Manjoj Madhukarrao Chidrewar, Latur V. Income-tax Officer,

ITA 2205/PUN/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0496 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.2205/PN/2016 / ASSESSMENT YEAR : 2009-10 MANOJ MADHUKAR CHIDREWAR, THODGE ROAD, OPP. NAVJEEVAN HOSPITAL, AHMEDPUR, DIST. LATUR - 413515 PAN : AAFCPC1598Q . / APPELLANT V/S ITO, WARD-3(4), LATUR . / RESPONDENT / APPELLANT BY : SHRI HARI KISHAN / RESPONDENT BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 05-07-2016 OF THE CIT(A)-2, AURANGABAD RELATING TO ASSESSMENT YEAR 2009-10. 2. ADDITION OF RS.7,10,655/- BY THE ASSESSING OFFICER AS INC OME FROM UNEXPLAINED SOURCES WHICH HAS BEEN UPHELD BY THE CI T(A) IS THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE VARIOUS G ROUNDS OF APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 31-03-2010 DECLA RING TOTAL INCOME AT RS.1,64,570/-. DURING THE COURSE OF ASSESS MENT PROCEEDINGS THE ASSESSING OFFICER, ON THE BASIS OF THE BAN K / DATE OF HEARING :07.11.2016 / DATE OF PRONOUNCEMENT:09.11.2016 2 ITA NO.2205/PN/2016 STATEMENT OBTAINED DIRECTLY FROM THE BANK IN ABSENCE OF NON- COMPLIANCE BY THE ASSESSEE, OBSERVED THAT ASSESSEE HAS DEPOSITED CASH OF RS.30,41,478/-, THE DETAILS OF WHICH ARE AS UNDER : 1. BANK OF MAHARASHTRA RS.14,57,663/- 2. MAHESH URBAN CO.OP. BANK RS.13,33,815/- 3. STATE BANK OF HYDERABAD RS. 2,50,000/- -------------------- TOTAL RS.30,41,478/- -------------------- 4. IN VIEW OF THE NON-COMPLIANCE FROM THE SIDE OF THE ASSE SSEE AND OBSERVING THAT THE GROSS RECEIPT SHOWN BY THE ASS ESSEE AT RS.21,78,454/- ONLY WHICH IS LESS THAN THE DEPOSITS IN THE BANK ACCOUNT, THE ASSESSING OFFICER MADE ADDITION OF RS.7,10,655/- BEING THE DIFFERENCE BETWEEN THE TOTAL DEPOSIT IN THE BANK ACCOUNTS AND THE TOTAL GROSS RECEIPTS SHOWN AS INCOME FROM UNE XPLAINED SOURCES. 5. IN APPEAL THE LD.CIT(A) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT ASSESSEE WAS NOT A BLE TO PROVE THE DEPOSIT OF EXCESS CASH OF RS.7,10,655/- IN THE BANK ACCOUNT OVER AND ABOVE ITS TOTAL RECEIPTS. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUB MITTED THAT THE ASSESSEE WAS PURSUING HIS STUDIES AT PUNE DUR ING THE IMPUGNED ASSESSMENT YEAR. HE WAS HELPED BY HIS FATHER. DUE TO HIS STUDIES AT PUNE HE WAS UNABLE TO APPEAR BEFORE THE ASSESSING OFFICER FOR WHICH THE ASSESSING OFFICER PASSED AN EXPARTE OR DER MAKING THE ADDITION OF RS.7,10,655/-. HE SUBMITTED THAT TH E ADVOCATE FOR THE ASSESSEE APPEARED ONLY ONCE OUT OF S EVERAL 3 ITA NO.2205/PN/2016 OPPORTUNITIES GRANTED BY THE CIT(A) AND HAS MISREPRESENT ED THE CASE FOR WHICH THE LD.CIT(A) UPHELD THE ADDITION MADE BY TH E ASSESSING OFFICER. HE SUBMITTED THAT IN THE MEANTIME HE HA S GONE THROUGH THE CASE RECORD AND IS IN A POSITION TO EXPLAIN E ACH AND EVERY DEPOSIT IN THE SAID BANK ACCOUNT. HE ACCORDINGLY SUBMITTED THAT IF THE MATTER IS SET ASIDE TO THE FILE OF THE CIT(A) THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE HIS CASE WITH EVIDENCE TO TH E SATISFACTION OF THE CIT(A) THAT THERE IS NO UNEXPLAINED DEPO SIT IN THE BANK ACCOUNT. HE ACCORDINGLY REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE CIT(A). 8. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED TH AT DESPITE REPEATED OPPORTUNITIES GRANTED BY THE ASSESSING OFFICER T HE ASSESSEE DID NOT BOTHER TO APPEAR BEFORE HIM. ALTHOUGH THE LD.CIT(A) HAD GIVEN ENOUGH OPPORTUNITY TO THE ASSESSEE, H OWEVER, THE ASSESSEE COULD NOT SUBSTANTIATE WITH EVIDENCE TO T HE SATISFACTION OF THE CIT(A) REGARDING THE SOURCE OF CASH DEP OSITS IN THE BANK ACCOUNT. EVEN NOW ALSO THE LD. COUNSEL FOR THE ASSESSEE HAS NOT SUBSTANTIATED THE SOURCE OF THE DEPOSITS. HE A CCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT(A) BE UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 9. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH T HE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. I FIND THE ASSESSING OFFICER D URING THE COURSE OF ASSESSMENT PROCEEDINGS OBTAINED THE BANK STATEMENT FROM THE BANKS AND NOTED THAT THE ASSESSEE HAS MADE DEPOSIT OF CASH OF RS.30,41,478/- IN THE 3 BANK ACCOUNTS MAINTAINED B Y IT. SINCE THE TURNOVER/GROSS RECEIPTS SHOWN BY THE ASSESS EE WAS 4 ITA NO.2205/PN/2016 RS.21,78,454/- ONLY FROM WHOLESALE BUSINESS AND SINCE THERE WAS NON-COMPLIANCE FROM THE SIDE OF THE ASSESSEE THE ASSESS ING OFFICER MADE ADDITION OF RS.7,10,655/- BEING THE DIFFERENCE BETWEEN T HE TOTAL CASH DEPOSITS IN THE BANK ACCOUNT AND THE TOTAL GROSS RECE IPTS DURING THE YEAR AS INCOME FROM UNEXPLAINED SOURCES. I FIND IN ABSENCE OF PROPER EXPLANATION SUBSTANTIATING THE CASH DE POSIT IN THE BANK ACCOUNTS THE LD.CIT(A) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. IT IS THE SUBMISSION OF THE LD. COUNSEL FO R THE ASSESSEE THAT THE CASE WAS NOT PROPERLY HANDLED AND GIVEN AN OPPORTUNITY HE IS IN A POSITION TO EXPLAIN THE CASH DEPOS IT OF RS.30,41,478/- IN THE 3 BANK ACCOUNTS MAINTAINED BY THE ASSESSEE. CONSIDERING THE TOTALITY OF THE FACTS OF THE C ASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GIVE ONE MORE OPPORTUN ITY TO THE ASSESSEE TO SUBSTANTIATE THE CASH DEPOSIT OF RS.30,4 1,478/- IN THE 3 BANK ACCOUNTS MAINTAINED BY THE ASSESSEE. NEEDLE SS TO SAY, THE CIT(A) SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER FACT AND LAW. I HOLD AND DIRE CT ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ARE ACCOR DINGLY ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09-11-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED : 09 TH NOVEMBER, 2016. 5 ITA NO.2205/PN/2016 '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // $ % / TRUE COPY // // TRUE COPY // &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - 2 , AURANGABAD 4. THE PR.CIT-2, AURANGABAD 5. $ %%* , * , SMC BENCH / DR, ITAT, SMC BENCH PUNE; 6. 2 / GUARD FILE.