Anup Kumar Agrawal, Raipur, Raipur V. Income Tax Officer-2(1), Raipur, Raipur

ITA 277/RPR/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 1328 (ITAT-RAIPUR)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 20-02-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 09-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATYA PRAKASH SHARMA
• Assessee Lawyers: R. B. DOSHI
• Keywords: Set aside; Unexplained cash credit
• Section: 143(3); 142(1); 143(2); 250; 251; 246A

Judgement Text

आयकर अपीलȣय अͬधकरण, रायप ु र Ûयायपीठ, रायप ु र IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR Įी रͪवश स ू द, ÛयाǓयक सदèय एवं Įी अǽण खोड़ͪपया, लेखा सदèय के सम¢ । BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM (ITA No.277/RPR/2023) (Assessment Year:2015-16) आदेश / O R D E R Per Arun Khodpia, AM: The present appeal is filed by the assessee against the order of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), (in short ‘CIT(A)’) dated 28.06.2023 u/s 250 of the Income Tax Act, 1961 (In short 'The Act') for the assessment year 2015-16, which in turn arises from the order dated 13.11.2017, u/s 143(3) of Act by the Income Tax Officer, Ward-2(1), Raipur, (In short ‘The AO’). 2. The grounds of appeal raised by the assessee are as under: 1. Ld. CIT(A) erred in confirming addition of Rs. 10,26,911/- made by AO on account of capital introduced by the assessee treating it to be Anup Kumar Agrawal, Shop No. 35, Hira Arcade, Pandri, Raipur, (C.G.) Income Tax Officer-2(1), Aayakar Bhawan, Civil Lines, Raipur, (C.G.) PAN: AFHPA5031R (अपीलाथȸ/Appellant) . . (Ĥ×यथȸ / Respondent) Ǔनधा[ǐरती कȧ ओर से /Assessee by : Shri R.B. Doshi, CA राजèव कȧ ओर से /Revenue by : Shri Satya Prakash Sharma, Sr. DR स ु नवाई कȧ तारȣख/ Date of Hearing : 21.02.2024 घोषणा कȧ तारȣख/Date of Pronouncement : 19.03.2024 ITA No.277/RPR/2023 Anup Kumar Agrawal 2 unexplained cash credit u/s 68. The addition made by AO and confirmed by Ld. CIT(A) is arbitrary and not justified. 2. Ld. CIT(A) erred in confirming addition of Rs. 52,86,164/- made by the AO invoking sec. 41(1) on account of outstanding balances of creditors. The addition made by AO and confirmed by Ld. CIT(A) is arbitrary, baseless and not justified. 3. The appellant reserves the right to amend, modify or add any of the ground/s of appeal. 3. The brief facts of the case are that the assessee is an individual engaged in the business of iron ore in the name of Trinity Enterprises. Return of the Income for the AY 2015-16 was file by the assessee electronically on 11.01.2016 declaring a total income of Rs. 8,77,040/-. The case of the assessee was subsequently, selected for scrutiny under CASS. Statutory notices were issued u/s 143(2) and 142(1) and the case was fixed for hearing. Certain issues were raised by the Ld AO and the assessee was show caused for explanations. However, the explanations and submissions of assessee were found to be insufficient and unconvincing by the Ld AO, thus she made the two additions u/s 68 for Rs. 10,26,911/- and u/s 41(1) for Rs. 52,86,164/-. In aggregate Rs. 63,13,075/- . 4. Being aggrieved with such additions the assessee preferred an appeal before the Ld CIT(A), however, during the appellate proceedings before the Ld CIT(A) since the assessee was unable put up an appearance nor has filed any reply or submission, therefore the Ld CIT(A) had discussed the issues reiterating the facts available before him from the order of Ld AO, accepting the action of the Ld AO, in result dismissed the appeal of the assessee. ITA No.277/RPR/2023 Anup Kumar Agrawal 3 5. Aggrieved by the said order of Ld CIT(A), the assessee carried the matter before us for adjudication of the same. 6. At the outset Ld AR of the assessee, assailed that the issues are being decide by the Ld. CIT(A), summarily by accepting the verdict of the Ld AO, though it is mentioned by the Ld CIT(A) that the case is being decided on merit, but the issues have not been dealt with by any independent application of mined. Under such circumstances, it was the prayer that the matter shall be remitted back to the files of Ld CIT(A) for fresh adjudication following the mandate of law and existent jurisprudence. 7. Ld. Sr. DR on the other hand vehemently relied on the order of the Ld CIT(A). 8. We have considered the rival contentions and perused the material available on records. In present case admittedly the assessee was non- compliant before the Ld CIT(A). However, the issues involved requires to be looked into on their merits. It was the allegation of the Ld AR and rightly so that, though the Ld CIT(A) has mentioned the case is being decided on merits, but the order of Ld CIT(A) was more of reproduction of the order of Ld AO, nothing transpires from the impugned order that he had decided the issues with independent application of mind. Since the appeal of the assessee was not decided on merits by the Ld. CIT(A) and in such cases, we are consistently ITA No.277/RPR/2023 Anup Kumar Agrawal 4 taking a view that such cases should be restored back to the files of Ld. CIT(A), therefore, we, in absence of any distinguishable features in the present case, without going into the merits of the case are of the opinion to restore the issues raised in the present appeal back to the files of Ld. CIT(A) for adjudicating the same afresh, with affording reasonable opportunity of being heard to the assessee, which the assessee shall comply in most diligent manner without any fail. The assessee will be at liberty to submit necessary explanations and submission in the set aside proceedings. 9. Our aforesaid view is duly supported by the principle of law laid drawn by Hon'ble Mumbai High Court in the case of CIT vs. Premkumar Arjundas Luthra (HUF) reported in [2016] 240 taxman 133, wherein Hon'ble Bombay High Court has held as under: “............It is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(l)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it dear that while considering the appeal, the CTT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from ITA No.277/RPR/2023 Anup Kumar Agrawal 5 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CTT(A) is co-terminus with that of the Assessing Officer i.e. he can do al that Assessing Officer could do. Therefore, just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CTT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply dear from the Section 251(l)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to at the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act.” 10. In view of aforesaid observations of the Hon’ble Bombay High Court, in absence of deliberation on the issues on its merits before the Ld. CIT(A) based on material available on record, in the interest of justice, we find it appropriate to restore the present appeal back to the files of Ld. CIT(A) for fresh adjudication. 11. In the result, appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 19 /03/2024. Sd/- (RAVISH SOOD) Sd/- (ARUN KHODPIA) ÛयाǓयक सदèय / JUDICIAL MEMBER लेखा सदèय / ACCOUNTANT MEMBER रायप ु र/Raipur; Ǒदनांक Dated 19/03/2024 Vaibhav Shrivastav ITA No.277/RPR/2023 Anup Kumar Agrawal 6 आदेश कȧ ĤǓतͧलͪप अĒेͪषत/Copy of the Order forwarded to : आदेशान ु सार/ BY ORDER, // True Copy // (Assistant Registrar) आयकर अपीलȣय अͬधकरण, रायप ु र/ITAT, Raipur 1. अपीलाथȸ / The Appellant- 2. Ĥ×यथȸ / The Respondent- 3. आयकर आयुƅ(अपील) / The CIT(A), 4. The Pr. CIT -1, Raipur, (C.G.) 5. िवभागीय Ůितिनिध, आयकर अपीलीय अिधकरण, रायप ु र/ DR, ITAT, Raipur 6. गाड[ फाईल / Guard file.