Hanif Karmat Shaikh, Aurangabad V. Income tax Officer,

ITA 2969/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7595 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 29-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Assessee Lawyers: NIKHIL GANGWAL
• Keywords: Unexplained investment; Opportunity of being heard; Reasonable cause

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO. 2969/PUN/2016 !' # $# / ASSESSMENT YEAR : 2010-11 SHRI HANIF KARMAT SHAIKH, HOUSE NO. 284, PIMPALWADI, POST- PAITHAN, MIDC PAITHAN, DIST- AURANGABAD, PIN-431 008 PAN : BRDPS0411A ....... / APPELLANT %' / V/S. THE INCOME TAX OFFICER, WARD 1(2), AURANGABAD. / RESPONDENT APPELLANT BY : SHRI NIKHIL GANGWAL RESPONDENT BY : SHRI PANKAJ GARG / DATE OF HEARING : 16.05.2018 / DATE OF PRONOUNCEMENT : 17.05.2018 & / ORDER PER D. KARUNAKARA RAO, AM THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1, AURANGABAD DATED 25.08.2016 FOR ASSESSMENT YEAR 2010-11. 2 ITA NO.2969/PUN/2016 A.Y.2010-11 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN APPEAL: 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS ERRED IN SUSTAINING ADDITION TOWAR DS ALLEGED UNEXPLAINED INVESTMENTS TOWARDS CASH DEPOSITS IN BA NK AS MADE BY THE LEARNED AO - - TOTALLY DISREGARDING THE FACTS AND CONTENTION OF ASSESSEE THAT CASH WAS DEPOSITED FOR MAKING PAYMENTS TO DRIVERS OF RES PECTIVE TRUCKS/VEHICLES USED IN TRANSPORTATION OF GOODS. -IGNORING EVEN THE WRITTEN SUBMISSIONS FILED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS ERRED IN SUSTAINING THE AD DITION OF RS.30,49,700/- MADE BY THE LEARNED AO AND NOT CONSI DERING THE EXPENDITURE INCURRED BY THE ASSESSEE FOR THE ABOVE SAID CREDITS. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS ERRED IN-SUSTAINING THE ADDITIONS CREDIT ENTRIES IN SAVING BANK ACCOUNT ADDED U/S.69 WITHOUT APPRECIATI NG THE FACT THAT THE LEARNED AO HAD NOT CONSIDERED ANY SUBMISSION OF THE ASSESSEE. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, SUBSTITUTE, MODIFY THE ABOVE GROUNDS OF APPEAL, IF NECESSARY ON THE BA SIS OF WRITTEN SUBMISSIONS AND PERSONAL PRESENTATION TO BE MADE AT THE TIME OF HEARING. 3. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO AN AFFID AVIT DATED 19.11.2016 FILED BY ASSESSEE AND SUBMITTED THAT THERE IS D ELAY OF 43 DAYS IN FILING THIS APPEAL. THE DELAY IS OCCURRED DUE TO ILL HEATH OF TH E ASSESSEE AND THE ASSESSEE COULD NOT CONSULTANT FOR DISCUSSION ON THE MATTER OF FILING THE APPEAL. THEREFORE, THE INSTANT APPEAL COULD NOT BE FILED WITHIN THE PRESCRIBED TIME LIMIT OF 60 DAYS BEFORE HON'BLE INCOME TAX APPELLATE TR IBUNAL. HENCE, THE LD. COUNSEL OF ASSESSEE PRAYED FOR ADMITTING THE APPE AL FOR ADJUDICATION CONDONING THE SAID DELAY OF 43 DAYS IN FILING THE APPEAL. 4. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE CONT ENTS OF AFFIDAVIT DATED 19.11.2016 FILED BY THE ASSESSEE, I AM OF THE OPINIO N THAT ILL HEALTH 3 ITA NO.2969/PUN/2016 A.Y.2010-11 CONSTITUTES REASONABLE CAUSE AND HENCE, THE DELAY OF 43 DAYS IN FILING APPEAL IS REQUIRED TO BE CONDONED. THE APPEAL IS TAKEN UP FOR ADJUDICATION. 5. ON MERITS OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE ONLY ISSUE RAISED BY ASSESSEE IS ABOUT CASH D EPOSIT OF RS.30,49,700/-. FOR WANT OF EXPLANATION ON THE SOURCE OF CA SH DEPOSITS, THE ASSESSING OFFICER MADE ADDITION IN THE EX-PARTE ASSESSMENT MADE U/S.144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT). DURING FIRST APPELLATE PROCEEDINGS, THE CIT(A) CONFIRMED THE ADDITION WITHO UT APPRECIATING THE EVIDENCES FURNISHED BEFORE HIM OR CONDUC TING ENQUIRY INTO THE CROSS VERIFICATION OF THE EVIDENCES AND THE SOURCE OF CASH DEPOSITS BY A COUPLE OF INDIVIDUALS. THE ASSESSEE SUBMITTED THAT THE CAS H WAS GIVEN BY TRANSPORT CONTRACTORS I.E. (I) MR. SALIM HUSEAAIN SIDDIQUI OF RS.1 2,45,870/- & (II) MR. MOHAMAD AMIN SIDDIQUI OF RS.16,80,630/-. 6. DURING PROCEEDINGS BEFORE ME, LD. COUNSEL FOR THE ASSES SEE BROUGHT MY ATTENTION TO THE CONFIRMATION LETTERS, BALANCE SHEET CO PIES AND OTHER FINANCIAL STATEMENTS OF MR. SALIM & MR. MOHAMMAD (SUPRA) AND SUBMITTED THAT THESE AMOUNTS CONSISTS OF PART ADDITION OF RS.30,4 9,700/- WHICH REQUIRES TO BE EXAMINED THOROUGHLY. THEREFORE, LD. COUNS EL FOR THE ASSESSEE PRAYED FOR RESTORING THE MATTER TO THE FILE OF ASSESSING O FFICER FOR FRESH EXAMINATION. 7. ON THE OTHER HAND, LD. DR FOR THE REVENUE PLACED RELIA NCE ON THE ORDER OF ASSESSING OFFICER AND CIT(A). 8. ON HEARING BOTH THE PARTIES, I AM OF THE OPINION THAT REQUEST OF THE LD. COUNSEL IS FAIR AND REASONABLE AND ACCORDINGLY, I ORDER FOR REMANDING THE 4 ITA NO.2969/PUN/2016 A.Y.2010-11 ISSUE. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THOROUGH LY THE ALL THE DOCUMENTS AND SOURCES OF FUNDS/CASH DEPOSITS AND OWNER SHIP OF THE SAME I.E. (I) MR. SALIM HUSEAAIN SIDDIQUI & (II) MR. MOHAMAD AMIN SIDDIQUI. TH E ASSESSING OFFICER SHALL EXAMINE THEM TOO AS PER LAW. THE ASS ESSING OFFICER SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE REPEATING THE ADDITIONS, IF ANY. ACCORDINGLY, GROUNDS RAISE D BY ASSESSEE IN APPEAL ARE ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 17 TH DAY OF MAY, 2018. SD/- ( . / D. KARUNAKARA RAO ) / ACCOUNTANT MEMBER / PUNE; ! ' / DATED : 17 TH MAY, 2018. SB &'(!)*+,+$) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-1, AURANGABAD. 4. THE PR. CIT-1, AURANGABAD. 5. %&' (( )* , + )* , - ,-. , / DR, ITAT, SMC BENCH, PUNE. 6. '/ 01 / GUARD FILE. // TRUE COPY // +2 / BY ORDER, ( 3 ). /PRIVATE SECRETARY + )* , / ITAT, PUNE.