Shri Nitinkumar Ramshanker Vyas, Vadodara V. The ITO Ward-1, Junagadh, Junagadh

ITA 230/RJT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2784 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-04-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 06-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV RANJAN
• Keywords: Reopening of assessment; Principle of natural justice; Corroborative evidences; Onus to prove
• Section: 147; 148; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted through E-Court at Ahmedabad) BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER & SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER I .T .A . N o .2 3 0 /R j t /2 02 3 ( A s se ss m e nt Y e a r : 20 11- 12 ) N it in k u ma r R a m s h a nk e r V ya s , G ur u k r u pa R oa d l in e s, Sa t ya m Sh iv a m S u n da r a m A r c a d e , N r . H a n u m an ji T e m p le , N . H . No . 8, V a g ho di ya C h ow kd i, V a d o da r a- 39 00 1 9 Vs . Th e I nc o m e Ta x O f fic er , Wa r d- 1, J u na g a d h [ P A N N o . AG N P V 5 21 1B ] (Appellant) .. (Respondent) Appellant by : Shri Mehul Ranpura, A.R. Respondent by: Shri Sanjeev Ranjan, Sr. DR D a t e of H ea r i ng 10.04.2024 D a t e of P r o no u n ce me nt 26.04.2024 O R D E R PER SIDDHARTHA NAUTIYAL, JM: This appeal has been filed by the assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals), (in short “Ld. CIT(A)”), National Faceless Appeal Centre (in short “NFAC”), Delhi in DIN & Order No. ITBA/NFAC/S/250/2023-24/1052867625(1) vide order dated 16.05.2023 passed for Assessment Year 2011-12. 2. The assessee has taken the following grounds of appeals:- “1.0 Ld. Commissioner of Income tax (Appeals), National Faceless Appeal Centre, has erred in law and facts in dismissing grounds of appeal in violation of principles of natural justice; 1.1 Ld. Commissioner of Income tax (Appeals), National Faceless Appeal Centre, has misplaced the judicial pronouncements while deciding the ground challenging the validity of proceedings under Section 147 of the Act; ITA No.230/Rjt/2023 Nitinkumar Ramshanker Vyas vs. ITO Asst.Year –2011-12 - 2 - 1.2 Ld. Commissioner of Income tax (Appeals), National Faceless Appeal Centre, has dismissed the ground related to validity of proceedings as such it is prayed that the assessment grounded on in-valid proceedings may kindly be quashed; 2.0 Ld. Commissioner of Income tax (Appeals), National Faceless Appeal Centre, has erred in law and facts in confirming the addition of Rs. 25,25,220/-, being alleged unexplained cash deposits in bank; 2.1 Ld. Commissioner of Income tax (Appeals), National Faceless Appeal Centre, has misplaced the judicial pronouncements while confirming the addition of Rs. 25,25,220/-, which may kindly be deleted and justice be done;” 3. The brief facts of the case are that the assessee did not file his return of income for the A.Y.2011-12. The Department came to notice that during the relevant previous year, the assessee has deposited aggregate cash of Rs.25.25,220/- in his saving hank account maintained with The Junagadh Commercial Co. Op. Bank Ltd. As per the Ld. Assessing Officer, since the assessee did not file his return of income for the year under consideration, the source of aggregate cash of Rs.25,25,220/- deposited during the relevant previous year in his saving bank account maintained with the Junagadh Commercial Co. Op. Bank Ltd remained unexplained. In view of these facts, the case was reopened under Section 147 of the I.T. Act after recording the reasons regarding income escaping assessment within the meaning of Section 147 of the I.T. Act. 1961 and obtaining the approval of the Pr. Commissioner of Income tax, Rajkot for reopening of assessment under Section147 of the I.T. Act, 1961. Notice under Section 148 of the I.T. Act dated 24.03.2018 was issued and duly served upon the assessee. In reply A.R. of the assessee requested for extension of time limit for filing written submission. Thereafter another e-notice under Section 142(1) of the I.T. Act/questionnaire dated 12.06.2018 was issued and served upon the assessee. However, the same was also remained unanswered. Thereafter several e-notices under Section 142(1) of the Act and show cause notices were issued and served upon the assessee ITA No.230/Rjt/2023 Nitinkumar Ramshanker Vyas vs. ITO Asst.Year –2011-12 - 3 - from time to time, which also remained unanswered. In reply to final show cause notice issued by the Ld. Assessing Officer, the A.R. of the assessee vide its letter dated 18.10.2018 and 30.10.2018 again requested for adjournment. From the above facts, it was observed by the Ld. Assessing Officer that ample opportunities were given to the assessee, however, the assessee did not file any details. The assessee has not responded to any of the show-cause notices which were issued under Section 142(1) of the I.T. Act and accordingly, the Ld. Assessing Officer finalised the assessment to the best of his judgement, on the basis of materials available on record. As per AIR information, the Ld. Assessing Officer observed that during the relevant previous year, the assessee has deposited aggregate cash of Rs.25,25,220/- in his saving bank account maintained with The Junagadh Commercial Co. Op Bank Ltd. Keshod Branch. However, the assessee could not furnish any details/explanation in this regard. In absence of details, the source of aggregate cash of Rs.25,25,220/- deposited during the relevant previous year in his saving bank account maintained with the Junagadh Commercial Co. Op Bank Ltd, Keshod Branch remained unexplained. The onus to prove the source of aggregate cash of Rs.25,25,220/- deposited during the relevant previous year in his saving bank account was not discharged by the assessee. Since the assessee has not furnished any details with regards to aforesaid cash deposits, the same was treated by the Ld. Assessing Officer as income from unexplained sources. Accordingly, an addition of Rs. 25,25,220/- was made to the total income of the assessee. 4. In appeal before Ld. CIT(Appeals), the assessee challenged the validity of re-opening assessment of the assessee under Section 147 of the Act. Further, on merits, the assessee submitted that the assessee had shifted to Vadodara in the year 2008 and he required funds for purchasing a tenement and such fund ITA No.230/Rjt/2023 Nitinkumar Ramshanker Vyas vs. ITO Asst.Year –2011-12 - 4 - was generated by way of: (i) sale of joint family properties; (ii) securing gold loan; and (iii) from portion of family fund. Regarding sale of Joint Family Properties, the assessee submitted before Ld. CIT(Appeals) that the assessee was co-owner of joint family properties which were sold for a consideration of Rs. 4,90,000/- each, The copies of sale deed were also furnished during the course of appellate proceedings. The assessee submitted that the other joint holders of family property had relinquished their consideration in favour of appellant by sworn-in-affidavit. The copy of sworn-in-affidavit was also reproduced before Ld. CIT(Appeals). Secondly, it was submitted that the assessee availed two gold loans of Rs. 6,33,000/- in the name of his nephew and Rs. 6,27,000/- in the name of self from Junagadh Commercial Co- operative Bank Limited, Keshod Branch, which were simultaneously disbursed on 11.01.2011. The assessee submitted that the above gold loans availed by the assessee were withdrawn in cash on 11.01.2011 and the same were utilized for depositing the cash in the bank account. The assessee also submitted copies of bank loan statements before Ld. CIT(Appeals). Thirdly, the assessee submitted that the balance amount was deposited out of old accumulated funds with the assessee and his wife. 5. However, Ld. CIT(Appeals) did not take into consideration any of the submissions filed by the assessee during the course of appellate proceeding and summarily dismissed the appeal of the assessee by relying on the decision rendered by Pune tribunal in the case of Minakshi Builders in ITA No. 447- 452/Pune/2020. 6. Before us, the counsel for the assessee submitted that the Ld. CIT(Appeals) did not even discuss the explanation given by the assessee with respect to the source of cash deposited by the assessee in his bank account. The ITA No.230/Rjt/2023 Nitinkumar Ramshanker Vyas vs. ITO Asst.Year –2011-12 - 5 - Ld. CIT(Appeals) passed a non-speaking order in which he only reproduced the entire judgement in the case of Minakshi Builders supra, and did not even discuss as to how the above decision was relevant to the assessee’s set of facts. Further, Ld. CIT(Appeals) also did not discuss the detailed explanation/submissions given by the assessee during the course of appellate proceedings, in support of the source of cash deposited in the bank account. Accordingly, the counsel for the assessee submitted that the order passed by Ld. CIT(Appeals), is a non-speaking order, which did not take into consideration the written submissions and the supporting evidence filed by the assessee in the course of appellate proceedings in support of the source of cash deposited in the assessee’s bank account held with Keshod Branch. Accordingly, the counsel for the assessee submitted that looking into the contents of the order passed by Ld. CIT(Appeals), it is a fit case that the matter may be restored to the file of Ld. CIT(Appeals) for de-novo consideration, and to pass an appropriate order in accordance with law, after taking into consideration the written submissions and supporting evidences filed by the assessee in support of the cash which was deposited in the bank account, which was added to the income of the assessee by the Ld. assessing officer. 7. In response, DR placed reliance on the observation made by Ld. CIT(Appeals) in the appellate order. 8. We have heard the rival contentions and perused the material on record. On going through the contents of the order passed by Ld. CIT(Appeals), we observe that the Ld. CIT(Appeals) has in essence passed a non-speaking order, in which he has primarily reproduced the decision in the case of Minakshi builders, Pune Tribunal and while passing the order, the Ld. CIT(Appeals) did not at all taken into consideration the written submissions and the supporting ITA No.230/Rjt/2023 Nitinkumar Ramshanker Vyas vs. ITO Asst.Year –2011-12 - 6 - evidences filed by the assessee during the course of appellate proceedings in support of the source of the cash deposited in the bank account at Keshod Branch. Accordingly, looking into the instant facts, in the interest of justice, the matter is being restored to the file of Ld. CIT(Appeals) with a direction to pass fresh order after taking into consideration the written submissions as well as supporting evidences filed by the assessee in support of the source of cash deposited in the bank account held with Keshod Branch, and pass an order in accordance with the law, after giving due opportunity of hearing to the assessee. 9. In the result, the appeal of the assessee is allowed for statistical purposes. This Order pronounced in Open Court on 26/04/2024 Sd/- Sd/- (ANNAPURNA GUPTA) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 26/04/2024 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, राजोकट / DR, ITAT, Rajkot 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार Dy./Asstt.Registrar) आयकर अपील य अ धकरण, राजोकट / ITAT, Rajkot