Shri Darshit Bakulbhai Kothari, Rajkot V. The Income Tax Officer, Ward-2(1)(2), Rajkot

ITA 300/RJT/2018

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 1529 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 15-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT Before: Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member Sh r i Darsh i Ba ku lb ha i Kothar i, Opp . Bha tiy a Ave d i, 3 -Prah lad P lo t Cor ner, Raj ko t P AN: BQWP K15 04 Q ( Ap pe lla nt) Vs The IT O, Wa rd -2 (1)( 2), Rajk o t (Res po nden t) Assessee by: Shri R.D. Lalchandani, A.R. Revenue by: Shri B.D. Gupta, Sr. D.R. Date of hea r in g : 27 -0 6 -202 2 Date of pr on ounce men t : 01 -0 7-202 2 आदेश/ORDER PER BENCH:- This assessee’s appeal for A.Y. 2013-14, arises from order of the CIT(A)-2, Rajkot dated 13-09-2017, in Appeal No. CIT(A)-2/048/2016-17, in proceedings under section 143(3) of the Income Tax Act, 1961; in short “the Act”. 2. The assessee has taken the following grounds of appeal:- ITA No. 300/Rjt/2018 Assessment Year 2013-14 I.T.A No. 300/Rjt/2018 A.Y. 2013-14 Page No Shri Darshit Bakulbhai Kothari vs. ITO 2 “1. I have filed an appeal against the order of CIT(A) on 16.08.2018. 2. The first ground of appeal is "The Commissioner of Income Tax [A] erred in confirming the addition of Rs. 52,44,345/- on account of difference in stock. The confirmation is not justified. 3. In this ground, we have by mistake typed ".. "on account of difference in Stock" instead of ". . . on account of cash deposited in bank" 4. I request you to permit me to rectify the grounds of appeal as above.” 3. At the outset we note that the appeal is time-barred by 248 days. The assessee has filed an affidavit that the delay in filing appeal was owing to financial difficulties, since the assessee is a salaried person and did not have money to pay the appeal fee of ₹ 10,000/ -. Further, since certain legal issues were involved in the instant appeal on account of alleged fraud committed against the assessee, he had filed a police complaint against the bank and had also filed an application before the Joint Director of Enforcement Directorate under the Money-Laundering Act. The delay in filing appeal was caused by the above circumstances. We have heard the contention of the assessee and in the interest of justice, we are hereby condoning the delay in filing the appeal by the assessee. The Ld. Departmental Representative has also not objected to condoning the delay in filing the appeal. Accordingly, the delay in filing the appeal is hereby being condoned. 4. On merits, the brief facts of the case are that the AO received information that the assessee had deposited cash/credit of ₹ 52,44,345/- with I.T.A No. 300/Rjt/2018 A.Y. 2013-14 Page No Shri Darshit Bakulbhai Kothari vs. ITO 3 Development Credit Bank Ltd (DCB), Rajkot Branch during the impugned year. However, for the impugned year the assessee had filed return of income declaring total income of only ₹ 3,25,980/-. Accordingly, notice was issued to the assessee to explain deposits made in the bank account. The AO held that assessee has failed to disclose fully and truly all material facts necessary for assessment for the year under consideration. The assessee has not come up with any cogent proof to establishment the genuineness of transaction, creditworthiness, identity and capacity of the deposits. Accordingly, the AO held that the cash deposited in the bank account amounting to ₹ 52,44,345/- is non-genuine cash deposits/credits as per the provisions of section 68 of the Act and he added the same to the total income of the assessee. 5. In appeal, the assessee submitted that the assessee is having income from salary and has declared total income of ₹ 3,25,980/- during the year under consideration. The assessee has not made any bank transaction as shown in the statement of DCB Bank. The bank account was opened in the DCB Bank, Rajkot by the assessee. Thereafter, the appellant has never operated the bank account. The assessee has never made cash deposits and no cheques are issued in the signature of the assessee as shown in the bank account. The assessee came to know about the cash deposit and the DCB Bank only upon receipt of notice from the Income Tax Department. The assessee submitted that the cheques issued from the bank account have not been signed by him and there is a fraud in his bank account. He further submitted that the assessee had lodged a complaint before the police authority and the police authority has recorded the statement of the assessee. I.T.A No. 300/Rjt/2018 A.Y. 2013-14 Page No Shri Darshit Bakulbhai Kothari vs. ITO 4 Accordingly, the assessee submitted that the said cash deposit in the DCB Bank does not belong to the assessee and has been a victim of fraud. However, the Ld. CIT(A) dismissed the assessee’s appeal with the following observations: “7. Decision Having considered facts and circumstances of the case and rival contentions, I find that the fact of there being unexplained cash deposits in the bank account of assessee is not controverted. The only claim of assessee is that someone else used bank account of assessee fraudulently. However, this contention of assessee has not been proved conclusively. Merely because the assessee has filed complaints with other agencies does not prove that the contention of assessee is correct. The onus is on assessee to prove with conclusive evidence that the impugned bank transaction did not belong to him. In absence of conclusive evidence in support of assessee's contention and there being no satisfactory explanation as to the source of the cash deposits, the action of Assessing Officer calls for no interference. The addition is sustained and ground of appeal 1 is dismissed. The Ground No. 2 : This ground is premature in nature and requires no adjudication.” 6. Before us, the counsel for the assessee reiterated the submissions made before Ld. CIT(A) in appeal proceedings. He submitted that the money deposited in the DCB Bank does not belong to the assessee and he has no knowledge how the same was deposited in his bank account. The assessee has filed a complaint with various authorities including the police department and also the Enforcement Directorate under the Money Laundering Act. The assessee also filed before us copy of police complaint filed with Bhaktinagar police station, copy of letter written to bank seeking appropriate action against the accused dated 15-02-2016, copy of letter received from DCB bank denying to supply copies of account opening forms I.T.A No. 300/Rjt/2018 A.Y. 2013-14 Page No Shri Darshit Bakulbhai Kothari vs. ITO 5 and other documents dated 10 th March, 2016 & copy of letter to the Enforcement Directorate informing them regarding the money laundering activities in DCB Bank. Looking into the facts of the instant case, in the interest of justice, we are restoring the matter to the file of the assessing officer to adjudicate on the matter on the basis of the outcome of the investigations being carried out by various authorities, before whom the assessee has filed complaint against the alleged fraud. Accordingly, with the above observations, the matter is being restored to the file of the AO for fresh adjudication after giving due opportunity of hearing to the assessee. 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 01-07-2022 Sd/- Sd/- (WASEEM AHMED) (SIDHHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Rajkot : Dated 01/07/2022 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order, Assistant Registrar, Income Tax Appellate Tribunal, Rajkot