Bhaskar Shrimant Lakhadive, Latur V. Income-tax Officer,

ITA 2676/PUN/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8587 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-04-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 28-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Keywords: Gift; Income from undisclosed sources; Principle of natural justice; Additional evidence; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.2676/PUN/2016 / ASSESSMENT YEAR : 2009-10 MR. BHASKAR SHRIMANT LAKHADIVE, AT POST PAKHARSANGVI, TALUKA & DISTRICT-LATUR. PIN-413 512 PAN : ADVPL0887E ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD-3(3), LATUR. / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI SANJEEV GHEI / DATE OF HEARING : 08.04.2019 / DATE OF PRONOUNCEMENT : 08.04.2019 ! / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF THE LD.CIT(APPEALS)-2, AURANGABAD DATED 05.07.2016 FOR THE ASS ESSMENT YEAR 2009-10 AS PER THE FOLLOWING GROUNDS OF APPEAL ON RECORD: 1. THE LEARNED ITO, WARD 3(3), LATUR (HEREINAFTER R EFERRED TO AS LEARNED AO) ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.13,73,329/- U/S.56 OF THE OF THE INCOME TAX ACT, 1961 (HEREINAF TER REFERRED TO AS 'THE ACT') ITA, 1961 AS INCOME FROM UNDISCLOSED SOURCES AND THE LEARNED CIT(A)-2, AURANGABAD ERRED IN AFFIRMING THE ADDITIO N AS UNEXPLAINED MONEY. 2 ITA NO. 2676/PUN/2016 A.Y.2009-10 2. THE LEARNED CIT(A)-2 AND THE LEARNED AO ERRED IN NOT APPRECIATING THE FACT THAT THE CASH DEPOSITS WERE OUT OF ADVANCES RE CEIVED FOR PROPOSED SALE OF PLOT. 3. THE LEARNED CIT(A)-2 ERRED IN LAW AND ON FACTS I N HOLDING THAT THE CONFIRMATIONS SUBMITTED BY THE APPELLANT ARE NOT BO NA-FIDE. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 2. AT THE OUTSET, WE NOTICE THAT THE PRESENT APPEAL IS TIME BARRED BY 68 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT ALONG WITH CONDONAT ION OF DELAY PETITION. WE HAVE GONE THROUGH THE CONDONATION PETITION A S WELL AS THE AFFIDAVIT AND HAVE FOUND THAT REASONS SPECIFIED THEREIN ARE JUSTIFIED AND THAT DELAY CANNOT BE ATTRIBUTED TO THE DELIBERATE CONDUCT OF THE ASSESSEE NEITHER THROUGH INTENTION NOR THROUGH ACTION. THE REASONS FOR D ELAY IN FILING THE APPEAL LATE WERE BEYOND THE CONTROL OF THE ASSESSEE AND EVEN THE LD. DR STATED THAT HE HAS NO OBJECTION, IF THE DELAY IS CONDONED. IN VIEW OF THE MATTER, WE CONDONE THE DELAY AND PROCEED TO HEAR THE APPEAL ON MERITS. 3. THE BRIEF FACTS IN THIS CASE ARE THAT THE ASSESSEE, A N INDIVIDUAL HAD FILED RETURN OF INCOME ON 31.03.2010 DECLARING AN INCOME OF RS.2,97 ,730/-. THE RETURN WAS PROCESSED U/S.143(1) OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS 'THE ACT') ON 23.09.2010 AND IT WAS SELEC TED FOR SCRUTINY UNDER CASS. ACCORDINGLY, NOTICE U/S.143(2) WAS ISSUED ON THE ASSE SSEE ON 19.08.2010 AND SERVED ON THE ASSESSEE. DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAD ASKED THE ASSESSEE TO EXPLAIN THE SOURCES OF CASH DEPOSITS TO THE TUNE OF RS.32,00,000/- MA DE IN THE BANK ACCOUNT DURING THE F.Y.2008-09. THE AR OF THE ASSESSEE W AS REQUESTED TO FURNISH THE CONFIRMATION LETTERS FROM THE PERSONS FROM WHOM THE ADVANCES AND UNSECURED LOANS WERE OBTAINED ' AND ALSO TO PROVE THE GENUINENESS AND CREDITWORTHINESS IN RESPECT OF , THE GIFT RECEIVED FROM HIS WIFE . THE AR OF THE ASSESSEE WAS UNABLE TO PRODUCE , ANY DOCUMENTARY EVIDENCE IN RESPECT OF THE 3 ITA NO. 2676/PUN/2016 A.Y.2009-10 ADVANCES, UNSECURED LOANS AND GIFTS. SINCE THE ASSESSEE HAD FAILED TO PROVE THE SOURCES OF CASH DEPOSITS MADE IN THE BANK , THE ASSESSING OFFICER GAVE CREDIT FOR RS . 18,26 , 671/ - WHICH WAS HELD AS EXPLAINED AND ADDED THE BALANCE OF RS.13,76,329/- AS INCOME FROM UNDISCLOSED SOURCES AND AD DED TO THE TOTAL INCOME OF THE ASSESSEE U/S.56 OF THE ACT. 4. THAT ON PERUSAL OF THE ORDER OF LD. CIT(APPEALS), WE FIND THAT IT IS AN EX- PARTE ORDER PASSED BY HIM BASED ON THE MATERIALS AVAILABLE ON RECORD. THIS IS DEMONSTRATED FROM PARA 5 OF THE LD.CIT(APPEALS)S ORDER. W HEN WE REVERT TO THE ASSESSMENT ORDER, WE FIND THAT THE ASSESSING OFFICER P ASSED ASSESSMENT ORDER U/S.143(3) OF THE ACT, HOWEVER, NO DOCUMENTARY EV IDENCES REGARDING SOURCES OF CASH DEPOSITS MADE IN THE BANK ACCOUNT WERE FILED BEFORE THE ASSESSING OFFICER NOR ANY EVIDENCES WERE PROVIDED IN ORDER TO PROVE THE GENUINENESS AND THE SOURCES OF THE SAID CASH DEPOSITS. 5. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE SU BMITTED THAT THEY HAVE PROCURED RELEVANT DOCUMENTARY EVIDENCES WITH REGA RD TO THE MERITS OF THE CASE AND PRAYED THAT THE MATTER MAY BE RESTORED BAC K TO THE FILE OF THE ASSESSING OFFICER WHEREIN THE ASSESSEE WOULD SUBMIT THESE ADDITIONAL EVIDENCES BEFORE THE ASSESSING OFFICER IN SUPPORT OF THE CA SE ON MERITS AND THE ASSESSING OFFICER MAY ADJUDICATE THE SAME AFTER PROVIDING R EASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. THE LD. DR CONCEDED TO THE REQUEST OF THE LD. AR OF THE ASSESSEE IN THE INTEREST OF JUSTICE THAT THE MATTER MAY BE PROPERLY AD JUDICATED IN THE LIGHT OF NEW EVIDENCES PROVIDED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER . 7. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE R IVAL CONTENTIONS. WE HAVE ALSO ANALYSED THE FACTS AND CIRCUMSTANCES IN THIS C ASE. WE OBSERVE THAT 4 ITA NO. 2676/PUN/2016 A.Y.2009-10 AS PER RECORDS, THE ASSESSMENT ORDER WAS PASSED U/S.1 43(3) OF THE ACT WHEREIN THE ADDITIONS WERE MADE. THERE WERE CERTAIN CONFI RMATIONS FILED BY THE ASSESSEE EVEN BEFORE THE LD. ASSESSING OFFICER WHICH W ERE NOT ACCEPTED BY THE ASSESSING OFFICER AS IS EVIDENT FROM PARA 7 OF THE LD. CIT(APPEALS)S ORDER. BEFORE THE LD. CIT(APPEALS), THE ASSESSEE HAS NOT APPEAR ED AND AN EX-PARTE ORDER WAS PASSED. THE LD. CIT(APPEALS) OBSERVED BASED ON MATERIALS AVAILABLE ON RECORDS THAT IT IS NOT CONCLUSIVELY PROVED REGARDING THE SOURCES OF CASH DEPOSITS IN THE BANK ACCOUNT. NEITHER ANY DOCUMENTARY E VIDENCES WERE PROVIDED BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD. CIT(APPEA LS). HOWEVER, BEFORE US, THE LD. AR OF THE ASSESSEE STATED THAT HE H AS PROCURED RELEVANT DOCUMENTARY EVIDENCES AND IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPE R ADJUDICATION IN THE LIGHT OF THESE ADDITIONAL EVIDENCES. 8. TAKING THE TOTALITY OF FACTS AND CIRCUMSTANCES INTO CON SIDERATION, WE ADMIT THE PRAYER OF THE LD. AR AND THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) AND RESTORE THE MATTER BACK TO THE FILE OF TH E ASSESSING OFFICER DIRECTING THE LD. AR OF THE ASSESSEE TO APPEAR BEFORE THE ASSESSING OFFICER WITH RELEVANT DOCUMENTARY EVIDENCES. THE ASSESSING OFFICER SHA LL ADJUDICATE THE MATTER IN COMPLIANCE WITH THE PRINCIPLES OF NATURAL JUSTICE. W ITH THESE OBSERVATIONS, WE ALLOW THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURP OSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED ON 08TH DAY OF APRIL, 2019. SD/- SD/- D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 08 TH APRIL, 2019. SB 5 ITA NO. 2676/PUN/2016 A.Y.2009-10 !'#$%&'&$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-2, AURANGABAD. 4. THE PR.CIT-2, AURANGABAD. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, A BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 6 ITA NO. 2676/PUN/2016 A.Y.2009-10 DATE 1 DRAFT DICTATED ON 0 8 .0 4 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 08 .0 4 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER