HARBIRSING Y. BHAVRA , THANE V. ITO-4(5), THANE

ITA 1485/MUM/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2483 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 11-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Set aside
• Section: 113

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SANDEEP SINGH KARHAIL (JUDICIAL MEMBER) ITA No. 1485/MUM/2020 Assessment Year: 2015-16 Harbirsing Y. Bhavra, B/305, Ruchin Apartment, Sai Nagar, Vasai, Thane-401-209. Vs. Income Tax Officer-4(5), Room No. 03, A-Wing, 6 th floor, Ashar IT Park, Wagle Industrial Estate, Road No. 16-Z, Thane (W)-400-604. PAN No. ALJPB 7870 P Appellant Respondent Assessee by : Mr. Shashank Mehta, AR Revenue by : Mr. Ajeya Kumar Ojha, Sr. DR Date of Hearing : 29/06/2022 Date of pronouncement : 27/07/2022 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 20/09/2019 passed by the Ld. Commissioner of Income-tax (Appeals)-3, Thane [in short ‘the Ld. CIT(A)’] for assessment year 2015-16, raising following ground: 1. In the facts and circumstances of the CIT(A)-3, Thane has erred in confirming addition of ₹32,65,863/ books of accounts. 2. At the outset, the appeal has been filed with the delay. The impugned order has been passed on 20/09/2019 and therefore appeal before the was due on or before 19/11/2019, whereas this appeal is been filed on 12/03/2020 i.e. appeal has The Ld. counsel referred to the affidavit of the assessee wherein he submitted that Income handled by his employer 02/12/2019 and only a the assessee in the last week of January 2020 and thereafter on professional advice, he filed the appeal before the DR did not controvert the facts narrated by the assessee in the affidavit. In the circumstances, we were of the opinion In the facts and circumstances of the case and in law, the Ld. 3, Thane has erred in confirming addition of ₹32,65,863/- u/s 68 of the Act as unexplained credits in the books of accounts. the outset, the Ld. counsel of the assessee submitted that appeal has been filed with the delay. The impugned order has been passed on 20/09/2019 and therefore appeal before the was due on or before 19/11/2019, whereas this appeal is been filed i.e. appeal has been filed with the delay of 113 days. referred to the affidavit of the assessee wherein he Income-tax affairs of the assessee were used to be handled by his employer. Mr. Rafiq Khan, who passed away on 02/12/2019 and only after his demise, documents were provided to the assessee in the last week of January 2020 and thereafter on professional advice, he filed the appeal before the Tribunal did not controvert the facts narrated by the assessee in the the circumstances, we were of the opinion Harbirsing Y. Bhavra ITA No. 1485/M/2020 2 case and in law, the Ld. 3, Thane has erred in confirming addition of u/s 68 of the Act as unexplained credits in the of the assessee submitted that appeal has been filed with the delay. The impugned order has been passed on 20/09/2019 and therefore appeal before the Tribunal was due on or before 19/11/2019, whereas this appeal is been filed been filed with the delay of 113 days. referred to the affidavit of the assessee wherein he tax affairs of the assessee were used to be passed away on documents were provided to the assessee in the last week of January 2020 and thereafter on Tribunal. The Ld. did not controvert the facts narrated by the assessee in the the circumstances, we were of the opinion that there exist a sufficient cause for not filing the appeal by the assessee within the prescribed period and therefore appeal is condoned and the appeal is admitted for adjudication. 3. Briefly stated facts of the case are that the assessee e return of income on 18/02/2017 declaring total income of ₹2,96,900/-. The case was selected for scrutiny any statutory notices under the Income-tax served upon the assessee. The assessee was asked to explain cash on hand of ₹32,65,863/ balance sheet filed along with return of income response was filed by the assessee, despite several opp provided and therefor the Assessing Officer terms of section 68 of the before the Ld. CIT(A) however no various notices issued to the assessee for providing opportunity of exist a sufficient cause for not filing the appeal by the assessee within the prescribed period and therefore delay in appeal is condoned and the appeal is admitted for adjudication. iefly stated facts of the case are that the assessee e of income on 18/02/2017 declaring total income of case was selected for scrutiny any statutory notices tax Act, 1961 (in short ‘the Act’) were served upon the assessee. The assessee was asked to explain cash on 863/-appearing in the relevant column of the led along with return of income response was filed by the assessee, despite several opp fore, in absence of source of the cash on hand treated the same as unexplained cash credit in terms of section 68 of the Act. The assessee, filed further appeal before the Ld. CIT(A) however no compliance was made of the various notices issued to the assessee for providing opportunity of Harbirsing Y. Bhavra ITA No. 1485/M/2020 3 exist a sufficient cause for not filing the appeal by the assessee delay in filing of the appeal is condoned and the appeal is admitted for adjudication. iefly stated facts of the case are that the assessee e-filed his of income on 18/02/2017 declaring total income of case was selected for scrutiny any statutory notices were issued and served upon the assessee. The assessee was asked to explain cash on appearing in the relevant column of the led along with return of income, however, no response was filed by the assessee, despite several opportunities e of source of the cash on hand, the same as unexplained cash credit in . The assessee, filed further appeal was made of the various notices issued to the assessee for providing opportunity of hearing, thus Ld. CIT(A) dismissed the appeal of the assessee and upheld the addition made by the 4. Before us the Ld. counsel book containing pages 1 to 42 which consist of copy of the return of income filed and bank statement of the assessee in respect of bank accounts maintained in Central Bank of India ( 1182571864); Bassin Catholic Cooperative Bank ( 26335); Bank of India ( Bank (A/c No. 54752200086488). The bank statements have been filed for the first time before the Tribunal. 5. We have heard rival submiss dispute and perused the relevant material on record. The counsel submitted that assessee was not aware of the business hearing, thus Ld. CIT(A) dismissed the appeal of the assessee and upheld the addition made by the Assessing Officer. Ld. counsel of the assessee submitte book containing pages 1 to 42 which consist of copy of the return of income filed and bank statement of the assessee in respect of bank ined in Central Bank of India ( sin Catholic Cooperative Bank ( 335); Bank of India (A/c No. ending with 227) and Syndicate Bank (A/c No. 54752200086488). The Ld. Counsel bank statements have been filed for the first time before the We have heard rival submission of the parties on the dispute and perused the relevant material on record. The submitted that assessee was not aware of the business Harbirsing Y. Bhavra ITA No. 1485/M/2020 4 hearing, thus Ld. CIT(A) dismissed the appeal of the assessee and of the assessee submitted a paper book containing pages 1 to 42 which consist of copy of the return of income filed and bank statement of the assessee in respect of bank ined in Central Bank of India (A/c No. sin Catholic Cooperative Bank (A/c No. SB 227) and Syndicate Ld. Counsel submitted that bank statements have been filed for the first time before the ion of the parties on the issue-in- dispute and perused the relevant material on record. The Ld. submitted that assessee was not aware of the business which was carried out by his employer using his bank statement. The relevant part of his affidavit is reproduced as under: 1. That I was employed with Mr. Rafiq Habib khan. Mr. Rafiq Habib khan had opened various Bank Accounts in my name to undertake some basic transactions. Being my employer, I had no objections then as I was under the honest impression that Mr. Rafiq Habib khan basic transactions. Mr. Rafiq Habib khan solely used to operate these accounts 2. That all these transactions undertaken by Mr. Rafiq Habib khan solely and I was not aware about any of these transactions. 3. That Mr. Rafi Matters. I was under the honest impression that Mr. Rafig Habib khan was carefully handling all the income tax matters on timely basis. 4. That Mr. Rafiq Habib khan passed away on December 02, 2019. Only after hi transactions and very few documents were provided to me only in the last week of January, 2020. That, only after the receipt of the documents, I learnt that Mr. Rafiq Habib khan had undertaken such huge transactio the magnitude of these transactions. 5. Hence, this affidavit is being made in support of my contention that the transactions reflected in the bank accounts and which was carried out by his employer using his bank statement. The relevant part of his affidavit is reproduced as under: That I was employed with Mr. Rafiq Habib khan. Mr. Rafiq Habib khan had opened various Bank Accounts in my name to undertake some basic transactions. Being my employer, I had no objections then as I was under the honest impression that Mr. Rafiq Habib khan had opened these accounts to route some basic transactions. Mr. Rafiq Habib khan solely used to operate these accounts That all these transactions undertaken by Mr. Rafiq Habib khan solely and I was not aware about any of these transactions. That Mr. Rafiq Habib khan also used to handle my Income Tax Matters. I was under the honest impression that Mr. Rafig Habib khan was carefully handling all the income tax matters on timely basis. That Mr. Rafiq Habib khan passed away on December 02, 2019. Only after his demise, I was made aware regarding these transactions and very few documents were provided to me only in the last week of January, 2020. That, only after the receipt of the documents, I learnt that Mr. Rafiq Habib khan had undertaken such huge transactions and I had no idea about the magnitude of these transactions. Hence, this affidavit is being made in support of my contention that the transactions reflected in the bank accounts and Harbirsing Y. Bhavra ITA No. 1485/M/2020 5 which was carried out by his employer using his bank statement. The relevant part of his affidavit is reproduced as under: That I was employed with Mr. Rafiq Habib khan. Mr. Rafiq Habib khan had opened various Bank Accounts in my name to undertake some basic transactions. Being my employer, I had no objections then as I was under the honest impression that had opened these accounts to route some basic transactions. Mr. Rafiq Habib khan solely used to operate That all these transactions undertaken by Mr. Rafiq Habib khan solely and I was not aware about any of these q Habib khan also used to handle my Income Tax Matters. I was under the honest impression that Mr. Rafig Habib khan was carefully handling all the income tax matters That Mr. Rafiq Habib khan passed away on December 02, s demise, I was made aware regarding these transactions and very few documents were provided to me only in the last week of January, 2020. That, only after the receipt of the documents, I learnt that Mr. Rafiq Habib khan had ns and I had no idea about Hence, this affidavit is being made in support of my contention that the transactions reflected in the bank accounts and figures mentioned in the Income Tax Return do not belong to me. 5.1 The Ld. counsel willing to appear before the of cash balance appearing in the balance sh more opportunity might be provided to the assessee. We find that assessee has not been represented either before the Officer or before the Ld. CIT(A). The main reason for non compliance has been explained by the assessee as his income tax affairs were being looked after by his employer who expired on 02/12/2019. In view of facts and circumstances and in the interest of substantial justice, we set aside the order of the Ld. CIT(A) and Assessing Officer and restore the matter to the file of the Officer for deciding the issue directed to cooperate before the books of accounts including narration of bank statements et figures mentioned in the Income Tax Return do not belong to Ld. counsel of the assessee submitted that assessee is willing to appear before the Assessing Officer and explain the source of cash balance appearing in the balance sheet and therefore one more opportunity might be provided to the assessee. We find that assessee has not been represented either before the or before the Ld. CIT(A). The main reason for non compliance has been explained by the assessee as his income tax affairs were being looked after by his employer who expired on 9. In view of facts and circumstances and in the interest of substantial justice, we set aside the order of the Ld. CIT(A) and and restore the matter to the file of the for deciding the issue-in-dispute afresh. The asses operate before the Assessing Officer and file detailed books of accounts including narration of bank statements et Harbirsing Y. Bhavra ITA No. 1485/M/2020 6 figures mentioned in the Income Tax Return do not belong to of the assessee submitted that assessee is and explain the source et and therefore one more opportunity might be provided to the assessee. We find that assessee has not been represented either before the Assessing or before the Ld. CIT(A). The main reason for non- compliance has been explained by the assessee as his income tax affairs were being looked after by his employer who expired on 9. In view of facts and circumstances and in the interest of substantial justice, we set aside the order of the Ld. CIT(A) and and restore the matter to the file of the Assessing dispute afresh. The assessee is and file detailed books of accounts including narration of bank statements etc. required for verification issue in dispute involved. The ground of the appeal of the assessee is accordingly allowed for statistical purposes. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court Sd/- (SANDEEP SINGH KARHAIL JUDICIAL MEMBER Mumbai; Dated: 27/07/2022 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// required for verification issue in dispute involved. The ground of the appeal of the assessee is accordingly allowed for statistical In the result, the appeal of the assessee is allowed for statistical ounced in the Court on 27/07/2022. Sd/- SANDEEP SINGH KARHAIL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai Harbirsing Y. Bhavra ITA No. 1485/M/2020 7 required for verification issue in dispute involved. The ground of the appeal of the assessee is accordingly allowed for statistical In the result, the appeal of the assessee is allowed for statistical - OM PRAKASH KANT) MEMBER Sr. Private Secretary) ITAT, Mumbai