Shri Gulzar Kasambhai Khira, Jamnagar V. The Income Tax Officer, Ward-3(2), Jamnagar

ITA 283/RJT/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8579 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RATHI
• Assessee Lawyers: MJ RANPURA
• Keywords: Additional evidence; Corroborative evidences; Set aside
• Section: 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) [THROUGH VIRTUAL COURT] ITA. NO: 283/RJT/2018 (ASSESSMENT YEARS: 2009-10) SHRI GULZAR KASAMBHAI KHIRA MAHARAJA SOCIETY, SULEKHA MASJID, ROAD NO. 5, OUTSIDE KALAVAD GATE, JAMNAGAR PAN NO. AQJPK4166C V/S THE INCOME-TAX OFFICER, WARD-3/(2), JAMNAGAR (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.J. RANPURA, A.R. RESPONDENT BY : SHRI S. S. RATHI, SR. D.R. ( )/ ORDER DATE OF HEARING : 10 -08-2021 DATE OF PRONOUNCEMENT : 12 -08-2021 PER MAHAVIR PRASAD, J.M. 1. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (HEREINAFTER CALLED CIT(A)) ORDER NO. CIT(A)- ITA NO. 283/RJT/2018 . A.Y. 2009-10 2 JAM/277/2016-17 ORDER DATED 23/05/2018 ARISING OUT OF ASSESSMENT ORDER DATED 18.10.2016. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-2, RAJKOT [CIT(A)] ERRED ON FACTS AS ALSO IN LAW IN RETAINING CONFIRMING ADDITION OF RS. 11,46,570/- MADE BY THE AO ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT HELD WITH ICICI BANK LTD. THE ADDITION CONFIRMED IS IN TOTAL DISREGARDS TO THE APPELLANT'S SUBMISSION AND IS UNJUSTIFIED AND MAY KINDLY BE DELETED. 3.0 YOUR HONOR'S APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, OR WITHDRAW ANY OR MORE GROUNDS OF APPEAL ON OR BEFORE THE HEARING OF APPEAL. 2. FACTS OF THE CASE ARE THAT AS PER THE ITS DATA AVAILABLE WITH THIS OFFICE, IT IS SEEN THAT THE ASSESSEE HAD DEPOSITED RS. 11,46,570/- BY CASH IN HIS SAVING BANK ACCOUNT HELD WITH ICICI BANK LTD,, DURING THE COURSE OF INQUIRY THE ASSESSEE HAD REQUESTED TO FURNISH THE SOURCE OF INCOME FROM WHICH THE ABOVE AMOUNT HAS BEEN DEPOSITED IN CASH ALONGWITH WITH SUPPORTING EVIDENCE. HOWEVER, THE ASSESSEE HAD NOT FURNISHED ANY INFORMATION. ACCORDINGLY, THE ASSESSMENT WAS RE-OPENED BY ISSUED NOTICE U/S.148 OF THE ACT ON 29/03/2016, AFTER RECORDING REASONS. NOTICE U/S 148 WAS ISSUED AND DUTY SERVED UPON THE ASSESSEE. IN RESPONSE TO NOTICE U/S. 148 OF THE ACT, THE ASESSEE HAS NEITHER FILED THE RETURN OF INCOME NOR SUBMITTED ANY WRITTEN REPLY IN RESPONSE TO NOTICE ISSUED U/S. 148 OF THE ACT. ITA NO. 283/RJT/2018 . A.Y. 2009-10 3 3. SINCE ASSESSEE DID NOT FILE ANY DETAIL BEFORE THE LD. A.O. THEREFORE, LD. A.O. PASSED AN EX-PARTE ORDER AND MADE ADDITION OF RS. 11,46,570/- UNDER SECTION 69 OF THE INCOME TAX ACT. 4. AGAINST THE SAID ORDER, ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) AND FILED ADDITIONAL EVIDENCES BEFORE THE LD. CIT(A) BUT LD. CIT(A) DID NOT ADMIT THOSE EVIDENCES ON THE REASON THAT APPLICATION UNDER RULE 46A OF THE ACT HAS NOT BEEN FILED ON BEHALF OF THE ASSESSEE. AND IN THE ABSENCE OF THAT APPLICATION UNDER RULE 46A, LD. CIT(A) CONFIRMED ADDITION MADE BY THE LD. A.O. 5. NOW ASSESSEE HAS COME BEFORE US BY WAY OF SECOND STATUTORY APPEAL. 6. WE HAVE GONE THROUGH THE IMPUGNED ORDER AND HEARD BOTH THE PARTIES. LD. A.R. SUBMITTED THAT ASSESSEE IS A POOR TRUCK DRIVER AND BECAUSE OF HIS NATURE OF JOB, HE COULD NOT APPEAR BEFORE THE LD. ASSESSING OFFICER. HOWEVER, HE SUBMITTED RELEVANT DETAILS WITH REGARD TO HIS CASH DEPOSIT IN THE BANK WITH THE LD. CIT(A). BUT LD. CIT(A) AS ASSESSEE COULD NOT HIRE OF QUALIFIED CHARTERED ACCOUNTANT INSTEAD OF C.A., HE ENGAGED ONE I.T.P. WHO COULD NOT RENDERED PROFESSIONAL SERVICES UP TO THE EXPECTATION OF THE ASSESSEE AND SAME IS EVIDENT FROM THE ORDER OF THE LD. CIT(A) THAT AN APPLICATION UNDER RULE 46A WAS NOT FILED BY THE SAID I.T.P. 7. THUS IN ORDER TO MEET ENDS OF THE JUSTICE, WE SET ASIDE MATTER TO THE FILE OF THE LD. ASSESSING OFFICER WITH THE CONDITION THAT ASSESSEE SHALL DEPOSIT THE COST OF RS. 1,000/- WITH THE DEPARTMENT WITHIN 60 DAYS FROM THE DATE OF THE RECEIPT OF THE ORDER. THEREAFTER, LD. A.O. WILL PROCEED WITH THE MATTER OF THE ASSESSEE. ITA NO. 283/RJT/2018 . A.Y. 2009-10 4 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 12 - 08- 2021 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 12/08/2021 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,RAJKOT