Dwaraka Prasad Bazari, Balotra V. ITO, Balotra

ITA 82/JODH/2022

AI Insights

This case involves an appeal by Dwaraka Prasad Bazari against the order of the National Faceless Appeal Centre (NFAC), which upheld the addition of Rs. 39,53,500 as unexplained money under Section 69A of the Income Tax Act, 1961. The addition was initially made by the Income Tax Officer, Balotra, and was contested by the assessee on grounds of procedural impropriety and substantive errors in the application of tax laws. The CIT(A) dismissed the appeal due to non-compliance by the assessee in responding to notices. The tribunal found merit in providing another opportunity to the assessee, leading to the remand of the case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122739 (ITAT-JODHPUR)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-01-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 30-05-2022
• Other Referred Cases: Sudhir Kumar Sharma (HUF) Vs. CIT, K. Chinnathambam (2007) 162 taxmann 459 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 142(1); 274; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND Dr. S. SEETHALAKSHMI, JUDICIAL MEMBER ITA Nos. 82/Jodh/2022 (ASSESSMENT YEARS- 2017-18) Dwaraka Prasad Bazari S/o Ram Ratan Goyal, Prop. M/s Dungar Textiles Chhatriyon Ka Morcha, Opp. Gayatri Mandir, Balotra- 344022. Vs Income Tax Officer Balotra. (Appellant) (Respondent) PAN NO. AAPPD 0981 J Assessee By Shri Rajendra Jain (Advc.) Revenue By Ms. Nidhi Nair, JCIT-DR Date of hearing 16/01/2023 Date of Pronouncement 20/01/2023 O R D E R PER: Dr. S. Seethalakshmi, JM This is an appeal filed by the assessee aggrieved from the order of the National Faceless Appeal Centre, Delhi (herein after referred as “ NFAC” ), Ld. CIT(A) for the assessment years 2017-18 dated 10.05.2022, which in turn arises from the order passed by the Income Tax Officer, Balotra passed under Section 143(3) of the Income Tax Act, 1961 (in short 'the Act') dated 20.12.2019. 2 ITA Nos. 82/Jodh/2022 Dwarka Prasad Bazari vs. ITO 2. The assessee has raised the following grounds:- “That on the facts and in the circumstances of the case, the ld. CIT(A) has grossly erred in violating the principal of faceless appeal as ammounced for justice of hones taxpayers and the functioning of faceless processing’s in honestly and judicially manner and to avoid litigation as created unnecessary by AO. 2. That on the facts and in the circumstances of the case, the ld. CIT(A), NFAC erred in upholding the validity of order passed by the ld. AO. 3. That on the facts and in the circumstances of the case, the ld. CIT(A) NFAC grossly erred in sustaining addition of Rs. 39,53,500/- in respect of unexplained money u/s 69A of the Act. 4. That on the facts and in the circumstances of the case, the ld. CIT(A)NFAC grossly erred in upholding the finding recorded by ld. AO without taken to consider valid and legal submission available on portal of assessee. 5. That on the facts and in the circumstances of the case, the ld. CIT(A) NFAC grossly erred in without analyzing the nature of transactions in right prospective and judicious manner and sustained the addition in a hypothetical way which is against principles of natural justice. 6. That on the facts and in the circumstances of the case, the ld. CIT(A)NFAC grossly erred in upholding validity of the provision of section 69A of the Act as applied by ld. AO particularly when the ld. AO failed to discharge mandatory and legal requirement for invoking provision of section 69A of the Act. 7. That on the facts and in the circumstances of the case, the ld. CIT(A)NFAC grossly erred in representing erroneous and irrelevant finding in the order and thereby sustaining arbitrary addition in a hypothetical way by putting the assessee to erroneous harassment and inconvenience. 8. That the petitioner may kindly be permitted to raise any additional or alternative grounds at or before the time of hearing. 9. The petitioner prays for justice & relief.” 3 ITA Nos. 82/Jodh/2022 Dwarka Prasad Bazari vs. ITO 3. The AO observed that in this case, addition has been made under section 69A of the Income Tax Ac, 1961 and tax is payable under section 115BBE of Income Tax Act, 1961, penalty is required to be levied under section 271AAC of the Income Tax Act. In view of the above, penalty proceeding under section 274 read with section 271AAC of the Income Tax Act, 1961, initiated separately. Further, it is also seen that, has failed to comply with a notice u/s 142(1) issued on 06.11.2019, penalty proceedings u/s 274 read with section 272(1)(d) of the IT Act, initiated separately. In view of the above, total income of the assessee is assessed/computed as under:- S. No. Particulars Particulars 1. Return Income as per ROI Rs. 2,93,820/- 2. Unexplained money u/s 69A, read with section 115BBE of the Income Tax Act, 1961 Rs. 39,53,500/- 3. Assessed income Rs. 42,47,320/- Assessed at Rs. 42,47,320/- U/s 143(#) of the Income Tax Act, 1961. Charge interest u/s 234A, 234, 234C & 234D, if any. Issue demand notice and challan, accordingly. Working of tax as per ITNS 150 is enclosed herewith. Issue penalty notice u/s 274 r.w.s. 271AAC and 272A(1)(d) of the IT Act. 4. Being aggrieved by the AO the assessee preferred an appeal before the ld. CIT(A) and the findings are reproduced as under:- 4 ITA Nos. 82/Jodh/2022 Dwarka Prasad Bazari vs. ITO “ 4. Decision The appellant has been issued 3 notices from 23-01-2021 till 05-04-2022. The appellant has neither filed submission nor request letter for adjournment of hearing. Therefore, I have no option but to dispose off the appeal based on the material available on the record, factual matrix of the case, legal provisions as applicable for the year under consideration i.e. A.Y. 2017-18. Ground Nos. 1 to 8: These grounds are related to addition on account of cash of Rs. 39,53,500/- deposited in his Bank Account during the demonetization period. The appellant has not explained the source of cash deposited either during the assessment proceedings or during the appellate proceedings before me. During the appellate proceedings, the appellant has not responded to the notices issued by me. The burden of proof primarily lies on the appellant to explain the nature and source of cash deposited during demonetization period. Reliance is placed on the decision in the case of Sudhir Kumar Sharma (HUF) Vs. CIT (2014) 46 Taxmann.com 340 (P&H), the Supreme Court dismissed the Special Leave Petition filed against the impugned order wherein, it is held that since, cash was deposited in bank account of the assessee, onus was upon the assessee to explain nature and source of said cash deposit. Reliance is also placed on the decision of Supreme Court in the case of K. Chinnathambam (2007) 162 taxmann 459 (SC)/(2007) 292 ITR 682 (SC)/ (2007) 211 CTR 86 (SC) wherein, it is held that the onus of proving the source of deposit primarily rest on the person in whose name the deposit appears in various banks. As the appellant did not discharge the burden of proof, the AO is right in his action to treat the said cash deposit as unexplained. The Ground of appeal is dismissed.” 5 ITA Nos. 82/Jodh/2022 Dwarka Prasad Bazari vs. ITO 5. Now the assessee is in appeal. 6. The ld. DR only relied on the order of the lower authorities. 7. The assessee neither appeared before the AO nor before the CIT(A). Hence, with a view to providing one more opportunity to the assessee the appeal of the assessee is remanded back to the file of the Ld. CIT(A) with the direction to examine his case afresh by providing ample opportunity to the assessee. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 20/01/2023. Sd/- Sd/- (B. R. BASKARAN) (Dr. S. SEETHALAKSHMI) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 20/01/2023 *Santosh Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR 6. Guard File Assistant Registrar Jodhpur Bench