Razak Ismailbhai Dodapotra, Jamnagar V. The Income Tax Officer, Ward-3(5), , Jamnagar

ITA 322/RJT/2018

AI Insights

This case involves an appeal by Razak Ismailbhai Dodapotra against the order of the CIT(A), Jamnagar, which confirmed the additions made by the assessing officer regarding unexplained cash deposits in the assessee's bank account for the Assessment Year 2009-10. The assessing officer had made an addition of Rs. 17,65,609 as unexplained income under section 144 of the Income Tax Act, 1961. The CIT(A) dismissed the assessee's contentions, including the request to admit additional evidence under Rule 46A, citing that the assessee had been given adequate opportunity to represent his case. The assessee appealed to the Income Tax Appellate Tribunal (ITAT), which found merit in the assessee's request to present additional evidence and restored the matter to the CIT(A) for a fresh examination.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 138342 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-03-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 26-08-2018
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 144; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH VIRTUAL COURT ] Before: Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member Razak Is mailbhai Dod apotra Nag arpara Ro ad, Opp Old Post Office, Near ACB O ffice, Ja mnagar PAN: AI WP D1 695C (Appellant) Vs The ITO, Ward-3(5), Ja mnagar (Resp ondent) Asses see by : None Revenue by : Shri B. D. Gupta, Sr. D. R. Date of hearing : 09-05 -2 023 Date of pronouncement : 16-05 -2 023 आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- This assessee’s appeal for A.Y. 2009-10, arises from order of the CIT(A), Jamnagar dated 22-06-2018, in proceedings under section 250 of the Income Tax Act, 1961; in short “the Act”. ITA No. 322/Rjt/2018 Assessment Year 2009-10 I.T.A No. 322/Rjt/2018 A.Y. 2009-10 Page No Razak Ismailbhai Dodapotra vs. ITO 2 2. The assessee has taken the following grounds of appeal: “1. I am not agreeing with the order of assessment being raised by H'ble Commissioner of Income Tax (Appeals). 2. I have not escaped any Income for the said A.Y. 2009 - 10. I have not filed my income tax return for the A.Y. 2009 - 10 as my income was below the taxable limit for the said assessment year. My main source of income was from Jobwork and I had share transaction during the A.Y. 2009 - 10 in which there was a Short Term Capital Loss. 3. The assessee has also submitted detailed clarification in relation to the amount being credited in the vardhaman Co-Op. Bank Ltd. having account no.10011001002248 for the Financial Year 2008 - 09 vide our submission to H'ble CIT(A) on 21/02/2018. In the said account the total transaction details is as below. Sr. No. Transaction Type Amount in Rs. 1 Opening Balance 1003.00 2 Cash Deposit 1140550.00 3 Cheque of INA Stock Broking 589023.26 4 Bank Interest 198.00 5 Dividend 4785.00 6 Cheque return charges reverse 50.00 Total 1735609.26 4. The assessee has given all the necessary evidence also to rely on for the credit of the amount in the said bank account in relation to share transactions and cheques of INA Stock Broking. The STT on said transaction is already paid u/s. 111A of the Income Tax Act 1961. There was a Short Term Capital Loss of Rs. 60752.30 and STT paid of Rs. 7646.79 during the Financial Year 2008 - 09. 5. The assessee has also agreed to offer income as business income on Presumptive basis @ 8% of total turnover of Rs. 1140550.00 under section 44AF in relation to cash being deposited in the said bank in A.Y. 2009 - 10 during our submission to H'ble CIT(A) on 21/02/2018. I.T.A No. 322/Rjt/2018 A.Y. 2009-10 Page No Razak Ismailbhai Dodapotra vs. ITO 3 6. The assessee has also requested the H'ble CIT(A) to consider the said appeal under Rule 46A of the Income Tax Rules and remand report was requested. The assessee already mentioned that due to the change in address of his residence he was not able to get the notices in time and due to that he was not able to appear before the Assessing Officer. But the same was not accepted by the H'ble CIT(A) and the appeal was dismissed. 7. The assessee hereby aggrieved by the H'ble CIT(A) order and request the H'ble Income Tax Appellate Tribunal to consider the case as appealable and allow the assessee to appear before the Appellate Tribunal. 8. Assessee also hereby request the H'ble ITAT to grant a stay on demand and penalty until the disposal of the matter.” 3. The brief facts of the case are that during the course of assessment, the assessing officer observed that there was a cash deposit of 17,65,609/- in the savings bank account of the assessee. The assessing officer made an addition in respect of the aforesaid cash deposit as the assessee’s unexplained income, in the order passed ex parte u/s 144 of the Act. 4. In appeal before Ld. CIT(Appeals), the assessee challenged the assessment order on the ground that same had been received by the assessee beyond the due stipulated date and accordingly, the assessment order was barred by limitation. Secondly, the assessee requested that this is a fit case for filing of additional evidence under Rule 46A since the assessment order was passed u/s 144 of the Act and the assessee did not get adequate opportunity to represent his case on merits and adduce evidence to show the genuineness of the aforesaid transaction. Thirdly, the assessee submitted that the assessee had shifted from the aforesaid address to which the notices had been issued by the assessing officer and accordingly, this was the reason I.T.A No. 322/Rjt/2018 A.Y. 2009-10 Page No Razak Ismailbhai Dodapotra vs. ITO 4 why he could not cause appearance before the assessing officer during the course of assessment proceedings. 5. The Ld. CIT(Appeals) dismissed all the aforesaid contentions raised by the assessee and also did not allow the assessee to produce additional evidence under Rule 46A on the ground that the assessing officer had given adequate opportunity to the assessee to represent his case on merits and file relevant details/evidence in support of the aforesaid transaction, however, the assessee has not been able to explain the circumstances which prevented him to file the aforesaid details during the course of assessment proceedings. Accordingly, the Ld. CIT(Appeals) confirmed the additions in the hands of the assessee. 6. The assessee is in appeal before us against the aforesaid additions confirmed by Ld. CIT(Appeals). At the outset, the counsel for the assessee submitted that there was no mala fide intention on the part of the assessee in causing non-appearance before the assessing officer during the course of assessment proceedings. However, despite the same, Ld. CIT(Appeals) erred in fact and in law, in not permitting the assessee to produce additional evidence in order to prove the genuineness of the transaction in terms of Rule 46A of the Income Tax Rules. In response, the Ld. DR placed reliance on the observations made by the Ld. CIT(Appeals) and the assessing officer in their respective orders. 7. We have heard the rival contentions and perused the material on record. We are of the considered view that in the instant facts, Ld. I.T.A No. 322/Rjt/2018 A.Y. 2009-10 Page No Razak Ismailbhai Dodapotra vs. ITO 5 CIT(Appeals) should have permitted the assessee to place on record the requisite material/evidence in support of the merits of the case under Rule 46A of the IT Rules. Therefore, in our considered view, in the interest of justice, the matter is being restored to the file of Ld. CIT(Appeals), so as to allow the assessee to present his case on merits and to produce supporting evidence in support of his case. In result, the appeal of the assessee is a restored to the file of Ld. CIT(Appeals) with the above directions. 8. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 16-05-2023 Sd/- Sd/- (WASEEM AHMED) (SIDHHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 16/05/2023 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