Balkrishna Gangaram Indure, Solapur V. Income-tax Officer, Ward - 3, Pandharpur

ITA 790/PUN/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 4983 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-11-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 21-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT CHAUDHURI
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.790/PUN/2019 / ASSESSMENT YEAR : 2010-11 BALKRISHNA GANGARAM INDURE, KRISHNAJI NAGAR, KARMALA, DIST. SOLAPUR-413203. PAN : AACPI1662E . /APPELLANT VS. ITO, WARD-3, PANDHARPUR. . / RESPONDENT / APPELLANT BY : SMT. DEEPA KHARE / RESPONDENT BY : SHRI ABHIJIT CHAUDHURI / DATE OF HEARING : 13.11.2019 / DATE OF PRONOUNCEMENT: 19.11.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-7, PUNE DATED 27.02.2019 FOR THE ASSESSMENT YEAR 2010-11. PRELIMINARY ISSUE - CONDONATION OF DELAY 2. BEFORE ME, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL COULD NOT BE FILED IN TIME AND THE SAID APPEAL IS NOW FILED WITH THE DELAY OF 06 DAYS . IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE FILED AN AFFIDAVIT STATING THE REASONS FOR NON-FILING THE APPEAL OF THE ASSESSEE IN TIME. FOR THE SAKE OF COMPLETENESS, THE RELEVANT PARA OF THE SAID AFFIDAVIT IS EXTRACTED HEREUNDER :- ITA NO.790/PUN/2019 - 2 - 1. THAT I AM ASSESSED TO INCOME TAX BY THE ASSESSING OFFICER, WARD -3, PANDHARPUR ON FILE BEARING PERMANENT ACCOUNT NUMBER AACPI1662E. 2. THAT I PREFERRED AN APPEAL TO THE COMMISSIONER OF INCOME(APPEALS)-7, PUNE AGAINST THE ASSESSING OFFICER' ORDER OF ASSESSMENT DATED 27.10.2017 FOR THE ASSESSMENT YEAR 2010-11. 3. THAT I RECEIVED THE ORDER OF THE SAID COMMISSIONER OF INCOME TAX (APPEALS) ON 16.03.2019. 4. THAT BEING AGGRIEVED BY THE SAID ORDER I REQUEST MY TAX CONSULTANTS MS V S DATE & ASSOCIATES, CHARTERED ACCOUNTANTS TO PREFER AN APPEAL TO THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, PUNE AND THEY UNDERTOOK TO DO THE NEEDFUL SOON AFTER THE BANK BRANCH AUDIT WORK IN THE MONTH OF APRIL 2019. 5. MY TAX CONSULTANT MR SUJAY KULKARNI (CA) VISITED THE ITAT FOR FILING APPEAL ON 15/05/2019. BUT SAME COULD NOT FILED BECAUSE OF FORM 36 WAS IN OLD FORMAT. AS HE IS VISITING FROM SOLAPUR AND I AM STAYING IN KARMALA, IT WAS POSSIBLE FOR HIM TO PREPARE FORM 36 IN NEW FORMAT AND OBTAIN MY SIGNATURES ON THE SAME DAY. 3. CONSIDERING THE ABOVE REASONS GIVEN BY THE ASSESSEE IN THE AFFIDAVIT, I FIND IT IS A FIT CASE FOR CONDONING THE DELAY OF 06 DAYS. AFTER CONDONING THE DELAY, I PROCEED TO ADJUDICATE THE APPEAL OF THE ASSESSEE IN THE FOLLOWING PARAGRAPHS. 4. BEFORE ME, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSING OFFICER ASSUMED JURISDICTION OF ASSESSMENT BASED ON THE AIR INFORMATION RELATING TO THE VARIOUS BANK ACCOUNTS. THE ASSESSING OFFICER CONDUCTED ENQUIRIES WITH THE BANK AND FOUND THERE ARE FOUR BANK ACCOUNTS INVOLVING THE ASSESSEE DIRECTLY OR INDIRECTLY. THERE ARE CASH DEPOSITS IN THESE BANK ACCOUNTS. BASED ON THEM, THE ASSESSING OFFICER MADE ADDITION AND DETERMINED THE TOTAL INCOME AT RS.32,79,700/- AFTER MAKING ADDITION OF RS.14,78,000/- ON ACCOUNT OF THE TOTAL DEPOSITS. THE CIT(A) GRANTED PART RELIEF TO THE ASSESSEE. THE OWNERSHIP OF THE BANK ACCOUNTS IS AN ISSUE, THE CIT(A) DELETED WHEREVER ASSESEES NAME IS NOT APPEARED IN THE BANK OPENING FORMS/BANK ACCOUNTS. EVENTUALLY, A ITA NO.790/PUN/2019 - 3 - JOINT ACCOUNT WAS IDENTIFIED WHERE CASH DEPOSITS MADE IN THE SAID ACCOUNTS AND ADDED THE RELEVANT CASH DEPOSITS IN THE HANDS OF THE ASSESSEE IGNORING THE FACTS THAT THE ASSESSES MOTHER IS JOINT OWNER OF THE SAID ACCOUNT. IT IS A POSSIBILITY THAT SAME CASH DEPOSITS CAN RELATE TO THE MOTHER. THE SAME WAS NOT VERIFIED PROPERLY. 5. IN THE BACKGROUND OF THE ABOVE FACT, LD. COUNSEL MENTIONED THAT THE ISSUE NEEDS REMAND TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. JUSTIFYING THE SAME, LD. COUNSEL READ OUT THE CONTENTION OF PARA 6 OF THE CIT(A)S ORDER AND PROMISES THAT THE ASSESSEE SHALL FILED REQUISITE DETAILS IF AN OPPORTUNITY GRANTED. 6. ON HEARING BOTH THE SIDES, WE FIND RELEVANT TO EXTRACT THE SAID PARA 6 OF THE ORDER OF THE CIT(A) AND THE SAME IS EXTRACTED HEREUNDER :- 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE. THE CIT(A) IN PARA 4.2 OF THE APPELLATE ORDER HAS DELETED THE ADDITION MADE OF RS.22,35,000/- ON THE BASIS OF WRONG FACTS PRODUCED BEFORE HIM. THE S.B. A/C NO. 30749557581 IS A JOINT ACCOUNT OF THE APPELLANT WITH HIS MOTHER AND THEREFORE IT IS THE RESPONSIBILITY OF THE APPELLANT TO EXPLAIN ALL THE TRANSACTIONS TAKEN PLACE IN THIS ACCOUNT TILL DATE. HOWEVER, THE APPELLANT FAILED TO DISCHARGE THE ONUS CAST UPON HIM INSPITE OF SO MANY OPPORTUNITIES OFFERED BY THE THEN AO AND BY THE PRESENT AO WHILE GIVING EFFECT TO THE ITATS ORDER. THE APPELLANT ALSO FAILED TO PRODUCE THE EVIDENCES AND RELEVANT DOCUMENTS DURING THE APPEAL PROCEEDINGS. THIS SHOWS THAT THE APPELLANT DOES NOT HAVE ANY EVIDENCE WITH HIM TO SUBSTANTIATE THE CASH DEPOSITS MADE IN THE RELEVANT ACCOUNT. THEREFORE, I HOLD THAT, THE AO IS CORRECT IN RETAINING THE ADDITION OF RS.10,45,000/- AS THESE ARE THE DEPOSITS IN THE JOINT ACCOUNT. 7. FROM THE ABOVE, IT IS EVIDENT THAT FAILURE TO DISCHARGE OF ONUS BY THE ASSESSEE IS ONE OF THE REASONS FOR THE ADVERSE DECISION TAKEN BY THE CIT(A) IN THE MATTER. WE FIND THAT IT IS IN THE INTEREST OF JUSTICE AN OPPORTUNITY SHOULD BE GRANTED MORE SO WHEN THE ASSESSEE COUNSEL MADE A STATEMENT AT BAR STATING THAT THIS TIME HE SHALL AVAIL THE OPPORTUNITY BEFORE THE CIT(A). ITA NO.790/PUN/2019 - 4 - CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT THE MATTER IS REMANDED TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. NEEDLESS TO SAY, THE CIT(A) SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH SET PRINCIPLES OF NATURAL JUSTICE. THUS, WITHOUT GOING INTO THE MERITS OF THE ISSUE, ALL THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 19 TH DAY OF NOVEMBER, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 19 TH NOVEMBER, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-7, PUNE; 4. THE PR. CIT-6, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE