Shri Pareshbhai Rameshbhai Prajapati, Surat V. The Income Tax Ward- 1,Bardoli, Surat

ITA 3016/AHD/2015

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1851 (ITAT-SURAT)
• Duration Of Justice: 6 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-05-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 27-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 271(1)(c); 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A.L.SAINI, AM आयकरअपीलसं./ITA No.3016/AHD/2015 (िनधाŊरणवषŊ / Assessment Year: (2009-10) (Virtual Court Hearing) Shri Pareshbhai Rameshbhai Prajapati, 401-403, Bonista Rajhans, B/h Ram Chowk Temple, Nr. Panchvati Apartment, Ghod-dod Road, Surat-395 007 Vs. Income Tax Officer Warde-1, Bardoli,Room No.601, Aaykar Bhavan, Majura Gate, Surat ̾थायीलेखासं./जीआइआरसं./PAN/GIR No.: ANFPP 7713 B (Appellant ) (Respondent) Assessee by : Shri Ashwin K Parekh, C.A Respondent by : Shri Vinod Kumar – Sr-DR सुनवाईकीतारीख/ Date of Hearing : 23/05/2022 घोषणाकीतारीख/Date of Pronouncement : 21/07/2022 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to assessment year 2009- 10, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-1, Surat, [for short to as ‘Ld.CIT(A)’] dated 21.08.2015, which in turn arises out of penalty order passed by the Assessing Officer under section 271(1) (c ) of the Income Tax Act, 1961 (in short ‘the Act’), dated 30.01.2015. 2. The grounds of appeal raised by the assessee are as follows: “1. The learned CIT(A) has grievously erred in law and on facts in confirming the penalty u/s 271(1)(c) of the Act at Rs.22,90,696/- levied by Assessing Officer without appreciating the detailed submission, explanation and evidences submitted. The penalty should therefore, be deleted.” 3. Succinct facts are that only grounds of appeal involved in the assessee`s case is penalty under section 271(l)(c) of the Act, levied by Assessing Officer to the tune of Rs. 22,90,696/- on account of deposits in three Bank Accounts. The Assessing Officer has made the total addition of Rs. 67,39,323/- in assessment Page | 2 ITA No.3016/AHD/2015 A.Y. 09-10 Sh. Pareshbhai R Prajapati order u/s 143(3) of the Act passed on 21.12.2011. The appeal against the quantum addition was dismissed by the Income-tax Appellate Tribunal for non-appearance by assessee. During the assessment proceedings, the deposits in three (3) Bank Accounts were not satisfactorily explained by the assessee and the assessing officer noticed many holes in the story of the assessee that money was received from friend/relatives was for purchase of "Gold Coin". The assessing officer observed that this is something unusual practice because any person who intends to buy "gold coin" could have done so directly on his own. Besides this, it is an intriguing fact as to why the persons staying in USA/Australia chose the assessee over his/her close relatives for carrying out the transactions on their behalf. The assessing officer also asked assessee to produce the concerned persons for examination but assessee failed to do so. Therefore, assessing officer held that assessee failed to satisfactorily explain the source of deposits in his Bank account, thereby failed to discharge his onus. As per clause (B) to Explanation (1) to Section 271(1)(c) of the Act, once the assessee failed to substantiate his explanation and failed to prove that such explanation is bona fide therefore assessing officer imposed penalty under section 271(1) (c ) of the Act at Rs.22,90,696/-. 4. On appeal, ld CIT(A) confirmed the penalty imposed by the assessing officer, therefore, assessee is in appeal before us. 5. Before us, ld Counsel for the assessee submitted additional evidences in respect of two bank accounts. The same is explained in the written submissions filed before the Bench by the ld Counsel, the said written submission (relevant part only) is reproduced below: “IV, Submission on Addition of Rs.31,99,484/- for Bank A/c. No. 081701400006643 and 0810140008924. The appellant is an Individual/ working as on employee with Kotak Mahindra Bank. According to AIR the appellant had deposited amount of Rs. 15,40,800/- in Bank account with Kotak Mahindra Bank. According to Information u/s. 133(6) of the Act given by the bank, the appellant maintains 3 bank accounts referred to above. The A/c. No. 081701400006643 is owned by Sunilkumar Hargovindbhai Prajapati. He is staying at Australia. The A/c. No. 08101400008924 is owned by Page | 3 ITA No.3016/AHD/2015 A.Y. 09-10 Sh. Pareshbhai R Prajapati Nikita Bhavesh Patel, she is staying in USA. The appellant was operating these account for and behalf of and according to instructions of persons residing outside India. The appellant submitted the mail confirmations with PAN of two persons who owned up the transaction as belonging to them. The original confirmations / Affidavits were not available since vide Notice dtd.25.11.2011 enclosed herewith the Assessing Officer had called for this details and the order was passed on 21.12.2011. (Page 55 to 56) It was not possible to get the original Affidavits of the persons residing outside India. Hence, the following additional evidences are submitted. i. The Affidavit of Sunil Hagovindbhai Prajapati for Bank A/c. No. 081701400006643. (Page 57) ii. The confirmation of Nikita Patel for A7c. No. 0810140008924. Since, the appellant is not the owner of these 2 Accounts and transactions pertain to Sunil Prajapati and Nikita Patel who had owned up the same, the addition of these 2 Accounts cannot be made in the hands of the appellant.....” 6. Learned Senior DR for the Revenue argued that additional evidence submitted by the assessee were neither examined by ld CIT(A) nor by assessing officer, therefore, matter may be remitted back to the file of the ld CIT(A) to examine these additional evidences by taking remand report from the assessing officer in respect of these additional evidences. 7. We have heard both the parties and perused the materials available on record. We note that additional evidence in respect of bank account No.08170140006643 is an affidavit of Sunil Hargovindbhai Prajapati, which is placed at page no. 57 of the paper book. The assessee also filed confirmation of Nikita Bhaveshbhai Patel in respect of bank account No.08170140008924, as an additional evidence, which is placed at page no. 58 of the paper book. These documents are additional evidences which were not remitted back by Ld. CIT(A) to the file of the Assessing Officer for his examination and to call remand report about these additional evidences, filed by assessee. Therefore, we note that these additional evidences have not been examined by Assessing Officer, hence in the interest of justice and fair play we remit this issue back to the file of the ld CIT(A) with the direction to take remand report form assessing officer about these additional evidences and adjudicate the issue in accordance with law. Therefore, appeal of the assessee is allowed for statistical purposes in above terms. Page | 4 ITA No.3016/AHD/2015 A.Y. 09-10 Sh. Pareshbhai R Prajapati 8. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 21/07/2022 by placing the result on the Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat/िदनांक/ Date: 21/07/2022 Dkp Outsourcing Sr.P.S. Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr.CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat