Shri Manubhai Nagjibhai Desai, Gandhinagar V. The ITO, Ward-3, Gandhinagar

ITA 1476/AHD/2019

AI Insights

The case involves Shri Manubhai N. Desai, who appealed against the order of the Ld. Commissioner of Income Tax (Appeals)-9, Ahmedabad, which arose from an earlier order by the ITO, Ward-3, Gandhinagar. The appeal contested the addition of Rs.58,72,520 as unexplained cash credit under Section 68 of the Income Tax Act, 1961, for the Assessment Year 2015-16. The addition was based on cash deposits made post-demonetization, which were not disclosed in the income returns. The assessee, due to health issues, failed to appear consistently at hearings, leading the Tribunal to proceed ex parte and eventually set aside the issue for a fresh assessment by the CIT(A).

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125403 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-05-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 25-09-2019
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Condonation of delay
• Section: 68; 148; 144; 142(1); 133(6); 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, AHMEDABAD BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER & Ms. MADHUMITA ROY, JUDICIAL MEMBER आयकर अपील सं./I. T. A. No . 1 476/Ahd/20 19 ( नधा रण वष / A ss es sment Year : 2015-16) Sh r i M an u b ha i N a g ji b hai D es ai 1, S h i yv a da , N a va V a d aj , D e hg a m , D is t. – G a nd hin a g a r - 3 8 23 05 बनाम/ Vs . ITO War d – 3, G a nd h in ag ar थायी लेखा सं./जीआइआर सं./P A N/ G I R N o . : A P M D P 2 9 6 0 F (अपीलाथ /Appellant) . . ( यथ / Respondent) अपीलाथ ओर से /Appellant by : None यथ क ओर से/Respondent by : Shri Atul Pandey, Sr. D.R. स ु नवाई क तार ख / D a t e o f H e a r i ng 01/06/2023 घोषणा क तार ख /D a t e o f P ro n o u nc e me n t 09/06/2023 O R D E R PER Ms. MADHUMITA ROY - JM: The instant appeal filed by the assessee is directed against the order dated 04.01.2019 passed by the Ld. Commissioner of Income Tax (Appeals)- 9, Ahmedabad arising out of the order dated 13.12.2017 passed by the ITO, ITA No. 1476/Ahd/2019 (Shri Manubhai N. Desai vs. ITO) A.Y.– 2015-16 - 2 - Ward-3, Gandhinagar under section 144 r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) for Assessment Year 2015-16. 2. At the time of hearing of the appeal, none appeared on behalf of the assessee, nor any adjournment has been sought for. It appears from the records that on very many occasions whenever the matter was fixed for hearing, except in one occasion, none appeared on behalf of the assessee, nor any adjournment has been sought for. Having no other alternative, we have decided to proceed with the matter ex parte. 3. It appears from the records, the appeal is time barred by 205 days. In support of which, an application for condonation of delay has been filed by the assessee. The reason behind such delay is critical illness of the assessee as he was diagnosed and suffered from oral cancer and cardiac illness. The diagnosis report and medical bills have also been annexed to such application for condonation of delay. Upon perusal of which, the reason for delay in preferring the appeals seems to be genuine. Such contention made by the assessee by filing this application for condonation of delay has also not been controverted by the Ld. DR with his fairness and hence, the delay is condoned. 4. Confirming addition of Rs.58,72,520/- as unexplained cash credit under Section 68 of the Act is under challenge before us. 5. As per information received by the Ld. CIT(CO) in AIR, that assessee deposited cash of Rs.20,82,015/- in bank post demonetization and as per system, assessee has not filed return of income for the required assessment ITA No. 1476/Ahd/2019 (Shri Manubhai N. Desai vs. ITO) A.Y.– 2015-16 - 3 - years. Since, the assessee has not disclosed the cash in hand in return of income for the earlier year, the case was taken up under scrutiny by issuing notice under Section 148 of the Act dated 22.03.2017 which was served upon the assessee followed by notice under Section 142(1) r.w.s. 129 of the Act alongwith questionnaire dated 04.07.2017. No return of income as per notice under Section 148 of the Act filed penalty under Section 271F of the Act was initiated therefor. Subsequently, after issuance of number of notices, the assessee submitted only agricultural bill on 09.11.2017 but no satisfactory explanation has been provided in respect of cash deposit. Assuming the same was deposited out of agricultural income, proof of agricultural income and expenses incurred for such agricultural activity, in respect of proof, crop grown and details of sources of expenditure incurred for agricultural income was directed to be produced. Subsequently, notice under Section 133(6) of the Act to the respective purchasers of agricultural product from the assessee was though served to one Gayatri Traders and M. N. Gopal & Bros., nothing was forthcoming from the Gayatri Traders. However, the other, namely M. N. Gopal & Bros. denied the transaction with the assessee. Finally, in the absence of any details furnished by the assessee as asked for as mentioned hereinabove and in the absence of any cooperation made by the assessee, judgment under Section 144 of the Act was passed upon making addition of Rs.58,72,520/- treating the same as unexplained income of the assessee derived from undisclosed sources. 6. Before us, none appeared on behalf of the assessee as we have already discussed hereinabove. However, for the ends of justice, we find that another opportunity of being heard to the assessee be given keeping in mind the ITA No. 1476/Ahd/2019 (Shri Manubhai N. Desai vs. ITO) A.Y.– 2015-16 - 4 - principle of fairplay and thus set aside the issue to the file of the Ld. CIT(A) with a direction upon him to decide the issue afresh upon giving notice to the assessee and upon taking into consideration the evidences on record or any other evidence which the assessee may choose to file at the time of hearing of the matter. 7. In the result, assessee’s appeal is allowed for statistical purposes. This Order pronounced on 09/06/2023 Sd/- Sd/- (ANNAPURNA GUPTA) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 09/06/2023 True Copy S. K. SINHA आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं%धत आयकर आय ु 'त / Concerned CIT 4. आयकर आय ु 'त(अपील) / The CIT(A)- 5. *वभागीय -त-न%ध, आयकर अपील य अ%धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड3 फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील$य अ%धकरण, अहमदाबाद / ITAT, Ahmedabad ITA No. 1476/Ahd/2019 (Shri Manubhai N. Desai vs. ITO) A.Y.– 2015-16 - 5 - 1 . D a t e o f d i c t a t i o n o n 0 2 . 0 6 . 2 0 2 3 2 . D a t e o n w h i c h t h e t yp e d d r a f t i s p l a c e d b e f o r e t he D i c t a t i n g M e m b e r 0 2 . 0 6 . 2 0 2 3 3 . D a t e o n w h i c h t h e a p p r o v e d d r a f t c o m e s t o t h e S r .P . S . / P . S . 0 9 . 0 6 . 2 0 2 3 4 . D a t e o n w h i c h t h e f a i r o r d e r i s p l a c e d b e f o r e t h e D i c t a t i n g M e m b e r f o r p r o n o u n c e m e n t 0 9 . 0 6 . 2 0 2 3 5 . D a t e o n w h i c h t h e f a i r o r d e r c o m e s b a c k t o t h e S r. P . S . / P . S 0 9 . 0 6 . 2 0 2 3 6 . D a t e o n w h i c h t h e f i l e g o e s t o t h e B e n c h C l e r k 0 9 . 0 6 . 2 0 2 3 7 . D a t e o n w h i c h t h e f i l e g o e s t o t h e H e a d C l e r k ... ... ... .... 8 . T h e d a t e o n w h i c h t h e f i l e g o e s t o t h e A s s t t . R e gi s t r a r f o r s i g n a t u r e o n t h e o r d e r ... ... ... ... ... ... ... ... 9 . D a t e o f D e s p a t c h o f t h e O r d e r ... ... ... Date on which the typed draft is placed before the Dictating Member 19.12.2019 1. Other Member..................... 2. Date on which the approved draft comes to