Anantkumar D Padhariya, Mehsana V. The ITO, Ward-1, Mehsana

ITA 749/AHD/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7488 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 28-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 147; 68; 144

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ SMC’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT And SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ITA No. 749/AHD/2019 िनधाᭅरण वषᭅ/Asstt. Year: 2008-09 Anantkumar D. Padhariya, 68, Safal Narayan Nagar, Modhera Road, Nr. Tahuko Party Plot, Mehsana. PAN: AOPPP2016L Vs. I.T.O., Ward-1, Mehsana. (Applicant) (Respondent) Assessee by : None Revenue by : Shri Kamlesh Makwana, Sr.D.R सुनवाई कᳱ तारीख/Date of Hearing : 11/11/2021 घोषणा कᳱ तारीख /Date of Pronouncement: 29/11/2021 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax(Appeals), Gandhinagar dated 24/10/2016 arising in the matter of assessment order passed under s. 144 r.w.s. 147 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2008-09. ITA no.749/AHD/2019 A.Y. 2008-09 2 2. The assessee has raised the following grounds of appeal: Being aggrieved on the order passed by the learned A.O. u/s.144 r.w.s 147 of the I.T. Act, 1961, the appellant prefer this appeal on the following grounds : (1) That the learned A.O. erred in law and on facts in considering income on the amount of cash deposited with ICICI Bank without verifying past record of the appellant of commission agent and tution income. The appellant is in the agency business and generating cash from different clients and from tution fees which is required to be considered in the interest of justice and to tax gross receipt is unwarranted and is not legal and such addition is required to be deleted to meet the ends of justice. The appellant reserves the right to add, alter, amend, change, modify and other or new grounds at the time of hearing or before that. 3. When the matter was called for hearing there was nobody appeared from the side of the assessee despite the fact that the notice intimating the date of hearing was duly served upon the assessee. This fact can be verified from the acknowledgement issued by the post office which is available on record. In the absence of any communication from the side of the assessee, we deem it fit to proceed to adjudicate the dispute involved in the appeal ex parte to the assessee and after hearing the learned DR of the Revenue. 4. The only issue raised by the assessee is that the learned CIT (A) erred in confirming the addition made by the AO for Rs. 21,93,503/- representing the deposit of cash in the bank as unexplained cash credit under section 68 of the Act. 5. The facts in brief are that the assessee in the present case is an individual and engaged in the activity of agency business and generating cash from different clients and from tuition fees. There was deposit of cash in the bank account of the assessee amounting to Rs. 21,93,503/- only. The AO sought an explanation from the assessee about the source of cash deposit but the assessee has not made any reply. Therefore the AO treated the same as unexplained cash credit under section 68 of the Act and added the same to the total income of the assessee. ITA no.749/AHD/2019 A.Y. 2008-09 3 6. Aggrieved assessee preferred an appeal to the learned CIT (A) who has confirmed the order of the AO. 7. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. 8. The learned DR before us vehemently supported the order of the authorities below. 9. We have heard the learned DR and perused the materials available on record. Undeniably, it is the onus upon the assessee to justify the source of cash deposited in the bank account. In the absence of, any reply from the assessee, the additions were made to the total income of the assessee by the authorities below. Admittedly, the assessee has miserably failed to discharge the onus cast upon him. But in our considered view, there are many penalties which are levied in a situation where the assessee does not cooperate/respond to the notices issued by the revenue authorities. Treating the deposit of cash in the bank account as income is also a kind of penalty which will certainly entail huge amount of tax liability upon the assessee. To our understanding, treating the entire amount of cash deposit as income of the assessee is not commensurate with the wrong doings of the assessee i.e. not availing the opportunity of being heard. Thus, in the interest of justice and fair play we are inclined to give one more opportunity to the assessee to represent his points of contention before the AO with respect to the cash deposited in the bank account. Hence, we set aside the issue to the file of the AO for fresh adjudication as per the provisions of law and after providing reasonable opportunity ITA no.749/AHD/2019 A.Y. 2008-09 4 of being heard to the assessee. Thus the ground of appeal of the assessee is allowed for the statistical purposes. 10. In the result appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 29/11/2021 at Ahmedabad. Sd/- Sd/- (RAJPAL YADAV) (WASEEM AHMED) VICE PRESIDENT ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 29/11/2021 Manish