YOGESHKUMAR OMPRAKASH AGARWAL, BORIVALI EAST V. WARD 32(1)(7), BKC BANDRA

ITA 3428/MUM/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0156 (ITAT-MUMBAI)
• Duration Of Justice: 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 12-08-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 02-07-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: YUSUF MITHI
• Keywords: Business income; Condonation of delay
• Section: 250; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, “F” BENCH MUMBAI BEFORE SHRI BR BASKARAN, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 3428/MUM/2024 (A.Y.2017-18) Faisal Fasuddin Kutubuddin Sayed Khan, Cozy Home Oasis Apt, harvindar Rd, Opp-7, Bunglow, Andheri (West) Mumbai-400061. Vs. ITO, Ward – 24(1)(3), 606, 6 th Floor, Piramal Chamber, Lalbaug Parel Mumbai-400012. PAN/GIR No. DYTPK1645H ( /Appellant) ( /Respondent) Appellant by Shri Yusuf Mithi.AR Respondent by Shri Ankush Kapoor, CIT DR स ु नव ई /Date of Hearing 15.07.2024 घोषण /Date of Pronouncement 23.07.2024 ORDER PER PAVAN KUMAR GADALE, JM: “ The assessee has filed the appeal against the order of the National Faceless Appeal Centre, Delhi / CIT(A) passed u/sec 250 of the Act. 2. At the time of hearing, the Ld.AR of the assessee submitted that there is a delay in filing the appeal before the Hon’ble Tribunal and filed an application for 2 ITA No. 2819/MUM/2024 (A.Y.2017-18) Film Set Light Spot Welfare Society, Mumbai condonation of delay . Whereas, the facts mentioned in the affidavit are reasonable and the Ld.DR has no specific objections. Accordingly, we condone the delay and admit the appeal. The assessee has raised the following grounds of appeal: “1.The Learned Commissioner of Income Tax Appeals has erred in treating Cash deposited Rs 11,97,600 and cheque deposited as income under section 69A inspite of mentioning everything in the grounds of appeal. The explanation for cash and cheques deposited were given in the grounds as under a. The cash was deposited out of withdrawal from 1.4.2016 to 7.11.2016 of Rs around 1100000 and therefore could not be treated as income b. The cheques deposited were amount received from debtors and at the same time many payments were done to sundry creditors so profit element should have been treated as income c. Out of the cash deposited Rs. 8,00,000 on 12.11.2016 the payment was done for surrender of tenancy rights which is supported by agreement and therefore for genuine purpose d. The additions should have not been made under section 69A rws section 115BBE AT 60 per cent but as normal business income 2. The Learned Commissioner of Income Tax Appeals has erred in confirming addition made under sect 69A: Unexplained money The cash deposited and cheque deposited itself does not mean it is unexplained money and tax at 60 per cent under section 115BBE. The cash withdrawal from 1.4.2016 to 8.11.2016 was Rs 1287100 and cash was deposited out of the same. The cheques deposited were receipts from goods sold from which the payment to creditors were done It could have been assessed as Business Income at some percentage of Profit. Section 69A is not applicable at all and consequential edu cess and Interest is also” 3. The brief facts of the case are that, the assessee is a an individual. The Assessing Officer (AO) based on the information from AIMS Module of ITBA found that the assessee has made cash deposits in the bank account 3 ITA No. 2819/MUM/2024 (A.Y.2017-18) Film Set Light Spot Welfare Society, Mumbai during the demonetization period amounting to Rs. 10,13,000/- in the State Bank of India and the assessee has not filed the return of income and the notice u/sec 142(1) of the Act along with questionnaire was issued and there was no compliance. Whereas the A.O found that the asssessee has made deposits aggregating to Rs. 55,35,279/- including the cash deposit of Rs. 11,97,600/- in the bank account in the F.Y.2017-17 and explanations were called to substantiate the deposits. Since, no explanations/details were filed, the AO considering the information available on record invoked the provisions of Sec. 144 of the Act and made addition of deposits and assessed the total income of Rs. 53,35,280/- and passed the order u/sec 144 of the Act dated 27.11.2019. 4. Aggrieved by the order, the assessee has filed an appeal before the CIT(A), whereas the CIT(A) has considered the grounds of appeal, statement of facts and findings of the AO and has issued notices of hearing and since there was no proper compliance by the assessee to notices. Therefore the CIT(A) considering the information on record has confirmed the action of the A.O and dismissed the appeal. Aggrieved by the order of the CIT(A), the assessee has filed an appeal before the Hon'ble Tribunal. 5. At the time of hearing, the Ld.AR submitted that the CIT(A) has erred in confirming the action of the Assessing officer overlooking the information of the assessment 4 ITA No. 2819/MUM/2024 (A.Y.2017-18) Film Set Light Spot Welfare Society, Mumbai proceedings. Further the assessee has a good case on merits and shall substantiate with the material evidences and prayed for an opportunity to explain before the lower authorities. Per Contra, the Ld. DR supported the order of the CIT(A). 6. We heard the rival submissions and perused the material on record. Prima-facie the CIT(A) has passed the order considering the fact that there is no proper compliance in spite of providing adequate opportunity of hearing and the notices were issued. Therefore, the CIT(A) was of the opinion that the assessee is not interested in prosecuting the appeal and dismissed the appeal ex-parte confirming the action of the assessing officer. The Ld. CIT(A) has issued the notices of hearing but there was no due compliance and thus the Ld.CIT(A) came to a conclusion that the assessee is not interested and decided the appeal based on the information available on record. Whereas the assessee has raised grounds of appeal challenging the additions made by the A.O and there could be various reasons for non appearance which cannot be overruled. Therefore, considering the facts and principles of natural justice, we shall provide with one more opportunity of hearing to the assessee to substantiate the case with evidences and information subject to payment of cost of Rs.2000/- to the Income Tax Department within one month from the date of receipt of 5 ITA No. 2819/MUM/2024 (A.Y.2017-18) Film Set Light Spot Welfare Society, Mumbai the order and produce the proof of payment. Accordingly, set aside the order of the CIT(A) and remit the entire disputed issues to the file of the CIT(A) to adjudicate afresh and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information for early disposal of the Appeal. Accordingly, we allow the grounds of appeal of the assessee for statistical purposes. 7. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 22.07.2024. Sd/- Sd/-d/- (BR BASKARAN) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 22/07/2024 KRK Copy of the Order forwarded to: 1. The Appellant, 2. The Respondent 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Dy./Asstt. Registrar)ITAT, Mumbai