आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठअहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठ ‘SMC’ अहमदाबाद। अहमदाबाद।अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD ] ] BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.329/Ahd/2022 Asstt.Year : 2017-18 Mayur Mahendrabhai Mehta 2211, B/6, Kalindi Cottage Sanskar Mandal Bhavnagar. PAN : AQSPM 6947 Q Vs ACIT, Cir.1 Bhavnagar. (Applicant) (Responent) Assesseeby : Shri Sarju S. Mehta, CA Revenue by : Shri B.P. Makwana, Sr.DR स ु नवाई क तार ख/D a t e o f H e a r i n g : 2 0 / 0 3 / 2 0 2 3 घोषणा क तार ख /D a t e o f P r o n o u n c e m e n t : 2 4 / 0 3 / 2 0 2 3 आदेश/O R D E R The present appeal has been filed by the assessee against order passed by the Commissioner of Income Tax(Appeals), National Faceless Appeal Centre [in short referred to as ld.CIT(A)] under section 250(6) of the Income Tax Act, 1961 ("the Act" for short), dated 24.6.2022pertaining to Asst.Year2017-12. 2. The assessee has raised following grounds: 1. NATURAL JUSTICE 1.1 In the facts the Learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre ["Ld. CIT (A)"] erred in not granting proper, sufficient and adequate opportunity of being heard to the Appellant while passing the appellate order. 1.2 It is submitted that, in the facts and the circumstances of the case, and in law, the appellate order so framed be held as bad and illegal, as: (i) The same is framed in breach of the principles of natural justice; and ITA No.329/Ahd/2022 2 (ii) The same is passed without application of mind to the facts and thesubmissions brought on record by the Appellant, (iii) The same is passed without providing an opportunity of personal hearing 1.3 It is submitted that in the facts and the circumstances of the case, and in law, no such action was called for. WITHOUT PREJUDICE TO THE ABOVE 2. ADDITION OF RS. 20,06,632/- AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT 2.1 The Ld. CIT (A) erred in confirming the action of the A.O. in making addition of Rs. 20,06,6327- to the income of the Appellant u/s. 68 of the Act on the ground of alleged cash deposits made during demonetization period. 2.2 While doing so, the A.O. erred in: (i) Basing his action on surmises, suspicion and conjecture; (ii) Taking into account irrelevant and extraneous considerations; and (iii) Ignoring relevant material and considerations as submitted by the Appellant. 2.3 It is submitted that in the facts and the circumstances of the case, and in law, no such addition was called for. 2.4 Without prejudice to the above, assuming - but not admitting - that some addition was called for, it is submitted that the computation of the addition made by the A.O. is not in accordance with the law, is arbitrary and excessive. i) The order passed by the Ld. CIT (A) is against law, equity & justice. ii) The Ld. A.O. has erred in law and on facts in upholding validity of reopening of assessment. iii) The reopening of assessment is bad and illegal as the reasons does not reflect that the income having escaped assessment is more than rupees one lakh or likely to be more than rupees one lakh as laid down under the provisions of s. 149(1)(b) of Act as reopening is made beyond four years. iv) The Ld. CIT(A) has erred in law and on facts in upholding addition of Rs. 10,00,000/~ The appellant Craves liberty to add, amend, alter or modify all or any grounds of appeal before final appeal. 3. Before going to the merits of the case, the ld.counsel for the assessee, at the outset itself submitted that the primary grievance of the assessee is that the ld.CIT(A) has passed the impugned order ITA No.329/Ahd/2022 3 without considering the written submissions though the same was filed during the appellate proceedings. 4. Facts in brief are that assessment order under section 143(3) of the Act was finalized by the AO by making an addition of Rs.20,06,632/- under section 68 of the Act. This addition was made by the AO on the basis that the assessee has made cash deposits in Axis Bank, Bhavnagar during the demonetization period. The assessee explained that this cash was generated out of cash sales made during this period, and he submitted summary of cash deposits for Asst.Year 2016-17, 2017-18 and 2018-19 along with stock register, purchase register, sales register, transport receipts and other documents to prove the genuineness of the cash sales. However, the AO has not satisfied with the explanation and the details furnished by the assessee, and he noted certain consistencies in cash deposits, sales and purchases, which he noticed at page no.4 and 5 of the assessment order. Thus, the ld.AO made the impugned addition to the returned income of the assessee. 5. This action of the AO was challenged before the ld.CIT(A). However, the ld.CIT(A)/NFAC maintained the action of the AO by holding that the assessee did not furnish any satisfactory documentary evidence to explain the source of cash deposited in the bank. He further observed that the assessee had not complied with notices sent for hearing even once nor filed any written submission, and therefore, he held that in the absence of the written submissions and evidences, it was not tenable to accept the order of the AO as erroneous and the impugned cash deposits in the bank as genuine. Again aggrieved, the assessee is now before the Tribunal. ITA No.329/Ahd/2022 4 6. Before me, the ld.counsel for the assessee submitted that the ld.CIT(A) while making the observation has not verified the submission given by the assessee vide acknowledgement no.592873131210422 in the e-proceedings with the ld.CIT(A). He drew my attention to para-6 (page no.7) of the CIT(A), which reads as under: “6. DECISION: -1 have gone through and duly considered the facts emanating from grounds of appeal and statement of facts and other facts of the case available on the record. From the documents available on record, it is found that the appellant didn't furnish any satisfactory documentary evidence to explain the source of cash deposited in the bank account during the A.Y. 2017-18. During the appellate proceedings, the appellant has not complied for even once nor filed any written submission. In absence of the written submission and evidence, it remained to be unexplained as to how the AO's order is erroneous. If the appellant claims that the assessment order was objectionable he should have provided supporting arguments of evidences. The appellate proceedings are first line of remedy to those who think that the injustice has been done by the AO. However, the appellant failed to avail the same by non-complying. Therefore, it is assumed that the appellant is not interested in pursuing his own appeal. Moreover, the appellant failed to bring on records any facts or documents which can explain how the order of the AO is erroneous, In the case of Anil Goel Vs CIT, [2008] 306 ITR 212 (Punjab & Haryana), the Hon'ble High Court held as under: "4. It is thus obvious on the plain language of section 250 of the Act that date and place of hearing was duly fixed. The assessee was a/so given notice along with notice to the Assessing Officer. The assessee had ample opportunity to make his submissions by appearing in person or through authorised representative. Despite fixing the case for seventeen hearings, no one had put in appearance nor any justifiable reason for adjournment was given. 5. The Tribunal also found that non-recording of reasons in support of order passed by CIT(A) would not amount to committing any illegality because the CIT(A) has adopted the reasoning advanced by the Assessing Officer and has upheld his order. The judgment of this Court, in the case of Popular Engineering Co. v. ITAT [2001] 248 ITR 5771, has been rightly relied upon wherein it has been observed that elaborate reasons need not be recorded by the CIT(A) as has been done by the Assessing Officer. The reasons are required to be clear and explicit indicating that the authority has considered the issue in controversy. If the appellate/revisional authority has to affirm such an order it is not required to give separate reasons which may be ITA No.329/Ahd/2022 5 required in case the order is to be reversed by the appellate/revisional authority." Accordingly, I agree with the reasons given by the AO and confirm the addition of Rs.20,06,632/- on account of unexplained cash credit u/s 68 of the IT Act,1961. The Grounds of appeal are hereby DISMISSED.” 7. The assessee has also filed copy of the acknowledgement as well as written submissions down-loaded from the e-portal of the Income Tax Department demonstrating that assessee had in fact filed detailed submissions along with voluminous attachments in support of his case, therefore, the impugned order of the ld.CIT(A) is unjustified and liable to be set aside and remanded back to the ld.CIT(A) for fresh order after considering submissions already made by the assessee during the e-proceedings. 8. The ld.DR, on the other hand, defended the orders of the Revenue authorities and prayed for confirming the same. 9. I have considered rival submissions; gone through the impugned orders of the Revenue authorities, as also, written submissions filed by the assessee during the e-proceedings in appellate stage. As the facts emerge from the record, the observation of the ld.CIT(A) that the assessee has not filed written submissions to defend his case was factually incorrect. The assessee, I find, in fact, did file written submissions during e- proceedings vide acknowledgement cited (supra), a copy of the same was placed before me also. A perusal of order of the ld.CIT(A) would reveal that the ld.CIT(A) passed the ex parte order without considering written submissions filed by the assessee during the appellate proceedings. Thus, I am of the view that the assessee deserves hearing on merit. At the same time, I also note, the assessee has been provided with as many as six opportunities for compliance of the notices by the ld.CIT(A), but not responded. ITA No.329/Ahd/2022 6 However, based on the fact that impugned order was passed without considering written submissions filed by the assessee, in the interest of justice the grounds of appeal raised by assessee are set aside back to the file of NFAC/Ld. CIT(A) to re-adjudicate the same on merit after providing fair opportunity of hearing to the assessee. The assessee is also directed to appear before NFAC/Ld. CIT(A) as and when the date of hearing and to provide all necessary evidence and information without any further delay and not to seek adjournment without any valid reasons. In the result, appeal of assessee is allowed for statistical purposes in above terms. 10. In the result, the appeal of the assessee is allowed in the above terms. Order pronounced in the Court on 24 th March, 2023 at Ahmedabad. Sd/- (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad,dated 24/3/2023