BHRUGESH RAMANBHAI PATEL, RAJKOT V. ITO, WARD-1(5), BHARUCH

ITA 191/SRT/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2476 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-02-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 27-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITA RAM MEENA
• Keywords: Unexplained cash credit; Gift; Additional evidence
• Section: 271(1)(c); 69A; 191

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No.191 & 192/SRT/2020 (AY 2009-10) (Hearing in Virtual Court) Shri Bhrugesh Ramanbhai Patel, Juna Falia, At & Post Umalla, Ta.Jhagadia – 393 120. Bharuch. PAN: AHIPP 4066 E Vs The Income Tax Officer, Ward-1(5), Bharuch. Appellant/ Revenue Respondent/ Assessee Assessee by Shri Mehul Ranpura – CA Revenue by Shri Sita Ram Meena – Sr.DR Date of hearing 16/02/2022 Date of pronouncement 16/02/2022 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by the assessee are directed against the separate orders of ld. Commissioner of Income Tax (Appeals)-3, hereinafter referred as “ ld CIT(A)” Vadodara both even dated 19.03.2020 for Assessment Year (A.Y.) 2009-10. The grounds of appeal in both the appeals are inter-connected, because as appeal in ITA No.191/SRT/2020 relates to quantum assessment and appeal in ITA No.192/SRT/2020 relates to levy of penalty under section 271(1)(c) of the Act on the addition made in the quantum assessment for the same assessment year. Therefore, both the appeals were clubbed, heard and ITA No’s: 191 & 192/SRT/2020 (AY 2009-10) Shri Bhrugesh Ramanbhai Patel, Bharuch 2 are decided by a consolidated order. The assessee in ITA No.191/SRT/2020 raised the following grounds appeal: “1) The grounds of appeal mentioned hereunder are without prejudice to one another. 2) The ld. Commissioner of Income-tax (Appeals)-3, Vadodara (hereinafterreferred to as the “CIT(A)”] was erred on facts as also in law in dismissing the appeal ex-parte. 3) The ld. CIT(A) erred on facts as also in law in confirming action of AO in rejecting appellant’s claim of agriculture income of Rs.5,97,980/- alleged ground not producing evidences. The addition made and confirmed is totally unjustified and uncalled for which deserves to be deleted may kindly be deleted. 4) The ld. CIT(A) erred on facts as also in law in confirming addition made by the AO of Rs.18,15,477/- on account of alleged unexplained credit entries in the bank held with ICICI Bank and HDFC Bank. The addition confirmed is totally unjustified on facts as also in law and may kindly be directed to be deleted. 5) Your Honour’s appellant craves leave to add, to amend, alter, or withdraw any or more grounds of appeal on or before the hearing of appeal.” 2. The assessee in ITA No.192/SRT/2020 ( against penalty order) raised the following grounds appeal: “1) The grounds of appeal mentioned hereunder are without prejudice to one another. 2) The ld. Commissioner of Income-tax (Appeals)-3, Vadodara (hereinafterreferred to as the “CIT(A)”] was erred on facts as also in law in dismissing the appeal ex-parte. 3) The ld. CIT(A) erred on facts as also in law in confirming penalty of Rs.7,12,770/- on additions made (1) Rs.5,97,980/- on account agriculture income and (2) Rs.18,15,477/- being unexplained credits entries in bank account held with ICICI Bank and HDFC Bank. The penalty confirmed is totally unjustified and deserves to be deleted, may kindly be deleted. 4 ) Your Honour’s appellant craves leave to add, to amend, alter, or withdraw any or more grounds of appeal on or before the hearing of appeal.” ITA No’s: 191 & 192/SRT/2020 (AY 2009-10) Shri Bhrugesh Ramanbhai Patel, Bharuch 3 3. At the outset of hearing, the ld. Authorised Representative (ld.AR) of the assessee submits that the ld.CIT(A) has passed ex-parte order without giving fair and proper opportunity to the assessee. The assessee is an agriculturist and living in village and is not having electronic means of communication. The ld.AR of the assessee submits that assessee has good case on merit and is likely to succeed, if the assessee is given one more opportunity of hearing on merit. The ld.AR further submits that the Assessing Officer (AO) made addition in the assessment on account of cash deposit in bank. The AO made addition of Rs.5,97,980/- by taking view that assessee could not establish the claim of agricultural income. The AO made further addition of Rs.18,15,477/- on account of unexplained cash credit under section 69A of the Act in absence of evidence. The ld.CIT(A) upheld the addition in ex-parte order. 4. The ld AR for the assessee further second appeal in ITA No.192/SRT/2020 relates to the penalty levied under section 271(1)(c) on the additions in quantum assessment. The ld.CIT(A) dismissed the appeal in ex-parte order on the same day. 5. The ld.AR for the assessee further submits that he has filed an application for Admission of additional evidence, which consist of passport of brother of assessee Shri Rileshkumar R.Patel and confirmation of gift received from his ITA No’s: 191 & 192/SRT/2020 (AY 2009-10) Shri Bhrugesh Ramanbhai Patel, Bharuch 4 brother. The brother of the assessee is non-resident Indian and at present residing in California- USA. The brother of the assessee has gifted money, which was received through foreign remittance. The assessee has also filed details of agricultural holdings own by the assessee. All the details/evidence are relevant adjudication of issue under consideration and may be admitted for examination by the lower authorities. The ld.AR for the assessee submits that matter may be restored to the AO to examine and verify all the evidence including the additional evidence furnished by the assessee. 6. On the other hand, the ld. Senior Departmental Representative (ld.Sr.DR) for the Revenue submits that assessee was given ample opportunity by ld CIT(A) as recorded in para 3 of his order. The assessee neither attended the hearing nor furnished any written submission to substantiate various grounds of appeal. The ld.CIT(A) accordingly presumed that assessee is not interested in prosecuted the appeal and the appeals were dismissed by relying upon various decisions of superior courts. The assessee does not deserve any leniency. Even in case the bench considered to grant opportunity to the assessee the appeals may be restored to the file of ld CIT(A). 7. In the rejoinder submission, the ld.AR of the assessee submits that the assessee filed appeal in quantum assessment as well as in penalty levied under section 271(1)(c) of the Act and paid the requisite appeal fees, before ld CIT(A) as ITA No’s: 191 & 192/SRT/2020 (AY 2009-10) Shri Bhrugesh Ramanbhai Patel, Bharuch 5 well as before Tribunal, which clearly shows the bonafide act of the assessee that assessee was in fact interested in pursuing his appeal. The ld.AR of the assessee further submits that the ld.CIT(A) has not adjudicated the appeal on merit and dismissed in limine. 8. We have considered the rival submissions of the parties and have gone through the orders of the lower authorities. We find that the ld.CIT(A) upheld the additions made by the Assessing Officer as assessee was given ample opportunity as recorded in para 3 of order of ld.CIT(A), the assessee neither attended the hearing nor furnished any written submission to substantiate various grounds of appeal. Before us, the ld AR for the assessee vehemently submitted that no notice of hearing was received by the assessee and that the assessee may be given one more opportunity of hearing on merit. We noted that the ld CIT(A) in his order has recorded that three notices were issued to the assessee and the assessee failed to make any submissions. We find that the ld CIT(A)has not recorded his satisfaction, if the notices were really served on the assessee or not. We find one more reason that the order of the ld.CIT(A) dismissed the appeal of the assessee in limine without discussing the facts of the case, therefore, his order is not in accordance with mandate of section 250(6) of the Income Tax Act. Section 250(6) of the Act mandates that the Ld. CIT(A) while deciding the appeal is required to pass order on points of ITA No’s: 191 & 192/SRT/2020 (AY 2009-10) Shri Bhrugesh Ramanbhai Patel, Bharuch 6 determination (grounds of appeals), decision therein on and reasons for such decision. 9. The assessee has also filed an application for additional evidence. Before us, the ld AR for the assessee argued that he has filed copy of passport of brother of assessee and confirmation of gift received from his brother. The brother of the assessee is non-resident Indian and at present residing in California- USA, who gifted money, which was received through foreign remittance. The assessee has also filed certain details of agricultural holdings own by the assessee. And that additional evidence are relevant adjudication of issue under consideration. We noted that the ld Sr DR for the revenue has not seriously objected on admission of additional evidence. Considering the submissions of the ld AR for the assessee and on perusal of the such additional evidence, we are of the view that the additional evidence has bearing on the issue/ addition, thus, the additional evidence filed by the assessee are admitted. 10. Therefore, considering the facts and circumstances of the case, the appeal of the assessee is restored back to the file of the ld.CIT(A) to decide all the grounds of appeal on merit in accordance with law. The ld CIT(A) may seek the remand report form the AO on the additional evidence if so desired. The assessee is directed to make compliance before the ld.CIT(A) as and when the ITA No’s: 191 & 192/SRT/2020 (AY 2009-10) Shri Bhrugesh Ramanbhai Patel, Bharuch 7 date of hearing is fixed and to provide all necessary evidence and information without any further delay and not to seek the adjournment without any valid reasons. Accordingly the ground of appeal by assessee are allowed for statistical purpose. In the result, the appeal of the Assessee is allowed for statistical purpose. 11. Considering the facts that we have restored the appeal in quantum assessment in ITA No. 191/SRT/2020, therefore, the appeal in ITA No.192/SRT/2020 is also restored to the file of ld CIT(A) to adjudicate penalty appeal after the disposal of appeal in quantum assessment. 12. In the result, both the appeals of assessee are allowed for statistical purpose. Order announced on 16 th February, 2022 by placing the result on the notice board. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat Dated: 16 /02/2022 /SGR* Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By Order / / TRUE COPY / / Sr.Pvt.Secretary, ITAT Surat