Mustak Ahmed Noormohamed Malek, Ahmedabad V. The Income tax Officer,Ward-12(3), Ahmedabad

ITA 2915/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76809 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 22-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 20-10-2010
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Assessee Lawyers: PF JAIN
• Keywords: Additional evidence; Non compliance
• Section: 234B; 144

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD 0 00 0 0 00 0 , , , , ! ' ! ' ! ' ! '0 00 0 0 00 0 #' #' #' #', , , , $ $ $ $ % % % % BEFORE SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO. 2915/AHD/2010 ASSESSMENT YEAR 2007-08 MUSTAK AHMED NOORMOHAMED MALEK, M/S M.N. TRADERS, NEAR ASARWA CROSSING, OPP. RAILWAY COLONY-2, ASARWA, AHMEDABAD. PAN: AGAPM8834E VS INCOME TAX OFFICER, WARD-12(3), AHMEDABAD. &'/ APPELLANT )&' / RESPONDENT REVENUE BY : SHRI K.C. MATHEWS, SR. DR ASSESSEE(S) BY : SHRI P.F. JAIN, AR *' + , -$/ // / DATE OF HEARING : 22/05/2014 ./0 , -$ / DATE OF PRONOUNCEMENT : 30/05/2014 1 1 1 1/ // / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XX, AHMEDABAD DATED 01.09.2010. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL: 1. THE ID. CIT (A), HAS ERRED IN LAW AND ON FACTS I N UPHOLDING EX- PARTE ADDITION OF RS.11,44,900/- BEING CASH DEPOSIT IN THE SAVING ACCOUNT NO. 11027 WITH AHMEDABAD MER.CO.OP.B ANK, GIRDHARNAGER BR.AHMEDABAD WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE APPELLANT IN ITS PROPER PERSPE CTIVE. ITA NO. 2915/AHD/2010 MUSTAK AHMED NOORMOHAMED MALEK FOR A.Y. 2007-08 - 2 - 2. HE HAS ERRED IN LAW AND FACTS IN NOT ADMITTING A ND CONSIDERING THE ADDITIONAL EVIDENCE IN THE FORM OF BANK SLIPS , BANK CHEQUES ETC. EXPLAINING THE CASH DEPOSIT IN THE BANK IGNORI NG THE FACTS THAT IT WENT TO THE ROOT OF THE MATTER AND AS PER R ULE 46 OF THE INCOME TAX RULES IT WAS ADMISSIBLE. 3. HE HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN N OT CONSIDERING AND APPRECIATING THE WRITTEN SUBMISSION DATED 01/05 /2010 FURNISHED BEFORE HIM DULY SUPPORTED BY THE AFFIDAVI T OF APPELLANT AND IGNORING THE FACTS STATED THERE IN. 4. HE HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN H OLDING WITHOUT BASIS THE NON COMPLIANCE OF NOTICES AS DELIBERATE, HOLDING THE EXPLANATION OF THE APPELLANT FOR CASH DEPOSIT IN BA NK AS BOGUS, NOT ACCEPTABLE AND IGNORING THE AFFIDAVIT IN ENGLIS H OUT OF DOUBT AND SUSPICION. 5. HE HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE MONEY DEPOSITED IN THE BANK ACCOUNT BELONGED TO THE APPEL LANT AND BANK ACCOUNT OF THE APPELLANT WAS NOT MISUSED BY SO MEBODY ELSE. 6. HE HAS ERRED IN LAW AND ON FACTS IN NOT CONSIDER ING THE EXPLANATION OF THE APPELLANT THAT THE DEEMING PROVI SIONS OF SECTION 69/69A WERE NOT APPLICABLE TO THE FACTS OF THE APPELLANT VIEWED AS PER THE SETTLED PRINCIPLES OF LAW IN THIS REGARDS. 7. ON THE FACTS, THE EX-PARTE ADDITION OF RS 11,44, 900/- OUGHT TO HAVE BEEN DELETED. 8. ON THE FACTS NO INTEREST U/S. 234B OUGHT TO HAVE BEEN LEVIED. 3. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE A T THE TIME OF THE HEARING SUBMITTED THAT BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS) THE ASSESSEE MADE AN APPLICATION FOR ADMISSION OF F OLLOWING ADDITIONAL EVIDENCE: 1. COPY OF APPLICATION DATED 06.01.2010 AND 28.01.2 010 TO BANK MANAGER FOR SUPPLY OF COPIES OF CHEQUES AND DE TAILS OF PARTIES TO WHOM CHEQUES ISSUED. 2. COPY OF DETAILS OF CHEQUES, COPIES OF BANK SLIP FOR SUCH DEPOSIT WITH FORWARDING LETTER DATED 20.01.2010 BY THE BANK MANAGER. ITA NO. 2915/AHD/2010 MUSTAK AHMED NOORMOHAMED MALEK FOR A.Y. 2007-08 - 3 - 3. LETTER DATED 16.02.2010 BY BANK MANAGER SUPPLYIN G XEROX COPIES OF CHEQUES PASSED BY THE BANK ON VARIOUS DAT E. 4. COPIES OF LETTERS DATED 08.04.2010 WITH POSTAL P ROOF WRITTEN TO: I. AMBICA TRADERS II. NARENDRA TRADERS III. KANTIBHAI K. THAKKAR IV. A.N. TRADERS V. JIGNESH TRADERS VI. R. AMBALAL & CO. ASKING FOR COPY OF ACCOUNT AS CHEQUES HAVE BEEN GIV EN TO THESE PARTIES. THE COMMISSIONER OF INCOME TAX (APPEALS) DID NOT AD MIT THE ADDITIONAL EVIDENCE ON THE GROUND THAT IN THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 144 OF THE INCOME TAX, 1961, THE ASSESSING OFFICER HAS DETAILED THE NUMBER OF OPPORTUNITIES GIVEN TO T HE ASSESSEE TO COMPLY WITH THE NOTICES. THE ASSESSING OFFICER ALSO TOOK PAINS TO ISSUE FINAL SHOW CAUSE NOTICE WHICH HAS ALSO NOT BEEN COMPLIED BY TH E ASSESSEE. THIS SHOWS THAT THE NON-COMPLIANCE TO THE NOTICES BY THE ASSES SEE WAS DELIBERATE. THUS, IT WAS THE SUBMISSION OF THE AUTHORIZED REPRE SENTATIVE OF THE ASSESSEE THAT THE COMMISSIONER OF INCOME TAX (APPEA LS) WITHOUT ADMITTING ADDITIONAL EVIDENCES AND WITHOUT CONSIDERING THE SA ME HAS DISMISSED THE APPEAL OF THE ASSESSEE AND PRAYED THAT THE MATTER S HOULD BE RESTORED BACK TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPE ALS) WITH THE DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES AND CONSIDER THE SAM E AND DECIDE THE APPEAL OF THE ASSESSEE AFRESH. 4. THE DEPARTMENTAL REPRESENTATIVE VERY FAIRLY CON CEDED THAT ADDITIONAL EVIDENCES WHICH ARE NOW FILED IN THE PAP ER BOOK OF THE ASSESSEE AT SR. NO. 4 TO 7 SHOULD BE ADMITTED BY THE COMMISS IONER OF INCOME TAX (APPEALS) AND THE APPEAL SHOULD BE RE-ADJUDICATED A FRESH AFTER CONSIDERING THOSE EVIDENCES. ITA NO. 2915/AHD/2010 MUSTAK AHMED NOORMOHAMED MALEK FOR A.Y. 2007-08 - 4 - 5. IN VIEW OF THE ABOVE SUBMISSION OF THE DEPARTME NTAL REPRESENTATIVE, WE SET ASIDE THE ORDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS) AND REMAND THE MATTER BACK TO HIS FILE FO R RE-ADJUDICATION OF THE APPEAL OF THE ASSESSEE AFRESH AFTER CONSIDERING THE ADDITIONAL EVIDENCES AND ALSO ANY OTHER EVIDENCES WHICH THE ASSESSEE WISHES TO FILE BEFORE HIM DURING THE COURSE OF HEARING. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 30 TH OF MAY, 2014 AT AHMEDABAD. SD/- SD/- (D.K. TYAGI) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 30/05/2014 GHANSHYAM MAURYA, SR. P.S. TRUE COPY 1 , )-2 320- 1 , )-2 320- 1 , )-2 320- 1 , )-2 320-/ COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. )&' / THE RESPONDENT. 3. !! - *4 / CONCERNED CIT 4. *4() / THE CIT(A)-III, AHMEDABAD 5. 2 7 )-' , , / DR, ITAT, AHMEDABAD 6. 8 9+ / GUARD FILE. 1'* 1'* 1'* 1'* / BY ORDER, : :: :/ // / !; !; !; !; ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD