICATE DATED 23 - 05 - 2017 SUPPORTING THE REASONS EXPLAINED BY THE ASSESSEE. AFTER H EARING BOTH THE PARTIES , WE FIND THAT THE REASONS 2 ITA NO.1368/PUN/2017, A.Y. 2010 - 11 STATED BY THE ASSESSEE ARE BONAFIDE WHICH REALLY PREVENT ED THE ASSESSEE TO FILE THE APPEAL IN TIME. THEREFORE, THE DELAY OF 321 DAYS ARE CONDONED. 3. THE ONLY ISSUE TO BE DECIDED IS AS TO WHETHER THE CIT(A) JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMEN T U/S. 69 OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND CASH DEPOSITS MADE BY THE ASSESSEE I N HIS SAVING BANK ACCOUNT OF STATE BANK OF INDIA. TO VERIFY THE SOURCE OF SUCH CASH DEPOSITS, THE ASSESSING OFFICER ASKED DETAILS FROM ASSESSEE. THE ASSESSEE FILED DETAILS OF WHICH ARE REFLECTING IN THE ASSESSMENT ORDER AT PAGE NO. 2. ACCORDING TO ASSES SING OFFICER THE DETAILS FILED BY THE ASSESSEE WERE NOT RELEVANT AND REQUESTED TO FILE FURTHER DOCUMENTARY EVIDENCE. THE ASSESSING OFFICER EXAMINED THE DETAILS AS FILED BY THE ASSESSEE AND HELD CASH DEPOSITS TO AN EXTENT OF RS.6,50,000/ - AS EXPLAINED AND ADDED THE REMAINING AMOUNT OF RS.17,70,000/ - (RS.24,20,000/ - - RS.6,50,000/ - ) U/S. 69 OF THE ACT. 5. AS AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) ALONG WITH DETAILS OF EXPLANATION. ACCORDING TO CIT(A) T HOSE DETAILS WERE FILED FOR FIRST TIME AND TREATING THE SAME AS ADDITIONAL EVIDENCE SOUGHT REMAND REPORT FROM ASSESSING OFFICER. THE ASSESSING OFFICER SUBMITTED A REPLY ON 13 - 01 - 2015 STATING THAT EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE IN VIEW OF SP ECIFIC PROVISIONS OF RULE 46A WHICH PROVIDES ASSESSEE SHALL NOT BE ENTITLED TO PRODUCE ADDITIONAL EVIDENCES BEFORE APPELLATE AUTHORITY EXCEPT IN THE CIRCUMSTANCES PROVIDED 3 ITA NO.1368/PUN/2017, A.Y. 2010 - 11 IN RULE 46A(1) AND HELD THE ASSESSEE FAILED TO FULFILL EXCEPTIONS THEREIN AND REJECT ED ADDITIONAL EVIDENCES AS NOT ACCEPTABLE. WE FIND , ADMITTEDLY , THE ASSESSING OFFICER DID NOT FILE REMAND REPORT IN TERMS OF CLAUSE (A) AND (B) OF SUB - RULE (3) OF RULE 46A OF INCOME TAX RULES, 1962. THE CIT(A) CONFIRMED THE VIEW OF ASSESSING OFFICER. 6. COMING TO THE MERITS OF THE CASE AS DISCUSSED ABOVE, THE ASSESSING OFFICER FOUND CASH DEPOSITS TO AN EXTENT OF RS.24,20,000/ - AND THE FACT REMAINS ADMITTED EMANATING FROM THE ASSESSMENT ORDER AS WELL AS IMPUGNED ORDER, THE ASSESSEE FILED DETAILS BEFORE THE ASSESSING OFFICER. THE CONTENTION OF SHRI SUNIL GANOO, THE LD. AR IS THAT ALL THE DETAILS WERE FILED BEFORE THE ASSESSING OFFICER AND IT WAS EXPLAINED IN A SUMMARY MANNER AND COULD NOT BE PROPERLY EXPLAINED DUE TO LACK OF PROFESSIONAL HELP. WE FIND , OUT OF RS.24,20,000/ - CASH DEPOSITS THE ASSESSING OFFICER HELD RS.6,50,000/ - AS EXPLAINED AND ADDED REMAINING AMOUNT OF RS.17,70,000/ - AS UNEXPLAINED. THEREFORE, WE FIND FORCE IN THE ARGUMENTS OF SHRI SUNIL GANOO, THE LD. AR THAT THE DETAILS HAVE BEEN FIL ED IN THE ASSESSMENT PROCEEDINGS AND THE SAME WERE NOT EXPLAINED PROPERLY DUE TO LACK OF PROFESSIONAL HELP. IT CLEARLY SHOWS THERE WAS NO OPPORTUNITY FOR THE ASSESSEE TO GIVE EXPLANATION REGARDING THE IMPUGNED AMOUNT. 7. IT IS NEEDLESS TO MENTION THE PROVISION U/S. 69 OF THE ACT EXPLAINS A DUTY CAST UPON THE ASSESSING OFFICER TO SEEK EXPLANATION FROM THE ASSESSEE AND HE SHALL PROCEED TO MAKE ADDITION UNDER UNEXPLAINED INVESTMENT IF HE FINDS THE ASSESSEE OFFERS NO EXPLANATION OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATISFACTORY. IT IS CLEAR THAT THE ASSESSEE H AS TO OFFER AN EXPLANATION IF THE SAME IS NOT SATISFACTORY IN THE OPINION OF ASSESSING OFFICER THEN ONLY ASSESSING OFFICER SHALL PROCEED TO MA K E ADDITION U/S. 69 OF THE ACT. IN THE PRESE NT CASE, THE FACT REMAINS ADMITTED THE DETAILS WERE 4 ITA NO.1368/PUN/2017, A.Y. 2010 - 11 FILED IN THE ASSESSMENT PROCEEDINGS AND ASSESSING OFFICER PARTIALLY HELD CASH DEPOSITS EXPLAINED AND REGARDING THE IMPUGNED AMOUNT THE ASSESSEE FILED ADDITIONAL EVIDENCES BEFORE THE FIRST APPELLATE AUTHOR ITY WHICH WERE NOT CONSIDERED IN RIGHT PERSPECTIVE IN TERMS OF SUB - RULE (3) OF RULE 46A OF THE INCOME TAX RULES, 1962 AND THEREFORE, IN VIEW OF SAME WE REMAND THE MATTER TO THE FILE OF ASSESSING OFFICER FOR ITS FRESH CONSIDERATION TO EXAMINE THE EVIDENCES INVOLVING THE IMPUGNED AMOUNT TO AN EXTENT OF RS.17,70,000/ - . THE ASSESSEE IS LIBERTY TO FILE EVIDENCES IF ANY BEFORE THE ASSESSING OFFICER. THUS, GROUND NOS. 1 TO 3 ARE ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH DECEMBER, 2019. SD/ - SD/ - (ANIL CHATURVEDI) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBE R / PUNE; / DATED : 17 TH DECEMBER, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 2, AURANGABAD 4. THE PR. COMMISSIONER OF INCOME TAX - 2, AURANGABAD 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. // // TRU E COPY // / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE