NAYANKUMAR S SONAWANE, Mumbai V. CIT(A)- 48, Mumbai

ITA 4877/MUM/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 6767 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 21-07-2019
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained expenditure; Opportunity of being heard; Additional evidence
• Section: 69C; 142(1); 143(2)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL “SMC” Bench, Mumbai Shri Shamim Yahya (AM) I.T.A. No. 4877/Mum/2019 (A.Y. 2013-14) Nayankumar S. Sonawane Room No. 4, Devidas Koli Chawl, Mukund Nagar Dharavi, Mumbai-400 017. PAN : AWQPS1877F Vs. CIT(A)-48 Old CGO Building 10 th Floor Pratishtha Bhavan M.K. Road Mumbai-400 020. (Appellant) (Respondent) Assessee by None Department by Shri T. Sankar Date of Hearing 11.01.2022 Date of Pronouncement 16.03.2022 O R D E R This appeal by the assessee is directed against the order of learned CIT(A) 30.4.2019 pertaining to A.Y. 2013-14. 2. The grounds of appeal read as under : 1. The Ld. CIT(A) erred on facts, in law and in the circumstances of the case in not giving a reasonable and sufficient opportunity of being heard before passing the order. 2. The Ld. CIT(A) erred on facts, in law and in the circumstances of the case in rejecting the application under Rule 46A for admission of additional evidence. 3. The Ld. CIT(A) erred on facts, in law and in the circumstances of the case in confirming addition of Rs.1,61,887/- as Unexplained Cash Credits u/s. 68 of the Income Tax Act to the returned income. The said amount represents the additions on account of cash deposits with the B ha rat Co-op. Bank Ltd. The appellant humbly prays that the said addition be deleted. 4. The Ld. CIT(A) erred on facts, in law and in the circumstances of the case in confirming addition of Rs.10,91,600/- as Unexplained Cash Credits u/s. 68 of the Income Tax Act to the returned income. The said amount represents the additions on account of cash deposits of Rs.6,71,600/- and Rs.4,20,000/- credited to the account held with Hindustan Co-op. Bank Ltd. The appellant humbly prays that the said addition be deleted. Nayankumar S. Sonawane 2 3. Brief facts are as under : The assessee had filed return declaring total income of Rs. 4,51,0207- on 21.06.2013 which was processed u/s. 143(1). The case was selected for scrutiny and notices u/s. 143(2) dated 30.09.2014 and u/s. 142(1) dated 07.09.2015 were issued and served on the assessee. The Assessing Officer made addition as following: i. on account of unexplained cash credits u/s. 68 Rs. 1,61,887/- ii. on account of unexplained expenditure/s. 69C Rs 2,43,780/- iii. Unexplained cash credits u/s. 68 Rs. 10,91,600/- was made, in the assessment order, by A.O. The entire addition was made by the Assessing Officer on the ground that the assessee has not responded to the explanation sought on the impugned issues. 4. Before learned CIT(A) the assessee filed additional evidence. There is no whisper on record as to when the Assessing Officer issued notice to the assessee and what was the time elapsed between non-compliance and whether any further opportunity was given or not. Learned CIT(A) expounded upon the language and expression used in Rule 46A and proceeded to reject the assessee’s request of filing additional evidence and upheld the Assessing Officer’s order. 5. Against this the assessee is in appeal before the ITAT. 6. I have heard learned Departmental Representative and perused the records. I note that when interest of substantial justice is pitted against the technicalities Higher courts have always held that it is the interest of substantial justice that should prevail. In the facts and circumstances, it is clear that addition has been made by the Assessing Officer only on the ground that the assessee has not responded to the explanation sought. No detail whatsoever has been given as to when the Assessing Officer asked the assessee to give explanation and what time elapsed when there was no compliance. Nayankumar S. Sonawane 3 Whether the Assessing Officer issued any further notice or not. In these circumstances learned CIT(A)’s order of exposition on Rule 46A is totally uncalled for. In the interest of justice, I remit the matter to the file of the Assessing Officer. The Assessing Officer is directed to consider the issue afresh in the light of the submissions now being made by the assessee. Needless to mention that the assessee should be granted adequate opportunity of being heard. 7. In the result, assessee’s appeal is allowed for statistical purposes. Order pronounced in the open court on 16.3.2022. Sd/- (SHAMIM YAHYA) ACCOUNTANT MEMBER Mumbai; Dated : 16/03/2022 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. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai