Yakub Hasanbhai Malek, Mehsana V. Income Tax Officer, Ward-4, Gandhinagar

ITA 3275/AHD/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8681 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 23-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRITESH L SHAH
• Keywords: Additional evidence; Set aside
• Section: 144

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAAV, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 3275/AHD/2015 ( / ASSESSMENT YEAR: 2011-12) YAKUB HASANBHAI MALEK JETHLAJ, TALUKA-KALOL, DISTRICT- MEHSANA- 382721(NORTH GUJARAT) / VS. ITO WARD-4, GANDHINAGAR ./ ./PAN/GIR NO. : AME PM9 024 E ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRITESH L. SHAH, AR / RESPONDENT BY: SMT. KEYUR PATEL, SR. DR !' /DATE OF HEARING 10/06/2019 #$!' / DATE OF PRONOUNCEMENT 15/07/2019 %& /O R D E R PER AMARJIT SINGH - AM: THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2011-12, ARISE FROM ORDER OF THE CIT(APPEALS), GANDHINAGAR DATED 21.09.2015, IN PROCE EDINGS UNDER SECTION 144 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE INSTANT APPEAL IS AGAINST THE ORDER OF CIT(A) IN CONFIRMING THE ADDITION OF UNACCOUNTED CASH DEPOSITED TO BANK AMOUNTING TO RS. 3,14,96,000/- BY THE AO. 3. THE FACT IN BRIEF IF THAT THE ASSESSEE HAS FILED RETURN OF INCOME DECLARING INCOME OF RS. 1,48,174/- ON 06.06.2011. THE CASE WA S SUBJECT TO SCRUTINY ASSESSMENT AND DURING THE COURSE OF ASSESSMENT PROC EEDINGS THE AO HAS NOTICED THAT AS PER THE INFORMATION RECEIVED THROUGH AIR DA TA THE ASSESSEE HAS DEPOSITED ITA NO. 3275/AHD/2015 A.Y. 2011-12 2 CASH OF RS. 31,49,600/- IN HIS BANK ACCOUNT. THE A SSESSEE HAS DEPOSITED THE AFORESAID CASH IN HIS TWO BANK ACCOUNTS (RS. 29,49, 600/- WAS DEPOSITED IN BANK OF INDIA SANTAJ BRANCH AND THE REMAINING CASH OF RS. 2 ,00,000/- WAS DEPOSITED IN BANK OF INDIA JAMALPURA BRANCH, AHMEDABAD). THE AO HAS ISSUED A NUMBER OF NOTICES AND LETTERS TO THE ASSESSEE TO EXPLAIN THE SOURCES OF THE SAID CASH DEPOSITED IN THE BANK ACCOUNT. HOWEVER, THE ASSESSEE HAS NOT MADE ANY COMPLIANCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. CONSEQUENTLY , THE AO HAS ADDED THE IMPUGNED AMOUNT OF CASH DEPOSITED OF RS. 31,49,600/ - TO THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD . CIT(A). THE ASSESSEE HAS ALSO NOT MADE ANY COMPLIANCE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). THEREFORE, THE LD. CIT(A) HAS SUSTAINED THE ADDITION MADE BY THE AO. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US THE LD. COUNSEL HAS CONTENDED THAT THERE WAS DISPUTE BETWEEN THE ASSESS EE AND HIS WIFE AND HIS WIFE HAS LEFT HIM AND STARTED LIVING IN HER FATHERS HOM E. SINCE THE FAMILY WAS BROKEN THE ASSESSEE WAS UNDER HEAVY MENTAL STRESS TENSION AND AGONY AND WAS NOT IN A WORKING CONDITION. THE LD. COUNSEL HAS FURTHER SUB MITTED THAT LIFE OF THE ASSESSEE HAS BECOME EXTREMELY STRESSFUL AND PAINFUL DUE TO W HICH HE COULD NOT CONCENTRATE ON SCRUTINY ASSESSMENT AND ALSO COULD NOT MAKE COMP LIANCE AT THE TIME OF APPELLATE PROCEEDING BEFORE THE LD. CIT(A). THE LD. COUNSEL HAS ALSO PLACED ADDITIONAL EVIDENCES IN THE PAPER BOOK COMPRISING COPIES OF BA NK PASS BOOK, BANAKHAT DATED 15.04.2008, BANK PASS BOOK OF THE LAND PURCHASER ET C. THE LD. COUNSEL HAS ALSO SUBMITTED AFFIDAVIT OF THE ASSESSEE PLEADING THAT H E COULD NOT CONCENTRATE ON THE SCRUTINY ASSESSMENT PROCEEDING BECAUSE OF FAMILY DI SPUTE WITH HIS WIFE. IT WAS PLEADED IN THE AFFIDAVIT THAT NECESSARY DOCUMENTS A ND OTHER EVIDENCES COULD NOT BE SUBMITTED DURING ASSESSMENT PROCEEDING BECAUSE OF F AMILY PROBLEM AS STATED ABOVE. THE ASSESSEE HAS ALSO SUBMITTED AFFIDAVIT FR OM MAHIRHUSEN MUJJAFARHUSEN ITA NO. 3275/AHD/2015 A.Y. 2011-12 3 GHANCHI AND GHANCHI RAMIJHUSEN ASALAMBHAI REGARDING PAYMENT RECEIVED ON PURCHASE OF AGRICULTURE LAND. HE HAS ALSO SUBMITTE D AFFIDAVIT OF MAULAVI SHEKH ABUSALE WHO HAD TRIED TO MAKE COMPROMISE BETWEEN TH E ASSESSEE AND HIS WIFE. THE LD. COUNSEL HAS FURTHER SUBMITTED THAT THE CASE OF THE ASSESSEE WAS NOT DECIDED ON MERIT. 6. ON THE OTHER HAND, THE LD. DR HAS SUPPORTED THE O RDER OF LOWER AUTHORITY AND SUBMITTED THAT IN SPITE OF GIVING A NUMBER OF O PPORTUNITIES THE ASSESSEE HAS FAILED TO MAKE ANY COMPLIANCE BEFORE THE AO AND THE LD. CIT(A) DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND APPELLATE PROC EEDINGS. 7. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD CAREFULLY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE HAS FAILED TO MAKE ANY COMPLIANCE, THEREFORE, THE ASSESSMENT ORDER WAS PAS SED EX-PARTE UNDER SEC. 144 OF THE ACT TREATING THE TOTAL CASH DEPOSIT MADE IN HIS BANK ACCOUNT AS UNEXPLAINED AND ADDED TO THE TOTAL INCOME. DURING THE COURSE OF AP PELLATE PROCEEDING BEFORE CIT(A) THE ASSESSEE HAS ALSO FAILED TO MAKE ANY COMP LIANCE, THEREFORE, THE LD. CIT(A) HAS SUSTAINED THE ADDITION MADE BY THE AO. B ECAUSE OF NON-COMPLIANCE FROM THE SIDE OF THE ASSESSEE THE LD. CIT(A) COULD N OT ADJUDICATE THE CASE OF THE ASSESSEE ON MERIT. AS REPORTED ABOVE IN THIS ORDER THE ASSESSEE HAS PLEADED THAT HE COULD NOT MAKE COMPLIANCE BEFORE LOWER AUTHORITY ON THE REASON OF PREVAILING STRAINED RELATION WITH HIS WIFE, HOWEVER, WE OBSERV E THAT THE ASSESSEE HAS NEITHER MADE A SINGLE COMPLIANCE BEFORE THE LOWER AUTHORITY NOR SUBMITTED ANY WRITTEN SUBMISSION AT THE STAGE OF ASSESSMENT PROCEEDINGS A ND APPELLATE PROCEEDINGS BEFORE THE AO AND LD. CIT(A). CONSEQUENTLY, THE IMP UGNED ISSUE IN THE APPEAL COULD NOT BE ADJUDICATED AT ANY STAGE AT THE TIME O F ASSESSMENT PROCEEDINGS OR AT THE TIME OF APPELLATE PROCEEDINGS. IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES AS ADDUCED ABOVE WHICH WERE REFERRED BY THE ASSESSEE A S IMPEDIMENT IN MAKING COMPLIANCE BEFORE THE LOWER AUTHORITIES, WE CONSIDE R APPROPRIATE TO RESTORE THE LD. CIT(A) TO ADJUDICATE THE CASE ON MERIT ACCORDING TO PROVISION OF SEC. 250(6) OF THE ITA NO. 3275/AHD/2015 A.Y. 2011-12 4 ACT AFTER CONSIDERING THE DOCUMENTS/MATERIAL TO BE FURNISHED BY THE ASSESSEE IN THE SET-ASIDE PROCEEDINGS. BEFORE WE PART WITH THE ORDER, WE ALSO FIND CONSID ERABLE MERIT IN IMPOSING COST ON THE ASSESSEES CASUAL AND NON-COOPERATIVE A PPROACH IN THE TAX PROCEEDINGS. THEREFORE, A COST OF RS. 10,000/- (RS. TEN THOUSAND) I S IMPOSED ON THE ASSESSEE WHICH IS TO BE PAID IN ACCORDANCE WITH LAW BEFORE T HE COMMENCEMENT OF SET ASIDE PROCEEDINGS BEFORE THE LD. CIT(A). 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. SD/- SD/- (RAJPAL YADAV) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNT ANT MEMBER AHMEDABAD: DATED 15/07/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. % / ASSESSEE 3. '( ! )! / CONCERNED CIT 4. )! - / CIT (A) 5. *+, ! ( , ' ( , -.%'% / DR, ITAT, AHMEDABAD 6. ,/ 0 / GUARD FILE. BY ORDER / %& , 1 / - ' ( , -.%'% 2 1.DATE OF DICTATION ON 08.07.2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 09.07.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 11.07.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 11.07.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR . P.S./P.S 15.07.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15.07.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER THIS ORDER PRONOUNCED IN OPEN COURT ON 15/ 07/2019