Devi Lal Jakhar, Bikaner V. ITO, Ward-2(2), Bikaner

ITA 93/JODH/2022

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 4806 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-03-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 06-07-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH MEENA
• Assessee Lawyers: RAJENDRA JAIN; RAKSHA BIRLA
• Keywords: Opportunity of being heard; Onus to prove
• Section: 147; 148; 144; 142(1); 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR. BEFORE: DR. S. SEETHALAKSHMI, JJUDICIAL MEMBER & SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER I.T.A. No.93/Jodh/2022 Assessment Year: 2013-14 Devi Lal Jakhar S/o Kana Ram Jakhar, Chak 3, RJD, Sansardesar Chhatargarh, Bikaner. [PAN: AOSPJ 4518 A] (Appellant) Vs. ITO, Ward-2(2), Bikaner. (Respondent) Appellant by Sh. Rajendra jain, Adv. & Smt. Raksha Birla, C.A. Respondent by Shri Prem Prakash Meena, Sr. DR Date of Hearing 11.03.2024 Date of Pronouncement 12.03.2024 ORDER Per:DR. S. Seethalakshmi, JM: This appeal filed by assessee is arising out of the order of the ld. CIT(A), National Faceless Appeal Centre, Delhi dated 22.06.2022 [here in after “ld.CIT(A)(NFAC)”] for assessment year 2013-14, which in turn arise from the order dated 04.12.2018 passed under section 144/147of the Income Tax Act (here in after “Act”) by the AO. I.T.A. No.93/Jodh/2022 Devi Lal Jakhar vs. ITO 2 2. In this appeal, the assessee has raised following grounds: - “ 1. That on the facts and in the circumstances of the case, the ld. CIT(A)/NFAC has grossly erred in violating the principal of faceless appeal as announced for justice of honest taxpayers and the functioning of faceless processing’s in honesty 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 has grossly 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 has grossly erred in upholding the validity of notice u/s 148 issued by the ld. AO.\ 4. That on the facts and in the circumstances of the case, the ld. CIT(A)/NFAC has grossly erred in consciously and deliberately highly disregarding the judicial decisions relied by assessee. 5. That on the facts and in the circumstances of the case, the ld. CIT(A)/NFAC has grossly erred in sustaining addition of Rs. 26,65,956/- in respect of cash deposits in bank by holding same as unexplained. 6. That on the facts and in the circumstances of the case, the ld. CIT(A)/NFAC out to have accepted the explanation of assessee that cash deposit out of genuine business transaction which are supported from credible evidences. 7. That on the facts and in the circumstances of the case, the ld. CIT(A)/NFAC has grossly erred in sustaining addition in respect of cash deposits in bank accounts. 8. That on the facts and in the circumstances of the case, the ld. CIT(A)/NFAC has 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. 9. That the petitioner may kindly be permitted to raise any additional or alternative grounds at or before the time of hearing. 10. The petitioner prays for justice & relief.” 3. Brief fact of the case are that in this case, as per the information available on AIMS module of ITBA, it was seen that during the F.Y. 2012-13 relevant to A.Y. 2013-14, the assessee made cash deposits of Rs. 26,95,596/- in his bank account. It was also seen that the assessee has not filed his return of income for I.T.A. No.93/Jodh/2022 Devi Lal Jakhar vs. ITO 3 A.Y. 2013-14. In view of the above facts, the case was reopened u/s. 147 of the Income-tax Act, 1961 after taking approval from the Pr. CIT, Bikaner. Notice u/s. 148 of the Income-tax Act, 1961 was issued on 26.09.2017. The assessee has not responded to this notice. Further, notices under section 142(1) were issued on 04.01.2018 & 26.11.2018 requesting the assessee to prepare a true and correct return of income in respect of which he was assessable under the Income Tax Act, 1961 during the previous year 2012-13, relevant to assessment year 2013-14. The assessee also requested to explain the source of cash deposits. However, the assessee failed to furnish any reply to the notices issued. Therefore, the assessment was completed u/s. 144 r.w.s. 147 of the Income-tax Act, 1961 on the basis of information available on record. It was found that Rs. 26,95,596/- has been deposited in cash in bank account during the year under consideration, The Ld. AO stated that in view of non- compliance attitude of the assessee, it is crystal clear that the assessee has no explanation to offer regarding nature and source of above cash credited in his accounts. Therefore, the above amount of Rs. 26,95,596/- credited into assessee's bank account was treated as unexplained money for the year under consideration and added back to the total income of the assessee. I.T.A. No.93/Jodh/2022 Devi Lal Jakhar vs. ITO 4 4. Aggrieved from the order of the assessing officer, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds of the appeal so raised by the assessee, the relevant finding of the ld. CIT(A) is reiterated here in below:- “5. Decision: Ground Nos. 1 & 3: These grounds are related to complete assessment u/s 144 without giving proper opportunity of being heard. From the facts stated in the assessment order, it is seen that the AO in this case has followed due procedure prescribed under the law to reopen the case for the year under consideration, after having the reason to believe that the income in this case has escaped assessment and considered it to be a case fit for applying the provisions of section 147/148 of the I.T. Act. 1961. From the assessment order, it is also observed that the notices u/s. 148 & 142(1) were issued to the appellant. However, in response to the same, the appellant has not attended nor filed any reply before the AO In my view, the A.O. on the basis of material available with him which had direct nexus with the factum of income escaping assessment was justified in re-opening the assessment. The A.O. has also passed the order after proper recording of the reasons and affording proper opportunity to the appellant. In this regard. Hence, ground Nos. 1 & 3 are dismissed. Ground No. 3: This ground is related to addition of Rs. 26,95,596/- on account of unexplained cash deposit into the bank account. I have gone through the assessment order and the facts of the case. The appellant made cash deposit of Rs. 26,95,596/- in his Bank Account during the F.Y. 2012-13. The appellant has not explained the source of cash deposited during the assessment proceedings. During the course of appellate proceedings, the appellant made submission before me but not furnished any evidence which can explain the source of cash deposit. The burden of proof primarily lies on the appellant to explain the nature and source of cash deposited during F.Y. 2012-13. 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 I.T.A. No.93/Jodh/2022 Devi Lal Jakhar vs. ITO 5 the appellant did not discharge the burden of proof, the AO is right in his action to treat the said cash deposit as unexplained. Ground No. 3 is dismissed. 6. In the result, the appeal is dismissed. 5. As the assessee did not find any favour from the appeal filed before ld. CIT(A). The present appeal filed against the said order of the ld. CIT(A) before this tribunal on the grounds as reiterated in para 2 above. The ld. AR of the assessee also filed a detailed paper book in support of the contentions raised. The index of the document submitted by the ld. AR of the assessee are as under:- S. No. Particulars Page No. 1. Copy of written submission before CIT(A) 1-12 2. Copy of reasons recorded u/s 148 of the Act 13 3. Copy of bank statement 14-19 4. Copy of 26AS 20 6. During the course of hearing, the ld. AR for the assessee prayed that the ld. AO has passed the ex-parte order and the assessee was not provided adequate opportunity of being heard. Thus, the assessee may be provided one more opportunity to advance his arguments/submissions before the ld. AO in the interest of equity and justice. I.T.A. No.93/Jodh/2022 Devi Lal Jakhar vs. ITO 6 7. Per contra, ld. DR objected to the prayer of the assessee and submitted that the assessee did not represent case before the ld. AO and before CIT(A) did not produce any additional documents for his relief.Therefore, in that case if the Bench feels the matter may be restored to the file of the Assessing Officer . 8. We have heard both the parties and perused the materials available on record. The Bench noted that the ld. CIT(A) has not considered the merit while the order and has simply consfirmed the finding of the ld. AO. Further, the ld. CIT(A) has simply stated that the assessee has submitted the submission but not furnished evidence which can explain the source of cash deposit. However, the Bench feels that the assessee could not advance his arguments/submissions without any evidence to contest the case before the lower authorities and have considered the prayer to give one more opportunity to submit the evidences concerning the issue in question, with grounds so raised by the assessee, to decide it afresh by providing one more opportunity of hearing. Since, the order of ld. AO is ex-parte the Bench feels that by the assessee place on record all the evidence before the ld. AO to justify the deposit of cash. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings before the ld. AO. 9. Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. AO shall in no way be construed as having any I.T.A. No.93/Jodh/2022 Devi Lal Jakhar vs. ITO 7 reflection or expression on the merits of the dispute, which shall be adjudicated by the ld. AO independently in accordance with law. In the result, the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on. 12/03/2024 Sd/- Sd/- (Rathod KamleshJayantbhai) (DR. S. Seethalakshmi) Accountant Member Judicial Member Santosh (On Tour) Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order