D. SETHURAMAN, MADURAI V. INCOMETAX OFFICER CORP WARD3,MUD, MADURAI

ITA 450/CHNY/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6229 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2017-2018
• Appeal Filed On: 29-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 144; 69A

Judgement Text

आयकर अपीलीय अिधकरण, ‘सी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ एवं डॉ दȣपक पी. ǐरपोटे, लेखा सदèय के सम¢ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND Dr. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.: 450/CHNY/2022 िनधाᭅरण वषᭅ /Assessment Year: 2017-18 Shri D. Sethuraman, 12/22, Theni Main Road, Jainagar, Madurai – 625 106. PAN: BCMPS 8057A vs. The Income Tax Officer, Corporate Ward 3, Madurai. (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri T. Vasudevan, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri Hema Bhupal, JCIT स ु नवाई कȧ तारȣख/Date of Hearing : 17.08.2022 घोषणा कȧ तारȣख/Date of Pronouncement :17.08.2022 आदेश /O R D E R PER MAHAVIR SINGH, VICE PRESIDENT: This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC) in Appeal No.CIT(A), Madurai-1/10403/2019-20 dated 19.05.2022. The assessment was framed by the Income Tax Officer, Corp. Ward 3, Madurai for the assessment year 2017-18 2 ITA Nos.450/Chny/2022 u/s.144 of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 10.12.2019. 2. The only issue in this appeal of assessee is as regards to the order of CIT(A), NFAC, Delhi confirming the ex-parte order of the AO passed u/s.144 of the Act and even the order of CIT(A) is ex- parte and totally non-speaking. For this, assessee has raised various grounds numbering from 1 to 11, which need not to be reproduced. 3. We have heard rival contentions and gone through facts and circumstances of the case. We noted that the issue before AO and before CIT(A) was adjudication of cash deposit of Rs.1,24,63,765/- in the bank account of the assessee i.e., Bank of Baroda, Current account No.05550400000129, Ponmeni Branch, Madurai. The AO added the cash deposit u/s.69A of the Act and charged to tax u/s.115BBE of the Act. The AO based on relevant material gathered to the best of the judgment as the assessee failed to comply with the notice issued u/s.142(1) & 143(2). Before CIT(A) also, the assessee could not produce himself despite several opportunities provided by the CIT(A). This fact is noted by CIT(A) in para 5 as under:- 3 ITA Nos.450/Chny/2022 “5. The appellant has stated that notices during assessment were received by his employees and not brought to his notice. A perusal of assessment order shows the AO has given 5 opportunities to the appellant on 18.09.2018, 22.01.2019, 28.11.2019, 09.12.2019 and 13.12.2019 spread over a period of 2 years 3 months. However appellant did not avail of any opportunity. Therefore AO has given sufficient opportunity to the assessee and was justified in passing order u/s 144 of the Act. Grounds 1 &3 are dismissed” 3.1 We noted that the CIT(A) has just confirmed the action of AO in para 6 of his order, which reads as under:- “The appellant has contended that he has disclosed more than 8% of turnover as his income, therefore, no further addition can be made. He has stated that cash deposit represent cash sales and amounts withdrawn from bank. However it is seen that the appellant has not submitted any evidence or details, whatsoever to show that cash deposits emanate from sales proceeds. Also no details has been given to substantiate the source of above cash deposits. There is no basis to conclude that the source of cash deposits is sale proceeds. In view of the above facts, I find that AO was justified in making above addition u/s 69A after giving credit of opening cash balance. Grounds 4 to 7 are dismissed.” 4. From the above, we noted that there is no adjudication either by the AO or by the CIT(A), as the assessee could not represent before any of the authority may be due to his failure, But, in the interest of substantial justice, we feel that the assessee should be allowed one more opportunity and hence the matter should be restored back to the file of the CIT(A). We also noted that there is no adjudication at all by the CIT(A) and the assessee has raised specific ground that the cash deposit is out of the assessee’s 4 ITA Nos.450/Chny/2022 business transactions which the assessee has to prove. The assessee in his ground contended that the cash deposit in the bank overdraft account is partly from sale proceeds and partly from amounts withdrawn from the same bank account and redeposited to meet the bank norms to maintain the overdraft facility. But all this has to be verified viz-a-viz the evidences. As there is no adjudication by CIT(A), we set aside the order of CIT(A) and remand the matter back to his file for fresh adjudication. 5. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 17 th August, 2022 at Chennai. Sd/- Sd/- (डॉ दीपक पी. ᳯरपोटे) (Dr. DIPAK P. RIPOTE) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 17 th August, 2022 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ /CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF.