IDRIS MUSA PATEL, BHARUCH V. ITO, WARD-1(5), BHARUCH

ITA 473/SRT/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0586 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-08-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 15-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 68; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A.L.SAINI, AM आयकरअपीलसं./ITA No.473/SRT/2019 (िनधाŊरणवषŊ / Assessment Year: (2011-12) (Virtual Court Hearing) Idris Musa Patel Nr. Panchayat,Kalak, Jambusar, Dist. Bharuch-392150 Vs. Income Tax Officer, Ward-1(5), Bharuch 2 nd Floor, Harikunj Building, Above Bank of Baroda, Station Road, Bharuch ̾थायीलेखासं./जीआइआरसं./PAN/GIR No.: AGOPP 2004 P (Appellant) (Respondent) Assessee by : Shri Mukund Bakshi, C.A Respondent by : Shri Vinod Kumar, Sr-DR सुनवाई की तारीख/ Date of Hearing : 16/08/2022 घोषणा की तारीख/Date of Pronouncement : 17/10/2022 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to assessment year 2011-12, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-3, Vadodara, [for short to as ‘Ld.CIT(A)’] dated 25.09.2019, which in turn arises out of an order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (in short ‘the Act’), dated 26.03.2014. 2. The grounds of appeal raised by the assessee are as follows: “1.The Ld. CIT(A)-3, Vadodara has erred in law and in facts in confirming an addition of Rs.40,73,000/- u/s 68 of the I.T. Act ignoring the fact that- (a) An amount of Rs.11,33,000/- out of Rs.40,73,000/- was received / credited it he earlier years and not in the year under consideration, and (b) For the balance amount of Rs.29,40,000/-, the appellant had furnished all the evidences to establish the identity, genuineness and creditworthiness The addition of Rs.40,73,000/- is prayed to be deleted. 2. Your appellant craves liberty to add, alter, delete or substitute any of the grounds of appeal herein above contained”. Page | 2 ITA No.473/SRT/2019 /A.Y. 11-12 Idris Musa Patel 3. Succinct facts are that assessee is an individual and partner in partnership firms. His main source of income is share of profit, interest and remuneration, from partnership firms. The ground raised by the assessee is with regard to the addition made by the assessing officer to the tune of Rs.47,54,500/- on account of cash credit. During the assessment proceedings, the Assessing Officer noticed that assessee had taken unsecured loan to the extent of Rs.47,54,500/-, however, assessee failed to prove identity, creditworthiness and genuineness of the transaction, therefore Assessing Officer was not convinced with the details furnished by assessee, hence addition of Rs.47,54,500/- was made in the hands of the assessee. 4. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before Ld. CIT(A), who has deleted the addition to the tune of Rs.6,81,500/-, however, confirmed the balance addition of Rs.40,73,000/- (Rs.47,54,500 - Rs.6,81,500). 5. Aggrieved by the order of Ld. CIT(A), the assessee is in further appeal before us. 6. Learned Counsel for the assessee, submitted before us, additional evidences to adjudicate the balance addition of Rs.40,73,000/- (Rs.47,54,500- Rs.6,81,500), as confirmed by the ld CIT(A). An application of the assessee, for admission of additional evidences, under Rule 29 of the ITAT Rules 1963, is reproduced below: “The appeal of the appellant for the A.Y 2011-12 is pending disposal before the Hon'ble Tribunal. In the appeal filed, the only in dispute is the addition of the loans taken u/s 68 of the Income Tax Act. The addition is made primarily on account of non-satisfaction of the Ld. A.O / Ld. CIT(A) with regard to the creditworthiness of the lenders. The appellant did furnish the source of the loans and genuinely believed that the furnishing of such evidence / particulars would discharge the onus of the appellant. The lenders were unwilling to furnish any further information such as their bank statements, other information like their engagement with other partnership firms, etc. due to which the requisite information could not be compiled in the course of assessment as well as in first appellate proceedings. After receipt of the first appeal order, the appellant was able to convince the lenders about the necessity of additional documents / evidences to substantiate his case and it is only now that the appellant was able to obtain the same. Page | 3 ITA No.473/SRT/2019 /A.Y. 11-12 Idris Musa Patel It is in these circumstances that the additional evidences as certified in the index to paper book (as enclosed) is now furnished with a prayer to admit the same.” 7. Thus, Ld. Counsel contended that in the interest of justice, the additional evidences should be admitted and matter may be remitted back to the file of Assessing Officer for afresh adjudication. 8. On the other hand, Ld. Sr. DR for the Revenue opposed the plea taken by ld Counsel and stated that assessee has not explained the reasons that how and why assessee could not file these additional evidences before the assessing officer. What was prevented to the assessee to submit these additional evidences before the lower authorities, has not been explained by the ld. Counsel, therefore, these additional evidences should not be admitted. 9. Per contra, Ld. Counsel submitted that most of the Lenders are NRI, who reside outside India and during the assessment proceedings and appellate proceedings; they were not ready to provide their respective bank details and other documents to the assessee. However, later on, continuous efforts was made by the assessee and now these Lenders have provided the Bank details and documents to the assessee. 10. We have heard both the parties and perused the materials available on record. We note that ld. Counsel submitted before us, the following additional evidences, Viz: (i) The copy of bank statement of the account with SBI, vide paper book (P.B.) pages No.19-21. (ii) The copy of bank statement with bank of India, vide P.B. pages 24-31. (iii) The copy of Notarized Development Agreement dated 14.07.2009 between M/s Royal Enterprise as purchaser and Ayashaben daughter of Aslambhai Patel, Rahimaben, Nazama and Jaibun as seller, vide P.B. pages 50-58. (iv) The copy of return of income, computation of total income and P&L a/c and balance-sheet of M/s Royal Enterprise for the year ended on 31.03.2011 A.Y. 2011-12, vide P.B. pages 59-62. (v) The copy of bank statement with HDFC Bank Ltd held by M/s Royal Enterprise for the F.Y. 2010-11 vide P.B. page 63.(vi) The English translation of Development Agreement dated 13.07.2009, vide P.B. pages 68-76. Page | 4 ITA No.473/SRT/2019 /A.Y. 11-12 Idris Musa Patel 11. We note that lower authorities did not avail the benefit to examine these additional evidences. The discretion lies with the Tribunal to admit these additional evidences in the interest of justice, in accordance with Rules-29 of the ITAT Rules 1963, for adjudication of the matter. The assessee has explained the facts and circumstances, that Lenders were NRI and they furnished these evidences to the assessee at a very later stage, and these evidences are essential to adjudicate the issue under consideration, therefore we admit these additional evidences. However, we note that these additional evidences were neither examined by the assessing officer nor by the ld CIT(A), hence an opportunity should be granted to the lower authorities to examine these additional evidences. therefore, we set aside the order of Ld. CIT(A) and remit the issue back to the file of Assessing Officer for de novo adjudication. Needless to say that assessee should be provided adequate opportunity of being heard and assessee is at liberty to produce these documents and evidences, which are necessary for adjudicating the issue afresh before Assessing Officer. Therefore, we allow assessee`s appeal for statistical purposes in above terms. 12. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 17/10 /2022 by placing the result on the Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat/िदनांक/ Date: 17/10/2022 Dkp Outsourcing Sr.P.S./SAMANTA Copy of the Order forwarded to 1. The Assesseep 2. The Respondent 3. The CIT(A) 4. Pr.CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat