Dattatray Prakash Shelar, Pune V. Income-tax Officer, Ward - 4(6), Pune

ITA 1686/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5068 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 23-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 69

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.1686/PUN/2018 / ASSESSMENT YEAR : 2008-09 SHRI DATTATRAY PRAKASH SHELAR, NAGARGAON, ANDHALGAON PHATA, TAL. SHIRUR, PUNE-412 211 PAN : BFSPS7664J .... / APPELLANT ! / V/S. THE INCOME TAX OFFICER, WARD-4(6), PUNE. / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI RAJESH GAWALI / DATE OF HEARING : 05.02.2019 / DATE OF PRONOUNCEMENT : 06.02.2019 ' / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF LD. CIT(APPEALS)-8, PUNE DATED 18.05.2018 FOR THE ASSESSMENT YEAR 2008-09 AS PER FOLLOWING GROUNDS OF APPEAL ON RECORD: 1 . T HE LEARNED CIT(A)-8, PUNE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS. 15,75,000/- MADE BY THE LEARNED AO ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S. 69 OF THE ITA ,1961. TH E LEARNED CIT(A)-8, PUNE OUGHT TO HAVE APPRECIATED THAT THE CASH AMOUNT OF RS 15,75,OOO/- WAS DEPOSITED IN ORDER MEET THE CONDITION OF EMD (E ARNEST MONEY 2 ITA NO. 1686/PUN/2018 A.Y.2008-09 DEPOSIT) AND THE SAID CASH WAS EXTENDED BY THE RELA TIVES OF THE APPELLANT AS SOFT LOAN. 2. THE LEARNED CIT(A)-8, PUNE ERRED IN LAW AND ON F ACTS IN SUSTAINING ADDITION OF RS. 15,75,000/- MADE BY THE LEARNED AO WITHOUT APPRECIATING THE FACTS THAT SOFT LOAN EXTENDED BY THE RELATIVES WERE REFUNDED BACK BY THE APPELLANT. 3. THE APPELLANT CONTENDS THAT DUE TO DIFFICULTY OF COMMUNICATION AND COLLECTING INFORMATION, APPELLANT WAS UNABLE TO MAK E EFFECTIVE COMPLIANCE BY PROVIDING RELATED EVIDENCE. THE APPELLANT FURTHE R CONTENDS THAT THE APPELLANT IS KEEN TO CONTEST THE MATTER. 4. APPELLANT CRAVES LEAVE TO ADD/ MODIFY/ AMEND/DEL ETE ALL / ANY OF THE GROUNDS OF APPEAL. 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE S UBMITTED THAT THE ORDER PASSED BY THE LD. CIT(APPEALS) IS AN EX-PARTE ORDER WHERE UNFORTUNATELY THE ASSESSEE WAS UNABLE TO PRESENT HIMSELF EITHER PERSON ALLY OR THROUGH THE AR TO REPRESENT THE CASE ON MERITS AND BECAUSE OF WHIC H, THE LD. CIT(APPEALS) HAS DISPOSED OFF THE APPEAL EX-PARTE BASED ON EVIDENCES AND MATERIALS ON RECORD. 3. ON THIS BACKGROUND FACTS, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THEY WERE SUBJECTED TO SCRUTINY PROCEEDINGS THE LEARNE D ASSESSING OFFICER MADE ADDITION U/S.69 OF THE INCOME TAX ACT, 1961 (HEREINAFT ER REFERRED TO AS THE ACT) AMOUNTING TO RS.15,75,000/-. THE SAID ADDITION WA S MADE DUE TO NON-FILING OF CONFIRMATION FOR THE CASH ADVANCES RECEIVED FROM VARIOUS FAMILY MEMBERS WHICH WERE USED FOR DEPOSITION OF EMD( EARNEST MO NEY DEPOSIT) RELATING TO SOME AUCTION TRANSACTION. AGAINST THE ASSESSIN G OFFICERS ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(APPEALS). HOWEVER, THE SAME COULD NOT BE EFFECTIVELY COMPLIED WITH DUE TO FOLLOWING DIFFICULTIES: I) ASSESSEE STAYS IN A REMOTE VILLAGE AWAY FROM PUNE, WHERE THERE ARE DIFFICULTIES IN GETTING COMMUNICATIONS /LETTERS. II) ASSESSEE COMES FROM A LOW EDUCATION BACKGROUND. III) ASSESSEE HAS LOST COPIES OF THE DOCUMENTS SUBMITTED BE FORE THE LEARNED ASSESSING OFFICER AND EFFORTS WERE MADE TO GET CO PY OF THE SAME FROM THE LEARNED ASSESSING OFFICER. 3 ITA NO. 1686/PUN/2018 A.Y.2008-09 THE LD. AR OF THE ASSESSEE PRAYED THAT THE ASSESSEE IN TENDS OF ENSURING PROPER COMPLIANCES AND EXTEND PROPER EXPLANATIONS. UNFORT UNATELY, THE SAME REMAINED TO BE ENSURED EARLIER DUE TO AFORESAID DIFFICULTIES/ REASONS. ONE MORE OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO R EPRESENT THE CASE ON MERITS BEFORE THE REVENUE AUTHORITIES. 4. WE HAVE PERUSED THE CASE RECORDS AND ANALYZED TH E FACTS AND CIRCUMSTANCES IN THIS CASE. WE ALSO GIVEN THOUGHTFUL CONSIDE RATION TO THE ORDER OF LD. CIT(APPEALS) AND WE NOTICE THAT THE ORDER PA SSED BY THE LD. CIT(APPEALS) IS AN EX-PARTE ORDER WHEREIN THE ASSESSEE W AS NOT PRESENT FOR HEARING AND THE LD. CIT(APPEALS) DECIDED THE CASE ON THE BASIS OF EVIDENCES AND MATERIALS ON RECORD. IT IS THEREFORE ASCERTAINED THAT RIGHTS AND LIABILITIES OF TH E ASSESSEE, SANS THE PRESENCE OF THE ASSESSEE DURING HEARING, WERE NOT ADJUDICATED UPON. THE ONLY ADDITION MADE IN THIS CASE IS WITH REGARD TO NON FILING OF CONFIRMATIONS FOR CASH ADVANCES RECEIVED FROM VARIOUS FAMILY MEMBERS WHICH WAS USED TO DEPOSIT OF EMD (EARNEST MONEY DEPOSIT) RELAT ING TO SOME AUCTION TRANSACTION. THAT EVEN IN THE GROUNDS OF APPEAL, THE GRO UND NO.3 STATES THAT DUE TO DIFFICULTY OF COMMUNICATION AND COLLECTING INFORMATION, TH E ASSESSEE WAS UNABLE TO MAKE EFFECTIVE COMPLIANCE BY PROVIDING RELATED EVIDENCE AND THE ASSESSEE IS KEEN TO CONTEST THE MATTER. 5. THEREFORE, IN TOTALITY OF FACTS AND CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND R EMAND THE MATTER TO THE FILE OF ASSESSING OFFICER TO ADJUDICATE THE SAME AFTER PR OVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 4 ITA NO. 1686/PUN/2018 A.Y.2008-09 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED ON 06 TH DAY OF FEBRUARY, 2019. SD/- SD/- D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 06 TH FEBRUARY, 2019. SB '#$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-8, PUNE. 4. THE PR. CIT-4, PUNE. 5. '#$ %%&' , ( &' , - )*+ , / DR, ITAT, SMC BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 5 ITA NO. 1686/PUN/2018 A.Y.2008-09 DATE 1 DRAFT DICTATED ON 0 5 .0 2 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 0 5 .0 2 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER