Mayankkumar Shantilal Doshi, Ahmedabad V. The ITO, Ward-6(1)(3), Ahmedabad

ITA 216/AHD/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3924 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 14-09-2021
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 68; 250; 143(2)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH (Conducted Through Virtual Court) Before: Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member Mayankkumar Sha ntilal Doshi, 17, Neh ru park Society , Nr. Bhairav nath Ch ar Rasta Maninagar, Ah medabad -3 80008 PAN: AKSP D6 933H (Appellant) Vs The ITO, Ward-6(1)(3), Ah med abad (Resp ondent) Asses see b y : Shri S. N. Div atia, A.R. Revenue by : Shri R. R. Ma kwana , Sr. D. R. Date of hearing : 31-03 -2022 Date of pronouncement : 25-04 -2022 आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- This is an appeal filed by the assessee against the order of the National Faceless Appeal Centre (NFAC), Delhi in DIN & Order No. ITBA/NFAC/S/250/2021-22/1034412457(1) dated 26/07/2021 passed for the assessment year 2012-13. 2. The assessee has raised following grounds of appeal:- ITA No. 216 /Ahd/2021 Assessment Year 2012-13 I.T.A No. 216/Ahd/2021 A.Y. 2012-13 Page No. Mayankkumar Shantilal Doshi Vs. ITO 2 “1.1 The order passed u/s. 250 on 26.07.2021 for A.Y. 2012-13 by NFAC, Delhi upholding the addition of Rs. 16,40, 500/- made by AO as unexplained cash deposits u/s. 68 in bank account no. 0347010243 17 with 1CIC1 Bank, Usmanpura Branch is wholly illegal, unlawful and against the principles of natural justice. 2.1 The Ld. NFAC has grievously erred in law and or on facts in holding that the appellant had failed to make submission in spite of notices issued on 21.01.2021, 31.05.2021 and 06.07.2021. The NFAC has failed to appreciate that there was a sufficient cause for failure to comply with the aforesaid notices. 2.2 The Ld. NFAC has grievously erred in law and on facts in not allowing sufficient opportunity before passing the impugned order and confirming the addition of Rs.16,40,500/-. There was gross violation of the principles of natural justice and the appellant should be allowed to produce additional evidence which may be taken into consideration while disposing off this appeal. 3.1 The Ld. NFAC has grievously erred in law and on facts in confirming that the alleged bank account with ICICI Bank Usmanpura Branch belong to the appellant and he had made cash deposits of Rs.16,40,500/- therein and thereby confirming the addition of Rs.16,40,500/- as his undisclosed income in spite of categorical statement in the letter dated 03.10.2018 filed with AO disowning the said bank account as well as the impugned cash deposits therein. 3.2 That in the facts and circumstances of the case as well as in law, the Ld. NFAC ought not to have upheld that the alleged bank account with 1CIC1 Bank Usmanpura Branch belong to the appellant and he had made cash deposits of Rs. 16,40, 500/-therein and thereby confirming the addition of Rs. 16,40, 500/-as his undisclosed income. 3.3 The Ld. NFAC ought not to have confirmed the impugned addition without allowing the copy of statement of Sh. Viral Oza, Dy. Branch Manager, ICICI Bank, Usmanpura Branch, and the opportunity to cross-examine said Branch Manager as well as Bharat G Shah. Both the lower authorities have failed to make proper and detailed inquiry/investigation before making the impugned addition or I.T.A No. 216/Ahd/2021 A.Y. 2012-13 Page No. Mayankkumar Shantilal Doshi Vs. ITO 3 holding the said bank account and cash deposits therein as belonging to the appellant. 4.1 Without prejudice to above and in alternative and assuming without admitting, the impugned addition is excessive and the same should have been restricted to the peak amount in view of the rotation of cash deposit and withdrawals. It is, therefore, prayed that the addition of Rs. 16,40, 500/-upheld by the NFAC may kindly be deleted.” 3. The facts of this case are that the assessee is an individual who was earlier working as a staff member in the office of Mr. Bharat G. Shah from 1982 to 1993. He is not assessed to tax since his income is below the taxable limit. The Assessing Officer was in possession of information that the assessee has deposited cash of Rs. 16,40,500/- in his saving bank account held with ICICI Bank during the relevant year. The assessee however did not file return of income. The Assessing Officer issued 148 notice in response to which the assessee filed return declaring “ Nil” income. During assessment the assessee stated that the bank account did not belong to him and bank account belonged to his former employer Ms. Bharat Shah who misused his PAN No. and deposited the money in the account. The office of Assessing Officer issued summons to ICICI Bank and took on record the reply of deputy branch manager of ICICI Bank, Usmanpura Branch and came to the conclusion that the amount was deposited by the assessee and added the sum of Rs. 16,40,500/- as unexplained cash deposit u/s. 68 of the Act. While passing the order, the ld. Assessing Officer observed as below:- “It is verified that after issued of show cause the assessee filed a return of income on 22.09.2018 and declaring total income of NIL. Subsequently, a notice u/s. 143(2) was also issued to the assessee on 15.10.2018. In response to the said notices, assessee attended and I.T.A No. 216/Ahd/2021 A.Y. 2012-13 Page No. Mayankkumar Shantilal Doshi Vs. ITO 4 explained that he is maintained only one account with VIJAYA BANK A/c No. 73040101000861 and also explain that he ready to cooperate with office any time. Further, he also said that Mr. Bharatbhai Ghanshyambhai Shah used his PAN. Therefore, this office has issued issued summons to ICICI Bank Ltd, Anushree Complex, Nr. Hotel fortune Landmark, Usmanpura, Ahmedabad. Mr. Viral Oza Deputy Branch Manager, Usmanpura Branch, Ahmedabad. The reply of the summons is recorded and kept on records. Now, all the circumstances verified and also all documents and data made available on record an amount of Rs.16,40,500/- is considered as unexplained cash deposit u/s.68 of the Act and added to the total income of the assessee.” 4. In appeal before ld. CIT(A), he dismissed the assessee’s appeal and confirmed the order of ld. Assessing Officer by observing as under:- “2 As mentioned above the appellant did not file any written submission during the appeal proceedings. In the grounds of appeal the appellant has mentioned that the AO has made this addition without making any independent enquiry. However, in the Assessment Order the AO has clearly mentioned that he has obtained information from ICICI Bank Usmanpura Bracnh, Ahmedabad and on the basis of his enquiry only the AO has made the addition. On the other hand the appellant tried to mislead investigation by claiming that one Mr. Bharatbhai Ghanshyambhai Shah used his PAN. After considering the totality of facts, I have come to a conclusion that the AO has rightly made the addition. The grounds of appeal no. 1 is dismissed and addition of Rs. 16,40,500/- is confirmed.” 5. Before us, the ld. counsel for the assessee submitted that the bank account does not belong to the assessee in the first instance. He pointed that the address mentioned in the ICICI Bank is incorrect since the assessee is residing at Maninagar, Ahmedabad. He submitted that the assessee is only maintaining bank account with Vijaya Bank, and in the passbook of Vijaya Bank, the correct address is mentioned. In support of this contention, the ld. counsel for the assessee drew our attention to page no. 6, 9 and 21 of the I.T.A No. 216/Ahd/2021 A.Y. 2012-13 Page No. Mayankkumar Shantilal Doshi Vs. ITO 5 paper book to support the facts that the address mentioned with ICICI Bank account is incorrect. Secondly, the ld. counsel for the assessee submitted that in the instant case, the ICICI Bank account has been misused by his former employer, with whom he was working a staff member. In support of his contention, he drew our attention to page 10 of the paper book wherein Mr. Bharat Shah has been regularly withdrawing large sums from the ICICI bank account, without the knowledge of the assessee. Ld. Counsel for the assessee submitted that the ICICI Bank account was being operated by assessee’s former employer by misusing assessee’s PAN Number. The Ld. Counsel for the assessee further drew our attention to page 17 of paper book and pointed out that the assessee had written a letter dated 2 nd March, 2020 to Assessing Officer requesting him to furnish reply of Mr. Viral Oza, Deputy Manager of ICICI Bank, on the basis of which high pitched assessment was framed against the assessee. Ld. Counsel for the assessee submitted that the assessee was never provided copy of reply of ICICI Deputy Manager, Mr. Viral Oza and therefore no opportunity was provided to the assessee to rebut the reply of Deputy Manager, ICICI Bank, on the basis of which assessment was framed. In response, the ld. D.R. relied upon the observations of ld. CIT(A) in his order. 6. We have heard the rival contentions and perused the material available on record. We note that the assessee was working as staff member with Bharat Shah and is now retired. The assessee has submitted that he never held any account with ICICI Bank and even address mentioned in the passbook of ICICI Bank is incorrect. He further submitted that the said ICICI Bank is being operated by his formed employer by misusing his PAN I.T.A No. 216/Ahd/2021 A.Y. 2012-13 Page No. Mayankkumar Shantilal Doshi Vs. ITO 6 as may be evident from the fact that Mr. Bharat Shah, his former employer withdrew substantial sums from the said bank account. The assessee has alleged that the assessment was framed on the basis of reply given by Deputy Branch Manager of ICICI Bank, Usmanpura Branch, Ahmedabad where according to the assessee, he never maintained any bank account. The ld. D.R. has not been able to point out any reason why the reply of Deputy Branch Manager of ICICI Bank was never furnished to the assessee and why no opportunity was granted to the assessee to rebut the same. Further, from the records of ICICI Bank, it is seen that cheques for substantial amount of money were issued to Mr. Bharat Shah and apparently there is no reasonable explanation why the assessee would issue this amount to Mr. Bharat Shah. Also, there seems to be no reasonable explanation why the passbook of ICICI Bank has mentioned incorrect address of assessee. Looking into the totality of facts of the case, we think in the interest of justice the matter may be set aside to the file of ld. Assessing Officer and pass fresh assessment after giving due opportunity to the assessee to rebut the material on the basis of which the assessment has been framed. 7. In the result, the assessee’s appeal is allowed for statistical purposes. Order pronounced in the open court on 25-04-2022 Sd/- Sd/- (WASEEM AHMED) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 25/04/2022 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- I.T.A No. 216/Ahd/2021 A.Y. 2012-13 Page No. Mayankkumar Shantilal Doshi Vs. ITO 7 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/ आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद