Shri Nirav Dineshbhai Patel, Lunawada V. ITO, Ward-1, Lunawada

ITA 2231/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2289 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 06-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA; MEHUL TALERA ARS
• Keywords: Corroborative evidences
• Section: 143(3); 69

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER &SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 2231/AHD/2017 ( / ASSESSMENT YEAR:2013-14) SHRI NIRAV DINESHBHAI PATEL 3/262, PAEKHWADA 81, FATEHBAG PALACE, WAGADHARI ROAD, LUNAWADA / VS. ITO WARD-1 4 TH FLOOR, DAYALU COMPLEX ABOVE SUBHECHCHHA HOSPITAL MODASA ROAD LUNAWADA ./ ./PAN/GIR NO. : ALP PP3 065 Q ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S. N. DIVATIA & MEHUL TALERA, A.RS. / RESPONDENTBY: SHRI VIRENDRA SINGH, SR. DR !' /DATE OFHEARING 12/06/2019 #$!' / DATE OF PRONOUNCEMENT 26/06/2019 %& /O R D E R PER AMARJIT SINGH - AM: THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2013-14, ARISE FROM ORDER OF THE CIT(A)-4, VADODARA DATED 26.06.2017, IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE SOLITARY GROUND OF APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) IN CONFIRMING THE ADDITION OF RS. 18,79,000/- AS UNEXP LAINED MONEY UNDER SEC. 69 OF THE ACT. ITA NO. 2231/AHD/2017 A.Y. 2013-14 2 3. THE FACT IN BRIEF IS THAT RETURN OF INCOME DECLA RING INCOME OF RS. 1,92,735/- WAS FILED ON 24.09.2013. SUBSEQUENTLY THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING OF NOTICE U/S. 143(2) ON 02.09.2014. DURING THE COURSE OF ASSESSMENT THE AO NOTICED THA T ASSESSEE HAS DEPOSITED TOTAL AMOUNT OF RS. 18,79,000/- IN CASH ON DIFFEREN T DATE IN HIS BANK ACCOUNT MAINTAINED WITH LUNAWADA PEOPLES COOPERATIVE BANK L TD. THE AO STATED THAT ON QUERY THE ASSESSEE RESPONDED THAT NEITHER HE HAS AN Y BANK ACCOUNT NOR ANY CASH DEPOSIT MADE IN ANY OTHER BANK ACCOUNT EXCEPT DENA BANK ACCOUNT. THEREAFTER, THE AO HAS ISSUED A SHOW-CAUSE NOTICE DATED 12.02.2016 TO THE ASSESSEE TO EXPLAIN WHY NOT THE CASH DEPOSIT OF RS. 18,79,000/- SHOULD BE T REATED AS UNEXPLAINED CONCEALED INCOME. THE ASSESSEE HAS FAILED TO FURNISH ANY REP LY BEFORE THE AOCONSEQUENTLY, THE AO HAS TREATED THE IMPUGNED CASH DEPOSIT AS UNEXPLA INED U/S. 69A OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE L D. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE U S THE LD. COUNSEL HAS FILED PAPER BOOK CONTAINING DETAIL OF INFORMATION AND SUB MISSION FURNISHED BEFORE THE AO AND CIT(A) DURING THE COURSE OF ASSESSMENT AND APPE LLATE PROCEEDING. THE LD. COUNSEL CONTENDED THAT AO HAS NOT GIVEN HIM SUFFICI ENT OPPORTUNITY TO EXPLAIN THE IMPUGNED CASH DEPOSIT OF RS. 18,79,000/-. THE LD. COUNSEL HAS CONTENDED IT WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A) THAT AO HAS NOT GRANTED SUFFICIENT OPPORTUNITY AND ASSESSMENT ORDER WAS PASSED ON 24.02.2016 WITHO UT CONSIDERING THE GENUINE ADVERSE CIRCUMSTANCES THAT CONSULTANT OF THE ASSESS EE COULD NOT ATTEND THE HEARING ON 22.02.2016 BECAUSE OF ATTENDING OF RELIGIOUS CEREMO NY AT OUT STATION. IT IS ALSO SUBMITTED THAT THESE MATERIAL FACTS WERE BROUGHT TO THE NOTICE OF THE AO BEFORE THE DATE OF HEARING I.E. 22.02.2016.IN VIEW OF THE AFOR ESAID CIRCUMSTANCES THE LD. CIT(A) WAS REQUESTED TO CONSIDER THE SUPPORTING MATERIAL A ND EVIDENCES IN VIEW OF INSUFFICIENT OPPORTUNITY PROVIDED BY THE AO TO ADJU DICATE THE ISSUE ON MERIT. 5. ON THE OTHER HAND THE LD. DR HAS SUPPORTED THE O RDER OF LOWER AUTHORITIES. ITA NO. 2231/AHD/2017 A.Y. 2013-14 3 WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATER IAL ON RECORD. THE AO HAS COMPLETED THE ASSESSMENT UNDER SEC. 143(3) ON 26.02 .2016. THE CASH DEPOSIT OF RS. 18,79,000/- IN THE SAVING BANK A/C WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S. 69A OF THE ACT AS THE ASSESSEE HAS FAILED TO SUBSTA NTIATE THE SOURCE OF DEPOSIT WITH SUPPORTING EVIDENCES. WITH THE ASSISTANCE OF THE L D. REPRESENTATIVES WE HAVE GONE THROUGH THE MATERIAL ON RECORD AND IT IS NOTICED TH AT ASSESSEE IN HIS SUBMISSION BEFORE THE LD. CIT(A) HAS PLEADED THAT IT WAS BROUGHT TO T HE NOTICE OF THE AO THAT COUNSEL OF THE ASSESSEE WOULD NOT BE AVAILABLE ON THE DATE OF HEARING FIXED ON 22.02.2016 BECAUSE OF PREOCCUPIED WITH RELIGIOUS CEREMONY AT O UT OF STATION.WITHOUT CONSIDERING THE GENUINE HARDSHIP OF THE ASSESSEE THE ASSESSMENT ORDER WAS FINALIZED ON 26.02.2016 WITHOUT PROVIDING ANY OTHER OPPORTUNITY TO THE ASSE SSEE. AFTER CONSIDERING THE FOREGOING FACTS WE OBSERVE THAT LD. CIT(A) REITERAT ED THE CONTENTIONS OF THE AO WITHOUT CONSIDERING AFORESAID SUBMISSION OF THE ASS ESSEE AND THE CIRCUMSTANCES UNDER WHICH HE WAS NOT ABLE TO ATTEND THE HEARING FIXED O N 22.02.2016. THE ASSESSEE HAS DEMONSTRATED WITH RELEVANT SUPPORTING MATERIAL AS E LABORATED ABOVE THAT THE AO HAS PASSED THE ASSESSMENT ORDER WITHOUT PROVIDING ADEQU ATE OPPORTUNITY. IN THE LIGHT OF THE ABOVE INFIRMITY AND SHORTCOMIN G IN THE DECISION OF THE LD. CIT(A) FOR NOT ADJUDICATING THE ISSUE ON MERIT WITH OUT REBUTTING THE SUBMISSION OF THE ASSESSEE, WE RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE SAME ON MERIT AFTER OFFERING ADEQUATE OPPORTUNITY TO THE AS SESSEE. THEREFORE, APPEAL OF THE ASSESSEE IS ALLOW FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (RAJPAL YADAV) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD: DATED 26/06/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. % / ASSESSEE THIS ORDER PRONOUNCED IN OPEN COURT ON 26/06/2019 ITA NO. 2231/AHD/2017 A.Y. 2013-14 4 3. '( ! )! / CONCERNED CIT 4. )! - / CIT (A) 5. *+, ! ( , ' ( , -.%'% / DR, ITAT, AHMEDABAD 6. ,/ 0 / GUARD FILE. BY ORDER / %& , 1 / - ' ( , -.%'% 2 1.DATE OF DICTATION ON 20.06.2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 20.06.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 24.06.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 24.06.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 26.06.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 26 .06.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER