Mohammed Moshin, New Delhi V. DCIT, Central Circle, , Ghaziabad

ITA 35/DEL/2019

AI Insights

The case involves an appeal by Mohammed Moshin against the order of the Learned Commissioner of Income Tax (Appeals)-IV, Kanpur, which confirmed an addition of Rs.11,00,000 made by the Assessing Officer on account of alleged unexplained cash under section 69A of the Income Tax Act, 1961. The appellant contested that the cash was duly accounted for and declared in tax returns. The CIT(A) did not admit additional evidences submitted during the appellate proceedings, leading to the current appeal. The Tribunal found that the CIT(A) failed to provide a reasoned decision on the admissibility of the additional evidences and thus set aside the CIT(A)'s order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130773 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: E
• Next Hearing Date: 21-02-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 02-01-2019
• Laws Referred To: Income Tax Act, 1961, Income-tax Rules, 1962
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Additional evidence
• Section: 132; 143(3); 69A

Judgement Text

Page 1 of 5 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘E’: NEW DELHI BEFORE, SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.35/Del/2019 (ASSESSMENT YEAR 2016-17) Mohammed Moshin 20, Fire Bridge Lance Connaught Place New Delhi-110 001 PAN-AUPPM 5375H Vs. DCIT-CC, Ghaziabad (Appellant) (Respondent) Appellant by None Respondent by Ms. Sarita Kumari, Commissioner of Income Tax, Departmental Representative (“CIT- DR” for short) ORDER PER ANADEE NATH MISSHRA, AM: (A) This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-IV, Kanpur [Ld. CIT(A)”, for short], dated 30/10/2018 for Assessment Year 2016-17. Grounds taken in this appeal are as under: “1. That on the facts and circumstances of the case and in law, the order dated 30.10.2018 passed by the Learned Commissioner of Income tax Appeals (“Ld. CIT(A)”) is erroneous and bad in law. ITA No.35/Del/2019 Mohammed Moshin Vs. DCIT Page 2 of 5 2. That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the addition of Rs.11,00,000 made by the Learned Assessing Officer (“Ld. AO”) on account of alleged unexplained cash u/s 69A of the Income tax Act, 1961 despite the fact that the Assessee has provided all documents and evidences to support his claim and complete source of the cash is explained. 3. That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the addition of Rs.11,00,000/- made by the Ld. AO despite the fact that the cash is duly accounted for in the books and has been declared in the income tax return and wealth tax return and wealth tax has been paid. 4. That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the addition of Rs.11,00,000/- made by the Ld. AO which has been made on the basis of surmises and conjectures. 5. That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in law in summarily rejecting the additional evidence filed by the Assessee under Rule 46A of the Income-tax Rules, 1962 and has violated the principle laid down in Rule 46A. 6. That the grounds of appeal are independent and without prejudice to each other. 7. The assessee craves leave to add, amend, alter, remove, rescind, forgo or withdraw any of the above grounds of appeal, which are without prejudice to one another, before or at the time of hearing of the appeal in the interest of natural justice.” (B) In this case, assessment order dated 29/12/2017 was passed by the Assessing Officer u/s 143(3) of Income Tax Act; wherein the assessee’s total income was assessed at Rs.2,77,99,465/- (rounded off to Rs.2,77,99,470/-) is against the returned income of Rs.2,66,99,465/-. In the aforesaid assessment ITA No.35/Del/2019 Mohammed Moshin Vs. DCIT Page 3 of 5 order, an addition of Rs.11,00,000/- was made on account of cash seized during the course of search operation u/s 132 of IT Act. The assessee filed appeal against the aforesaid assessment order in the office of the Ld. CIT(A). In the course of appellate proceedings, in the office of the Ld. CIT(A), the assessee submitted some additional evidences. The Ld. CIT(A) did not admit the additional evidences and dismissed the assessee’s appeal. This present appeal before us has been filed by the assessee against the aforesaid impugned appellate order dated 30/10/2018 of the Ld. CIT(A). (B) At the time of hearing before us, the assessee appellant was represented by none. In the absence of any representation from the assessee side, we heard the Ld. CIT-DR for Revenue. She relied on the impugned appellate order dated 30/10/2018 of the Ld. CIT(A) and the assessment order dated 29/12/2017. (C) On perusal of the impugned appellate order dated 30/10/2018 of the Ld. CIT(A), we find that the Ld. CIT(A) has not admitted additional evidences filed by the appellant assessee in the course of appellate proceedings in the office of the Ld. CIT(A). However, we find that the Ld. CIT(A) has not passed a speaking ITA No.35/Del/2019 Mohammed Moshin Vs. DCIT Page 4 of 5 order explaining why he did not admit the additional evidences. The additional evidences filed by the appellant assessee were rejected by the Ld. CIT(A) in a summary manner, merely stating that “the additional evidences submitted by the appellant cannot be entertained at this juncture, as the same is outside the purview of Rule 46A of the Income Tax Rules”. In the facts and circumstances of the present appeal before us, we are of the view, that the Ld. CIT(A) should have passed a speaking order explaining why he did not admit additional evidences. (C.1) In view of the foregoing; and in the facts and circumstances of the present appeal before us, we set aside the impugned appellate order dated 30/10/2018 of the Ld. CIT(A) and restore the issues in dispute to the file of the Ld. CIT(A) with the direction to pass a speaking order regarding admissibility or otherwise of the additional evidences. If the Ld. CIT(A) decides to admit the additional evidences in pursuance of this order, then he is further directed to decide the issues in dispute afresh through a speaking order after providing reasonable opportunity to the ITA No.35/Del/2019 Mohammed Moshin Vs. DCIT Page 5 of 5 assessee. All grounds of appeal are treated as disposed off in accordance with aforesaid directions. (C.1) For statistical purposes, the appeal is treated as partly allowed. Order pronounced in the Open Court on 28/02/2023. Sd/- Sd/- (CHALLA NAGENDRA PRASAD) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 28/02/2023 Pk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI