DEVRAJ N VARN, MUMBAI V. ITO 19(2)(1), MUMBAI

ITA 1874/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8620 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J SARAVANAN
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRAD H AN, ACCOUNTANT MEMBER ITA NO.1874/MUM./2014 ( ASSESSMENT YEAR : 2009 10 ) DEVRAN N VARN, R.NO. 6, BALDEV KALURAM VARMA CHAWL, BESENT STREET, KHOTWADI SANTACRUZ (E) MUMBAI 400 054 PAN ADNPV2006P . APPELLANT V/S ITO 19(2)(1) AAYAKAR BHAVAN, M.K ROAD MUMBAI 400 020 . RESPONDENT ASSESSEE BY : SHRI DINKLE HARIYA REVENUE BY : SHRI J. SARAVANAN DATE OF HEARING 01.02.2017 DATE OF ORDER 10.02.2017 O R D E R PER: SAKTIJIT DEY THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 03 - 1 - 2014 OF LD. CIT (A) , MUMBAI FOR THE ASSESSMENT YEAR 2009 - 10. 2 DEVRAN N VARN ITA NO. 1874/MUM/2014 2. GROUND NO. 1 AND 2 RAISED BY THE ASSESSEE ARE ON THE ISSUE OF NON - CONSIDERATION OF ADDITIONAL EVIDENCE RESULTING IN VIOLATION OF RULES OF NATURAL JUSTICE. 3. BRIEFLY THE FACTS ARE , THE ASSESSEE AN INDIVIDUAL DERIVES INCOME F R OM MANUFACTURE AND SALE OF READYMA DE GARMENTS FROM HIS PROPRIETARY BUSINESS M/S MOON APPAREL . D URING THE ASSESSMENT PROCEEDING THE ASSESSING OFFICER HAVING FOUND THAT THE ASSESSEE HAD MADE CASH DEPOSIT OF RS. 25,66,423/ - IN HIS SAVINGS BANK ACCOUNT WITH ICICI BANK CALLED UPON THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH CASH DEPOSIT. IT IS ALLEGED BY THE ASSESSING OFFICER , IN SPITE OF REPEATED OPPORTUNITY BRING GRANTED TO HIM , THE ASSESSEE COULD NOT FURNISH NECESSARY DETAILS WITH DOCUMENTARY EVIDENCE TO EXPLAIN THE SOURCE OF CASH DEPOSIT. ACC ORDINGLY, THE ASSESSING OFFICER TREATED THE CASH DEPOSIT OF RS. 25,66,423/ - IN THE ICICI BANK ACCOUNT AS UNDISCLOSED INCOME OF THE ASESSEE AND ADDED BACK TO THE INCOME. T HOUGH , ASSESSEE CHALLENGED THE ADDITION BEFORE THE FIRST APPELLATE AUTHORITY HE ALSO C ONFIRMED THE ADDITION. 4. THE LD. AR SUBMITTED , THE ASSESSING OFFICER WITHOUT AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE TO FURNISH NECESSARY EVIDENCES COMPLETED THE AS SESSMENT BY MAKING THE ADDITION. HE SUBMITTED , THOUGH , BEFORE THE FIRST APPELLATE AUTH ORIT Y ASSESSEE HAD SUBMITTED DOCUMENTARY EVIDENCES , SUCH AS , COPIES OF SALE BILLS , PURCHASE 3 DEVRAN N VARN ITA NO. 1874/MUM/2014 VOUCHERS , LABOUR PAYMENT DETAILS ETC. BY WAY OF ADDITIONAL EVIDENCE , THE CIT(A) WITHOUT EXAMINING THE EVIDENCES SUBMITTED BY THE ASSESSEE ON ITS OWN MERIT REJECTED THEM AND PROCEEDED TO CONFIRM THE ADDITION. THE LD. AR , SUBMITTED THE EVIDENCES SUBMITTED BY THE ASSESSEE BEING NECESSARY AND RELEVANT MATERIAL FOR DECIDING THE ISSUE , THEY HAVE TO BE CONSIDERED. HE THEREFORE SUBMITTED , FOR RESTORATION OF THE ISSUE TO THE FILE OF THE A SSESSING OFFICER FOR DECIDING A FRESH AFTER EXAMINING THE DOCUMENTARY EVIDENCES SUBMITTED BY THE ASSESSEE. 5. THE LD. DR , THOUGH , SUBMITTED THAT IN SPITE OF SUFFICIENT OPPORTUNITY BEING GRANTED TO THE ASSESSE HE FAILED TO FURNISH NECESSARY EVIDENCES BEFORE THE A.O, HOWEVER, HE HAS NO SERIOUS OBJECTION IF THE ISSUE IS REMITTED BACK TO THE ASSESSING OFFICER FOR FRESH VERIFICATION. 6. WE HAVE CONSIDERED THE SUBMISSION S OF THE PARTIES AND PERUSED THE MATERIALS ON RECORDS. THE ISSUE IN DISPUTE REVOLVES AROUND THE CASH DEPOSIT OF RS. 25, 66,423/ - IN THE BANK ACCOUNT WITH ICICI BANK. IT IS NOTICE D , WHILE EXPLAINING THE SOURCE OF SUCH CASH DEPOSIT BEFORE THE ASSESSING OFFICER , THE ASSESSEE HAD SUBMITTED THAT SUCH DEPOSITS HAVE COM E FROM SALES EFFECTED AS WELL AS FROM EARLIER CASH WITHDRAWALS. HOWEVER, ASSESSING OFFICER HAS REJECTED ASSESSEE S CLAIM BY STATING THAT ASSESS E E HAD NOT SUBMITTED ANY SALES/ PURCHASE BILLS. 4 DEVRAN N VARN ITA NO. 1874/MUM/2014 WE HAVE NOTED , BEFORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE P RODUCED COPIES OF SALES BILLS , PURCHASE BILLS , LABOUR CHARGES ETC. BY WAY OF ADDITIONAL EVIDENCES. HOWEVER, LD. CIT(A) WITHOUT EXAMINING THE AUTHENTICITY OF THE EVIDENCES HAS REFUSED TO ADMIT THEM AS ADDITIONAL EVIDENCES AND PROCEEDED TO CONFIRM THE ADDIT ION. IN OUR VIEW , WHEN THE ADDITION MADE IS ON ACCOUNT OF NON - FURNISHING OF SALES/PURCHASE BILLS ETC. , IF BEFORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE COMES FORWARD AND SUBMITS THEM AS ADDITIONAL EVIDENCES , IN OUR VIEW THEY DESERVE TO BE EXAMINED IN P ROPER PERSPECTIVE AS THE ENTIRE ADDITION HINGES UPON NON - FURNISHING OF SUCH EVIDENCE S AND THAT BEING THE CASE, THE EVIDENCES SUBMITTED BY THE ASSESSEE MAY HAVE A CRUCIAL BEARING ON THE ISSUE. THEREFORE, IN OUR CONSIDER ED OPINION WITHOUT PROPERLY VERIFYING THE AUTHENTICITY/GENUIN EN ESS OF THE EVIDENCES PRODUCED , THEY CANNOT BE BRUSHED ASIDE/REJECTED. IN VIEW OF THE AFORESAID , WE ARE INCLINED TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THE ASSESSEE S CLAIM IN THE LIGHT OF EVI DENCES PRODUCED BY THE ASSESSEE. THE A SSESSING OFFICER MUST AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSE ON THE ISSUE. 7. IN VIEW OF OUR DECISION IN GROUND NO. 1 AND 2 THERE IS NO NEED TO ADJUDICATE GROUND NO. 3 AT THIS STAGE. 5 DEVRAN N VARN ITA NO. 1874/MUM/2014 IN THE RESULT A SSESSEE S APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 10.02.2017 SD/ - N.K. PRAD H AN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 10.02.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER NISHANT VERMA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI 6 DEVRAN N VARN ITA NO. 1874/MUM/2014 DATE INITIAL 1. DRAFT DICTATED ON 02 .02.2017 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 06.02.2017 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 08.02.2017 SR.PS 6. DATE OF PRONOUNCEMENT 10.02.2017 SR.PS 7. FILE SENT TO THE BENCH CLERK 10.02.2017 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER