Aman Mazherali Saiyed, Ahmedabad V. The ITO, Ward-5(1)(1), Ahmedabad

ITA 1375/AHD/2019

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 0016 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 28-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RIZWANA Y. MADHUPURWALA
• Keywords: Salary income; TDS
• Section: 147; 148; 144; 142(1)

Judgement Text

ITA No.1375/Ahd/2019 A.Y. 2011-12 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH, AHMEDABAD BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA No.1375/Ahd/2019 Assessment Year: 2011-12 Aman Mazherali Saiyed, vs. The Income Tax Officer, 15-16, Makhdum Colony, Ward – 5(1)(1), Ahmedabad. B/h. Shahalam Roza, Shahalam, Ahmedabad. [PAN – AYHPS 8655E] (Appellant) (Respondent) Appellant by : Rizwana Y. Madhupurwala, CA Respondent by : Shri Atul Pandey, Sr. DR Date of hearing : 24.06.2022 Date of pronouncement : 06.07.2022 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER : This appeal is filed by assessee against the order dated 11.07.2019 passed by the CIT(A)-5, Ahmedabad for the Assessment Year 2011-12. 2. The assessee has raised the following grounds of appeal :- “1. On the facts and in the circumstances of the case and in law the Assessing Officer erred in making addition to total income on account of cash deposit into saving bank account without appreciating the facts of case. 2. That having regard to facts and circumstances of the case and in law the Learned AO erred in making addition on account of salary income of Rs.6,66,348/- without appreciating the fact that TDS Rs.67240 on said salary income has already been deducted and paid by employer. Therefore salary income was fully offered to tax and no addition can be made on account of salary income. The Ld. AO was possessing information of TDS on salary while finalizing assessment for AY 2011 2012 despite Ld. AO made addition to income of Rs.6,66,348/- on account of salary income order passed was bad in law and against the facts and circumstances of the case. ITA No.1375/Ahd/2019 A.Y. 2011-12 Page 2 of 3 3. That having regard to facts and circumstances of the case, AO erred in treating cash deposit of Rs.12,48,000 in saving bank account as income from undisclosed sources without considering subsequent withdrawals from the said saving bank account. The addition made by AO is based on his estimation, presumption and surmise and therefore addition of Rs.12,48,000 to total income be deleted. 4. That AO failed to appreciate the fact that saving bank account no.699104000009874 with IDBI bank has been held in joint capacity with appellant wife Mrs. Asma Aman Saiyed having Income Tax PAN BKNPS8391G. Total cash deposit of Rs.12,48,000 in said saving bank account was done by appellant wife Mrs. Asma Aman Saiyed as she was arraying on the business of retail trading of ladies clothes. Therefore cash deposit of Rs.12,48,000 in saving bank account was in no way related to appellant and could not be treated as income of appellant. 5. The appellant prays that addition made by AO on account of salary income of Rs.6,66,348 and total cash deposit of Rs.12,48,000 in saving bank account with IDBI Bank as income from undisclosed sources be deleted.” 3. Notice under section 148 of the Income Tax Act, 1961 was issued to the assessee on 27.03.2018. Thereafter, notices under Section 142(1) were issued on 05.07.2018, 10.07.2018 & 14.08.2018 along with questionnaire. However, the assessee did not respond to the said notices. Notice under Section 142(1) along with questionnaire was issued on 23.10.2018 and the same remained un-complied. The Assessing Officer observed that the reasons in reopening the assessment was that during the year under consideration the assessee deposited cash of Rs.10 lakhs or more in SB account. As the assessee has neither furnished return nor given any details, the Assessing Officer passed assessment order dated 30.11.2018 under Section 144 read with Section 147 of the Act thereby making addition of Rs.12,48,000/- towards cash deposit treating the same as income from undisclosed source. 4. Being aggrieved by the assessment order the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal on the ground of delay of 23 days in filing the appeal. 5. The Ld. AR submitted that the assessee, who is an individual, drawing salary income and did not receive notices, hence was not able to attend the assessment ITA No.1375/Ahd/2019 A.Y. 2011-12 Page 3 of 3 proceedings in due course. Ld. AR submitted that the assessee has filed condonation of delay of 23 days thereby explaining that the assessment order was delivered at Ahmedabad address where his aged parents are residing and as they are not literate and remain sick due to old age could not give the assessment order at the relevant time. Ld. AR submitted that there is only delay of 23 days which are properly explained by the assessee but despite this fact the CIT(A) has dismissed the appeal on the ground of delay. The CIT(A) has not decided the issue on merit. Therefore, the Ld. AR prayed that delay in filing the appeal before the CIT(A) may be condoned and matter may be remanded back to CIT(A) for fresh hearing on merits. 6. The Ld. DR relied upon the assessment order and the order of the CIT(A). 7. We have heard both the parties and perused all the relevant material available on record. The delay in filing the appeal before the CIT(A) was properly explained by the assessee which was totally ignored by the CIT(A). Therefore, in the interest of justice, it will be appropriate to condone the delay and remand back the issue contested by the assessee to be dealt on merit by the CIT(A). Needless to say that the assessee be given opportunity of hearing by following the principles of natural justice. 8. In the result, appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on this 6 th day of July, 2022. Sd/- Sd/- (ANNAPURNA GUPTA) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 6 th day of July, 2022 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad