The ITO, Ward-9(4), Ahmedabad V. Shri Amrishbhai H.Patel, Ahmedabad

ITA 1373/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6726 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 29-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH (BEFORE S/SHRI T.K. SHARMA, JUIDICIAL MEMBER AND A.K. GARODIA, ACCOUNTANT MEMBER) ITA NO.1373/AHD/2010 [ASSTT. YEAR : 2006-2007] ITO, WARD-9(4) AHMEDABAD. VS. AMRISHBHAI H. PATEL 58, SHANKER SOCIETY-1 NARANPURA AHMEDABAD 380 013. PAN : ALCPP 9045 P (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI R.K. DHANESTA O R D E R PER A.K. GARODIA, ACCOUNTANT MEMBER: THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER OF THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS)-XV, AHMEDABAD DATED 25.2.2010 FOR ASS ESSMENT YEAR 2006-2007. 2. THE SOLE EFFECTIVE GROUND RAISED BY THE REVENUE IS AS UNDER: 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION OF RS.988185/- MADE BY THE ASSESSING OFFIC ER ON ACCOUNT OF CASH DEPOSITED IN BANK OUT OF UNDISCLOSED SOURCE S. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF NOTICE HAVING BEEN SERVED ON THE ASSESSEE AS PER ACKNOWLEDGEMENT AVAILABLE ON RECORD AND HENCE WE PROCEED TO DECIDE THE APPEAL EX PARTE QUA THE ASSESSEE. 4. IT IS SUBMITTED BY THE LEARNED DR FOR THE REVENU E THAT WHEN THE LEARNED CIT(A) HAS ADMITTED ADDITIONAL EVIDENCE, HE HAS NOT CALLED UPON THE REMAND REPORT FROM THE AO AND THEREFORE THE IMP UGNED ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT PROPER. ITA NO.1373/AHD/2010 -2- 5. WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR OF THE REVENUE AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD A S WELL AS THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ASSESSING OFFICER ASKED THE ASSESSEE IN THE COURSE OF THE ASSESSMENT PROCEEDING S TO EXPLAIN THE SOURCE OF THE DEPOSITS AMOUNTING TO RS.14,00,900/- IN CENT RAL BANK OF INDIA, AS PER THE AIR INFORMATION RECEIVED FROM THE BANK. IN REPLY IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFI CER THAT HE HAD NEVER DEPOSITED THE AMOUNT OF RS.14,00,900/- IN CASH IN H IS SAVING BANK ACCOUNT NO.44 WITH CENTRAL BANK OF INDIA. HE SUBM ITTED THE COPY OF A BANK CERTIFICATE BEFORE THE ASSESSING OFFICER. TH E ASSESSING OFFICER HAD NOTED THAT AS PER THE BANK STATEMENT OF THE ASSESSE E OBTAINED FROM BANK, THE FACT OF DEPOSIT OF RS.14 LAKHS IS CONFIRMED BUT THE DEPOSIT TO THE EXTENT OF RS.4,12,715/- ONLY HAS BEEN EXPLAINED BY THE ASSESSEE. HENCE, THE AO MADE ADDITION OF THE BALANCE AMOUNT OF RS.9 ,88,185/- (RS.10,00,900 MINUS RS.4,12,715/-). HENCE, IT IS S EEN THAT APART FROM DEPOSITS OF RS.4,12,715/-, THE ASSESSEE HAS NOT EXP LAINED BEFORE THE ASSESSING OFFICER SOURCE OF THE BALANCE AMOUNT OF T HE DEPOSIT. BEFORE THE LEARNED CIT(A), A NEW STAND HAS BEEN TAKEN BY T HE ASSESSEE THAT TWO DEPOSITS DATED 1-2-2006 THROUGH CHEQUES OF RS.6,00, 000/- AND RS.4,00,000/- HAVE NOT BEEN CONSIDERED BY THE ASSES SING OFFICER. IT WAS EXPLAINED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THAT THESE DEPOSITS WERE RECEIPTS FROM THE ASSESSEES UN CLES BANK ACCOUNT AND THE BANK ENTRY MENTIONED THE NAME OF THE PERSON FRO M WHOM RECEIVED I.E. SHRI RAMESH M. PATEL (NRE ACCOUNT). THIS CONTENTIO N WAS NEVER RAISED BEFORE THE ASSESSING OFFICER. HENCE, IT WAS A NEW EVIDENCE BEFORE THE LEARNED CIT(A) AND THEREFORE, THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) WAS REQUIRED TO OBTAIN REMAND REPORT FROM THE AO WHICH HAS ITA NO.1373/AHD/2010 -3- NOT BEEN DONE BY HIM AND HENCE, WE FEEL THAT THIS M ATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE SE CONTENTIONS OF THE ASSESSEE WHICH WERE RAISED BEFORE THE LEARNED CIT(A ) FOR THE FIRST TIME. HENCE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FO R FRESH CONSIDERATION. THE ASSESSEE SHOULD FURNISH EVIDENCES BEFORE THE AS SESSING OFFICER REGARDING THE SOURCE OF TWO DEPOSITS IN HIS BANK AC COUNT ON 1-2-2006 THROUGH CHEQUES OF RS.6,00,000/- AND RS.4,00,000/- STATED TO HAVE BEEN RECEIVED FROM HIS UNCLES BANK ACCOUNT AND AFTER CO NSIDERING THE SAME, THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER A S PER LAW. NEEDLESS TO MENTION, REASONABLE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE BE PROVIDED. 6. IN RESULT, ASSESSEES APPEAL IS DEEMED TO BE ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 29 TH APRIL, 2011 SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (A. K. GARODIA) ACCOUNTANT MEMBER PLACE : AHMEDABAD DATE : 29-04-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD