AI Insights
The case involves Mrs. Simi Surendra Arya, who appealed against the order of the Commissioner of Income Tax (Appeals) - National Faceless Appeal Centre, which confirmed an addition of Rs. 36,00,000 under section 68 of the Income Tax Act, 1961, as unexplained cash credit. The assessee, due to critical health conditions, was unable to attend the hearings or respond to notices, leading to an ex-parte decision against her. The Tribunal noted the procedural lapses and the need for a fair hearing, thus remanding the case back for a fresh assessment.
Appeal Details
Counselvise Citation
[2022] 140 COUNSELVISE.COM (IT) 123549 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-12-2022
Appeal Filed By
Assessee
Order Result
PartlyAllowed
Bench Allotted
G
Next Hearing Date
25-12-2022
Assessment Year
2013-2014
Appeal Filed On
13-09-2022
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI ABY T VARKEY (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) ITA No. 2316/MUM/2022 Assessment Year: 2013-14 Mrs. Simi Surendra Arya, D-402, Mota Nagar, A.K., Road Bhawan Chakala Andheri (E), Mumbai-400069. Vs. ITO Ward 25(1)(2), Room No. 403/406, C-10, Pratyaksh Kar Bhavan Bandra Kurla Complex, Bandra (E). PAN No. ADYPA 1172 G Appellant Respondent Assessee by : Mr. R.S. Sharma, AR Revenue by : Mr. Abi Rama Karthikeyan S., DR Date of Hearing : 26/12/2022 Date of pronouncement : 29/12/2022 ORDER PER OM PRAKASH KANT, AM This appeal has been preferred by the assessee against the order dated 12.07.2022 passed by the Ld. Commissioner of Income- tax (Appeals)-National Faceless Appeal Centre (NFAC), Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2013-14, raising following grounds : 1. Requesting Hon'ble the Income Tax Appellate Tribunal Mumbai bench to afford an opportunity to the assesse to present the case of the assessee before Commissioner of Income Tax Appeal which she could not do on account of she being suffering from Cri health condition. the assesse was not in a state to Check her E-mails, as a result of which notice u/s 250 fixing date of hearing sent to registered email id of assessee went unnoticed. Further, the postal communicati send by the Income tax department or NFAC, hence the matter of CIT (A) was completely left unattended on part of the assesse as she being ignorant on account of her ill health. Since the CIT (A) has wrongly and illegally confirmed addition u/s 68 of Rs 36,00,000 being made By assessing officer ignoring the facts and circumstances of case, The Hon'ble ITAT Mumbai bench is requested to allow assesse a reasonable opportunity of being heard by either pursuing the appeal filed by her before CIT(A back to the assessing officer for fresh consideration. 2. On the facts and in the circumstances of the case and in law the learned assessing officer and CIT Appeal erred in not accepting the fact that above said amount of Rs 36 lacs directly paid by her husband on her behalf and shown as Sundry Creditors in the books and confirmation was submitted before Assessing Officer to this effect. 3. On the facts and in the circumstances of the case and in law the learned assessing officer and CIT Appeal Both have erred in not accepting the fact that property, which was purchased by her was in joint name where she was co owner to the extent 32.55 perce present the case of the assessee before Commissioner of Income Tax Appeal which she could not do on account of she being suffering from Critical Illness (Paralysis). Due to poor health condition. the assesse was not in a state to Check mails, as a result of which notice u/s 250 fixing date of hearing sent to registered email id of assessee went unnoticed. Further, the postal communication was also not send by the Income tax department or NFAC, hence the matter of CIT (A) was completely left unattended on part of the assesse as she being ignorant on account of her ill health. Since the CIT (A) has wrongly and illegally confirmed u/s 68 of Rs 36,00,000 being made By assessing officer ignoring the facts and circumstances of case, The Hon'ble ITAT Mumbai bench is requested to allow assesse a reasonable opportunity of being heard by either pursuing the appeal filed by her before CIT(A) or the case be referred back to the assessing officer for fresh consideration. On the facts and in the circumstances of the case and in law the learned assessing officer and CIT Appeal erred in not accepting the fact that above said amount of Rs 36 lacs directly paid by her husband on her behalf and shown as Sundry Creditors in the books and confirmation was submitted before Assessing Officer to this effect. On the facts and in the circumstances of the case and in law the learned assessing officer and CIT Appeal Both have erred in not accepting the fact that property, which was purchased by her was in joint name where she was co owner to the extent 32.55 percent along with her husband Mrs. Simi Surndra Arya ITA No. 2316/M/2022 2 present the case of the assessee before Commissioner of Income Tax Appeal which she could not do on account of she tical Illness (Paralysis). Due to poor health condition. the assesse was not in a state to Check mails, as a result of which notice u/s 250 fixing date of hearing sent to registered email id of assessee went on was also not send by the Income tax department or NFAC, hence the matter of CIT (A) was completely left unattended on part of the assesse as she being ignorant on account of her ill health. Since the CIT (A) has wrongly and illegally confirmed u/s 68 of Rs 36,00,000 being made By assessing officer ignoring the facts and circumstances of case, The Hon'ble ITAT Mumbai bench is requested to allow assesse a reasonable opportunity of being heard by either pursuing ) or the case be referred back to the assessing officer for fresh consideration. On the facts and in the circumstances of the case and in law the learned assessing officer and CIT Appeal erred in not accepting the fact that above said amount of Rs 36 lacs was directly paid by her husband on her behalf and shown as Sundry Creditors in the books and confirmation was submitted before Assessing Officer to this effect. On the facts and in the circumstances of the case and in law the learned assessing officer and CIT Appeal Both have erred in not accepting the fact that property, which was purchased by her was in joint name where she was co- nt along with her husband having balance share of 67.45 percent accordingly payment of entire consideration was justified. 4. On the facts and in the circumstances of the case and in law the impugned order is bad both on facts and law. 5. On the facts and in the the Ld. Appellate Authority has wrongly and illegally confirmed the order of assessment passed by the Assessing Officer. 2. At the outset, the Ld. Counsel of the assessee submitted that the appeal has been passed ex taking into consideration the submission/arguments on behalf of the assessee. The Ld. Counsel of the assessee also filed a prayer for admission of the following dispute raised in the ground Details of property and respective share of co Payment Details towards cost of property ITRV of Surendra Kumar Arya Prop, M/s Sushant Exports Computation of Income of Surendra Kumar Arya Prop, M/s Sushant Exports Balance Sheet and Profit Explanation for credits in bank A/C of Surendra Kumar Arya Prop, M/s Sushant Exports Bank Statement of Surendra Kumar Arya Prop, M/s Sushant Exports PAN and confirmation Letter Sale Deed having balance share of 67.45 percent accordingly payment of entire consideration was justified. On the facts and in the circumstances of the case and in law the impugned order is bad both on facts and law. On the facts and in the circumstances of the case and the Ld. Appellate Authority has wrongly and illegally confirmed the order of assessment passed by the Assessing At the outset, the Ld. Counsel of the assessee submitted that the appeal has been passed ex-parte qua the assessee without taking into consideration the submission/arguments on behalf of the assessee. The Ld. Counsel of the assessee also filed a prayer for following additional evidence on the issue raised in the ground of appeal : Details of property and respective share of co-owners Payment Details towards cost of property ITRV of Surendra Kumar Arya Prop, M/s Sushant Exports Computation of Income of Surendra Kumar Arya Prop, M/s Sushant Balance Sheet and Profit and Loss Statement (F.Y 12 Explanation for credits in bank A/C of Surendra Kumar Arya Prop, M/s Sushant Exports Bank Statement of Surendra Kumar Arya Prop, M/s Sushant PAN and confirmation Letter Mrs. Simi Surndra Arya ITA No. 2316/M/2022 3 having balance share of 67.45 percent accordingly payment On the facts and in the circumstances of the case and in law the impugned order is bad both on facts and law. circumstances of the case and in law the Ld. Appellate Authority has wrongly and illegally confirmed the order of assessment passed by the Assessing At the outset, the Ld. Counsel of the assessee submitted that arte qua the assessee without taking into consideration the submission/arguments on behalf of the assessee. The Ld. Counsel of the assessee also filed a prayer for additional evidence on the issue-in- owners ITRV of Surendra Kumar Arya Prop, M/s Sushant Exports Computation of Income of Surendra Kumar Arya Prop, M/s Sushant and Loss Statement (F.Y 12-13) Explanation for credits in bank A/C of Surendra Kumar Arya Prop, Bank Statement of Surendra Kumar Arya Prop, M/s Sushant 3. The Ld. Departmental Representati object for admission of the additional evidence being important for adjudication of issue- 4. We have heard rival submission of the parties on the issue dispute and perused the relevant material on record. The findi the Ld. CIT(A) on the issue “6.3.3. However, during the course of these appellate proceedings, in support of Ground of appeal, the assessee has not filed any written submissions or any documentary evidence or even us 250 for hearing to the assessee. Perusal of email delivery report obtained from FACELESS ITBA APPEAL MODULE clearly shows that all the notices u/s 250 for hearing, which were sent to the assessee, were duly The assessee has made absolutely no compliance to any of the notices. Neither any written submissions have been filed, nor any documentary evidence have been submitted in support of the Ground of appeal. 6.3.4. Under the above cir contention raised in the Grounds of appeal that the ledger of Sushant exports and the source of payments of the assessee for the property had been duly submitted to the Ld AO, remains completely unacceptable. The AO has categorica recorded in the assessment order that during assessment proceedings, the assessee was asked by AO to furnish the IT V, Computation, Bank Statement of the loan party. In The Ld. Departmental Representative (DR) did not seriously object for admission of the additional evidence being important for -in-dispute. We have heard rival submission of the parties on the issue dispute and perused the relevant material on record. The findi the Ld. CIT(A) on the issue-in-dispute is reproduced as under: 6.3.3. However, during the course of these appellate proceedings, in support of Ground of appeal, the assessee has not filed any written submissions or any documentary evidence or even any reply, in spite of issuing several notices us 250 for hearing to the assessee. Perusal of email delivery report obtained from FACELESS ITBA APPEAL MODULE clearly shows that all the notices u/s 250 for hearing, which were sent to the assessee, were duly served on the appellant. The assessee has made absolutely no compliance to any of the notices. Neither any written submissions have been filed, nor any documentary evidence have been submitted in support of the Ground of appeal. 6.3.4. Under the above circumstances, the assesee's contention raised in the Grounds of appeal that the ledger of Sushant exports and the source of payments of the assessee for the property had been duly submitted to the Ld AO, remains completely unacceptable. The AO has categorica recorded in the assessment order that during assessment proceedings, the assessee was asked by AO to furnish the IT V, Computation, Bank Statement of the loan party. In Mrs. Simi Surndra Arya ITA No. 2316/M/2022 4 ve (DR) did not seriously object for admission of the additional evidence being important for We have heard rival submission of the parties on the issue-in- dispute and perused the relevant material on record. The finding of dispute is reproduced as under: 6.3.3. However, during the course of these appellate proceedings, in support of Ground of appeal, the assessee has not filed any written submissions or any documentary any reply, in spite of issuing several notices us 250 for hearing to the assessee. Perusal of email delivery report obtained from FACELESS ITBA APPEAL MODULE clearly shows that all the notices u/s 250 for hearing, which served on the appellant. The assessee has made absolutely no compliance to any of the notices. Neither any written submissions have been filed, nor any documentary evidence have been submitted in cumstances, the assesee's contention raised in the Grounds of appeal that the ledger of Sushant exports and the source of payments of the assessee for the property had been duly submitted to the Ld AO, remains completely unacceptable. The AO has categorically recorded in the assessment order that during assessment proceedings, the assessee was asked by AO to furnish the IT- V, Computation, Bank Statement of the loan party. In response, the assessee submitted before AO that the loan of Rs.36,00,000/ creditors and has been credited in the ledger account of M/s Sushant Exports, the proprietorship firm of her husband. However, the assessee failed to furnished the copies of bank statements reflecting the payments of Rs.36.0 for purchase of the property. Besides, confirmation of her husband had also not been filed by the assessee before AQ. Not only these documents were not filed before AO, but even during these appellate proceedings, such documents are not submittrd. Under these circumstances, AO has recorded his categorical concluding findings that in the absence of relevant documentary evidences, merely reflecting a credit entry in the liability side of the Balance Sheet does not established the source of funds. 6.3.5. Consequently, the AO's observation are found to be absolutely in order that it was the primary onus of the assessee to prove the source of funds received to the satisfaction to the AO, however, the said onus had not been discharged by the assessee. making addition of Rs.36,00,000/ assessee, as unexplained cash credit u/s 68 of the I.T.Act, 1961, is upheld. 4.1 It is evident from the above finding of the Ld. CIT(A) that issue in-dispute not had been decided on merit consideration, submission of the assessee. The Ld. Counsel submitted, the assessee being new to procedure of issuing notice on response, the assessee submitted before AO that the loan of Rs.36,00,000/- was shown by the assessee in the sundry creditors and has been credited in the ledger account of M/s Sushant Exports, the proprietorship firm of her husband. However, the assessee failed to furnished the copies of bank statements reflecting the payments of Rs.36.00,000/ for purchase of the property. Besides, confirmation of her husband had also not been filed by the assessee before AQ. Not only these documents were not filed before AO, but even during these appellate proceedings, such documents are not trd. Under these circumstances, AO has recorded his categorical concluding findings that in the absence of relevant documentary evidences, merely reflecting a credit entry in the liability side of the Balance Sheet does not established the source of funds. 6.3.5. Consequently, the AO's observation are found to be absolutely in order that it was the primary onus of the assessee to prove the source of funds received to the satisfaction to the AO, however, the said onus had not been discharged by the assessee. Consequently, the AO's action of making addition of Rs.36,00,000/-, to the total Income of the assessee, as unexplained cash credit u/s 68 of the I.T.Act, 1961, is upheld.” It is evident from the above finding of the Ld. CIT(A) that issue ot had been decided on merit, after taking into ion, submission of the assessee. The Ld. Counsel submitted, the assessee being new to procedure of issuing notice on Mrs. Simi Surndra Arya ITA No. 2316/M/2022 5 response, the assessee submitted before AO that the loan of n by the assessee in the sundry creditors and has been credited in the ledger account of M/s Sushant Exports, the proprietorship firm of her husband. However, the assessee failed to furnished the copies of bank 0,000/- made for purchase of the property. Besides, confirmation of her husband had also not been filed by the assessee before AQ. Not only these documents were not filed before AO, but even during these appellate proceedings, such documents are not trd. Under these circumstances, AO has recorded his categorical concluding findings that in the absence of relevant documentary evidences, merely reflecting a credit entry in the liability side of the Balance Sheet does not established the 6.3.5. Consequently, the AO's observation are found to be absolutely in order that it was the primary onus of the assessee to prove the source of funds received to the satisfaction to the AO, however, the said onus had not been Consequently, the AO's action of , to the total Income of the assessee, as unexplained cash credit u/s 68 of the I.T.Act, It is evident from the above finding of the Ld. CIT(A) that issue- fter taking into ion, submission of the assessee. The Ld. Counsel submitted, the assessee being new to procedure of issuing notice on ITBP portal and therefore, could not file response to the notice issued by the Ld. CIT(A). T additional evidence which are having impact on the adjudication of the issue-in-dispute and therefore, we admit the same. Since, the issue-in-dispute has not been decided by the Ld. CIT(A) on merit and therefore, we fee file of the Ld. CIT(A) for deciding afresh after considering the additional evidence along with other document which would on behalf of the assessee. The Ld. Counsel appearing on behal the assessee has given undertaking extended by the assessee in disposal of the AO. Accordingly, the grounds raised by the assessee are allowed for statistical purposes. 5. In the result, the appeal statistical purposes. Order pronounced in the open Court/under Rule 34(4) of the ITAT Rules, 1963 on Sd/- (ABY T VARKEY JUDICIAL MEMBER Mumbai; Dated: 29/12/2022 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. ITBP portal and therefore, could not file response to the notice . CIT(A). The Ld. Counsel of the assessee has filed additional evidence which are having impact on the adjudication of dispute and therefore, we admit the same. Since, the dispute has not been decided by the Ld. CIT(A) on merit erefore, we feel appropriate to restore this issue file of the Ld. CIT(A) for deciding afresh after considering the additional evidence along with other document which would on behalf of the assessee. The Ld. Counsel appearing on behal the assessee has given undertaking that due co-operation shall be extended by the assessee in disposal of the matter before the Ld. . Accordingly, the grounds raised by the assessee are allowed for In the result, the appeal filed by the assessee is allowed for Order pronounced in the open Court/under Rule 34(4) of the ITAT Rules, 1963 on 29/12/2022. Sd/ ABY T VARKEY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : Mrs. Simi Surndra Arya ITA No. 2316/M/2022 6 ITBP portal and therefore, could not file response to the notice he Ld. Counsel of the assessee has filed additional evidence which are having impact on the adjudication of dispute and therefore, we admit the same. Since, the dispute has not been decided by the Ld. CIT(A) on merit appropriate to restore this issue back to the file of the Ld. CIT(A) for deciding afresh after considering the additional evidence along with other document which would be filed on behalf of the assessee. The Ld. Counsel appearing on behalf of operation shall be matter before the Ld. . Accordingly, the grounds raised by the assessee are allowed for filed by the assessee is allowed for Order pronounced in the open Court/under Rule 34(4) of Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Sr. Private Secretary) ITAT, Mumbai Mrs. Simi Surndra Arya ITA No. 2316/M/2022 7 BY ORDER, (Sr. Private Secretary) ITAT, Mumbai
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