Shri Ramjibhai Cheldas Patel, Unjha V. The Income tax Officer, Patan Ward - 4, Patan

ITA 464/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9143 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-01-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 23-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S V AGARWAL AR SHRI N K GOEL
• Assessee Lawyers: OTHERS VS ITO ASST YEAR
• Keywords: Opportunity of being heard; Additional evidence; Reasonable cause
• Section: 271(1)(c); 142(1); 133(6); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SL. NOS. ITA NO(S) ASSTT. YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 369/AHD/2017 2008-09 BHAVNABEN NITINBHAI PATEL, SARVODAYA NAGAR, OPP. AMBICA NAGAR, UNJHA-384170 PAN NO.APVPP7359D ITO PATAN, WARD-4, UNJHA 2 ND FLOOR, CHINMAY CORPORATE HOUSE, DEESA HIGHWAY, PATAN-384265 2. 420/AHD/2017 2008-09 NITINBHAI RAMJIBHAI PATEL, SARVODAYA NAGAR, OPP. AMBICA NAGAR, UNJHA-384170 PAN NO.APWPP8323G --DO-- 3. 418/AHD/2017 2008-09 RAMJIBHAI CHELDAS PATEL, SARVODAYA NAGAR, OPP. AMBICA NAGAR, UNJHA-384170 PAN NO.APVPP8236R --DO-- 4. 464/AHD/2017 2008-09 --DO-- --DO-- 5. 465/AHD/2017 2008-09 NITINBHAI RAMJIBHAI PATEL, SARVODAYA NAGAR, OPP. AMBICA NAGAR, UNJHA-384170 PAN NO.APWPP8323G --DO-- 6. 385/AHD/2017 2008-09 BHAVNABEN NITINBHAI PATEL, SARVODAYA NAGAR, OPP. AMBICA NAGAR, UNJHA-384170 PAN NO.APVPP7359D --DO-- 7. 419/AHD/2017 2008-09 RAMIBEN RAMJIBHAI PATEL, SARVODAYA NAGAR, OPP. AMBICA NAGAR, UNJHA-384170 PAN NO.APVPP8330G --DO-- 8. 466/AHD/2017 2008-09 --DO-- --DO-- - 2 - ITA NOS.369,420,418,464,465,385,419&466/A HD/2017 BHAVNABEN NITINBHAI PATEL & OTHERS VS.ITO ASST.YEAR 2008-09 APPELLANT BY : SHRI S. V. AGARWAL, AR RESPONDENT BY : SHRI N. K. GOEL, SR. DR DATE OF HEARING 08 .0 1 .20 20 DATE OF PRONOUNCEMENT 13.01.2020 O R D E R PER BENCH: ALL THE EIGHT APPEALS HAVE BEEN FILED BY THE ASSESS EE FOR A.Y. 2008-09, ARISE FROM ORDER OF THE CIT(APPEALS) GANDHINAGAR, AHMEDAB AD DATED 19.12.2016, IN PROCEEDINGS UNDER SECTION 144 R.W.S. 147 AND PENALT Y PROCEEDINGS UNDER SECTION 271(1)(C) DATED 20.12.2016OF THE INCOME TAX ACT, 19 61; IN SHORT THE ACT. FIRST FOUR GROUNDS OF APPEAL NOS. 419,466,420,465/A HD/2017 ARE PERTAINED TO DIFFERENT ASSESSEE OF THE GROUP. SINCE COMMON I SSUE ON IDENTICAL FACTS ARE INVOLVED IN THESE APPEALS THEREFORE FOR THE SAKE OF CONVENIENCE ALL THESE APPEALS ARE ADJUDICATED TOGETHER. BY TAKING THE CASE OF NI TINBHAI RAMJIBHAI PATEL BY ITA NO. 420/AHD/2017 AS A LEAD CASE AND ITS FINDING WIL L BE APPLICABLE TO ALL THE OTHER THREE CASES IN THE GROUP. 2. THE AO HAS RECEIVED AIR INFORMATION THAT ASSESSE E HAS DEPOSITED CASH AGGREGATING TO RS. 12,30,395/- IN HIS SAVINGS BANK ACCOUNT WITH KARUR VYSYA BANK LTD. THEREAFTER, A NOTICE UNDER SECTION 148 W ERE ISSUED TO THE ASSESSEE ON 25.03.2015, HOWEVER, THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME IN A RESPONSE TO NOTICE ISSUED BY THE AO. EVEN THE ASSESSEE HAS NOT MADE ANY COMPLIANCE WITH THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT. THEREFORE, THE AO HAS COMPLETED THE ASSESSMENT UNDER SECTION 144 R.W.S. 1 47 OF THE ACT. THE AO HAS - 3 - ITA NOS.369,420,418,464,465,385,419&466/A HD/2017 BHAVNABEN NITINBHAI PATEL & OTHERS VS.ITO ASST.YEAR 2008-09 ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT TO TH E BANK AND COPY OF BANK STATEMENT FOR F.Y. 2007-08 RELEVANT TO THE ASSESSME NT YEAR UNDER CONSIDERATION WAS OBTAINED. ON VERIFICATION OF THE BANK STATEMEN T THE CASH DEPOSITED AS REPORTED IN THE AIR INFORMATION WAS FOUND TO BE CORRECT. TH E AO HAS ALSO ISSUED SHOW- CAUSE NOTICE DATED 24.09.2015 TO THE ASSESSEE TO SH OW-CAUSE AS TO WHY THE CASH DEPOSIT IN THE BANK ACCOUNT AMOUNTING TO RS. 12,30, 395/- SHOULD NOT BE ADDED TO HIS TOTAL INCOME. HOWEVER, THE ASSESSEE HAS FAILED TO FURNISH ANY EXPLANATION. CONSEQUENTLY, THE AO HAS TREATED THAT ABOVE REFERRE D CASH DEPOSIT OF RS. 12,30,395/- AS UNEXPLAINED CASH DEPOSIT AND ADDED T O THE TOTAL INCOME OF THE ASSESSEE. 3. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE L D. CIT(A). DURING THE COURSE OF APPELLATE PROCEEDING BEFORE T HE LD. CIT(A) THE ASSESSEE HAS EXPLAINED THAT CASH DEPOSIT WERE MADE OUT OF AGRICULTURAL INCOME EARNED BY THE ASSESSEE AS WELL AS CASH WITHDRAWAL F ROM BANK UTILIZED IN MAKING SUBSEQUENT DEPOSIT IN THE BANK ACCOUNT. THE AO VID E REMAND REPORT HAS CONTRADICTED THE EXPLANATION OF THE ASSESSEE STATIN G THAT THE ASSESSEE ALONG WITH TWO PERSONS HAD OWNED AGRICULTURAL LAND OF 2.57 BIG HAS AS PER WHICH ASSESSEES SHARE OF LAND COME TO ONLY 0.85 BIGHAS, THEREFORE, EARNING OF AGRICULTURAL INCOME TO THE EXTENT OF RS. 5,12,030/- CANNOT BE ACCEPTED. C ONSIDERING THE AFORESAID FACTS AND NO BASIS OF SHOWING OPENING CASH BALANCE OF RS. 68,450/- THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 4. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE US THE ASSESSEE HAS FILED ADDITIONAL EVIDENCES STATING THAT HE HAS ALSO BEEN IN THE BUSINESS OF SHARE TRADING - 4 - ITA NOS.369,420,418,464,465,385,419&466/A HD/2017 BHAVNABEN NITINBHAI PATEL & OTHERS VS.ITO ASST.YEAR 2008-09 AND FURNISHED SHARE BROKERS NOTES AND BILLS FOR PUR CHASED/SALE OF SHARES FROM PAGE NO. 1 TO 17 AS PLACED IN THE PAPER BOOK. FURTHER T HE ASSESSEE HAS SUBMITTED THAT HE HAS ALSO FILED REJOINDER TO THE REMAND REPORT OF TH E AO BEFORE THE LD. CIT(A) AND SAME HAS NOT BEEN OBJECTIVELY CONSIDERED. THE LD. COUNSEL HAS FURTHER CONTENDED THAT LD. CIT(A) HAS ERRORED IN CONFIRMING THE EX-PA RTE ASSESSMENT ORDER UNDER SECTION 144 MADE BY THE AO AS DUE TO ILLNESS IN THE FAMILY THE ASSESSEE COULD NOT MAKE COMPLIANCE BEFORE THE AO. 5. ON THE OTHER HAND, THE LD. DR HAS SUPPORTED THE ORDER OF CIT(A). WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATER IAL ON RECORD CAREFULLY. DURING THE COURSE OF ASSESSMENT PROCEEDING THE AO O BSERVED FROM THE AIR INFORMATION THAT ASSESSEE HAD MADE CASH DEPOSIT OF RS. 12,30,395/- AND THE SAME WAS REMAINED UNEXPLAINED AS ASSESSEE HAD NOT MADE A NY COMPLIANCE AT THE LEVEL OF AO. AT THE APPELLATE STAGE BEFORE THE LD. CIT(A) T HE ASSESSEE HAD FURNISHED ADDITIONAL EVIDENCES WHICH WERE NOT SUBMITTED BEFOR E THE AO. THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE AFTER CONS IDERING THE REMAND REPORT OF THE AO THAT BECAUSE OF SMALL HOLDING OF LAND BY THE ASS ESSEE EARNING OF AGRICULTURAL INCOME TO THE EXTENT OF RS. 5,12,030/- CANNOT BE AC CEPTED. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE U S THE LD. COUNSEL HAS FURNISHED ADDITIONAL EVIDENCES CLAIMING THAT ASSESS EE HAS ALSO EARNED INCOME FROM SHARES TRADING AND THE NECESSARY DETAIL AND DOCUMEN T WERE PLACED IN THE PAPER BOOK. THE ASSESSEE HAS ALSO CONTENDED THAT HIS REJ OINDER TO THE REMAND REPORT WAS NOT OBJECTIVELY CONSIDERED BY THE LD. CIT(A). - 5 - ITA NOS.369,420,418,464,465,385,419&466/A HD/2017 BHAVNABEN NITINBHAI PATEL & OTHERS VS.ITO ASST.YEAR 2008-09 DURING THE COURSE OF HEARING THIS APPEAL TO SUBSTA NTIATE THE REASONABLE CAUSE FOR NOT MAKING THE SUBMISSION AT THE TIME OF HEARIN G BEFORE THE LOWER AUTHORITIES, THE LD. COUNSEL STATED THAT THERE WAS NO MALA FIDE INTENTION ON THE PART OF THE ASSESSEE FOR NOT MAKING PROPER COMPLIANCE BEFORE TH E LOWER AUTHORITY. THE LD. COUNSEL HAS REQUESTED FOR GRANTING ONE MORE OPPORTU NITY AND AGREED OF PAYING REASONABLE COST OF RS. 12,500/- PER CASE TO THE INC OME TAX DEPARTMENT FOR WASTING PRECIOUS TIME AND RESOURCES OF THE AO AND THE LD. C IT(A). AFTER CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES TO DECIDE THE ISSUE O N MERIT WE ARE OF THE VIEW THAT THE ADDITIONAL EVIDENCES AND REJOINDER FILED BY THE ASSESSEE ARE REQUIRED TO BE VERIFIED/EXAMINED. UNDER THE CIRCUMSTANCES OF THE CASE SUBJECT OF DEPOSITING A SUM OF RS, 12,500/- PER CASE TOTALING OF RS. 50,000 /- WITH THE INCOME TAX DEPARTMENT ONE ADDITIONAL OPPORTUNITY IS GIVEN TO T HE ASSESSEE TO SUBMIT THE CASE ON MERITS BEFORE THE AO IT WILL MEET THE END OF JUS TICE. IN VIEW OF THE FACT AND CIRCUMSTANCES AS WE HAVE ADMITTED THE ADDITIONAL EV IDENCES THE CASE IS RESTORED TO THE FILE OF THE AO FOR DECIDING A FRESH IN ACCORDAN CE WITH LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE ASSESSEE SHALL PRODUCE A COPY OF CHALLAN DEPOSITING THE COST IMPOSED BEFORE THE AO WITHIN 30 DAYS OF RECEIPT OF THIS ORDER. THEREFORE, WE RESTORE ALL T HE FOUR CASES TO THE FILE OF THE AO FOR DECIDING A FRESH AFTER EXAMINATION AND VERIFICA TION OF THE ADDITIONAL EVIDENCES/OTHER DETAIL TO DECIDE THIS CASE A FRESH AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. THEREFORE, ALL THESE FOUR APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ITA NOS. 464/418/369/385/AHD/2017(A.Y. 2008-09):- - 6 - ITA NOS.369,420,418,464,465,385,419&466/A HD/2017 BHAVNABEN NITINBHAI PATEL & OTHERS VS.ITO ASST.YEAR 2008-09 6. ALL THESE FOUR APPEALS ARE PERTAINED TO THE PENA LTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT ON THE QUANTUM ADDI TION MADE AS ADJUDICATED ABOVE IN THIS ORDER. SINCE WE HAVE RESTORED THE QU ANTUM APPEAL TO THE FILE OF ASSESSEE FOR DECIDING A FRESH AS ABOVE THEREFORE PE NALTY LEVIED IN THIS CASE HAS BECOME INFRUCTUOUS AT THIS STAGE. THE AO MAY DECID E THE PENALTY ISSUES IN ALL THE FOUR CASES A FRESH ON THE OUTCOME OF THE QUANTUM AS SESSMENT. THEREFORE, THESE FOUR APPEALS ARE ALSO ALLOWED FOR STATISTICAL PURPO SE. 7. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/01/2020 SD/- SD/- ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 13/01/2020 TANMAY, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ) ( / THE CIT(A) 5. , '#$$ / DR, ITAT, AHMEDABAD 6. %& '( / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) !'# / ITAT, AHMEDABAD