KAMAL KISHORE LAKHENA,BARWANI V. ITO, SENDHWA, SENDHWA

ITA 448/IND/2024

AI Insights

The case involves Kamal Kishor Lakhena, a retired government employee, who appealed against the order of the Commissioner of Income-Tax (Appeals) which upheld the addition of Rs. 10,38,000 as unexplained money under section 69A read with section 115BBE of the Income-tax Act, 1961. This amount was deposited in a bank account during the demonetization period and was claimed to be sourced from a refund related to a canceled land purchase deal with his brother. The Tribunal found that crucial documents, including the purchase agreement and an affidavit from the brother, were not submitted to the AO or the CIT(A) during the initial proceedings, leading to the decision to remand the case for a fresh assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 705639 (ITAT-INDORE)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Assessment Year: 2017-2018
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: FORASSESSEESUBMITTEDTHATTHECOPYOFPURCHASEAGREEMENTIS; FORREVENUESUBMITTEDTHATINSUCHA; SHRIASHISHPORWAL
• Assessee Lawyers: NISHA LAHOTI; VIJAY BANSAL; ARS
• Keywords: Opportunity of being heard; Additional evidence; Corroborative evidences
• Section: 143(3)

Judgement Text

"Page 1 of 5 आयकरअपीलीयअिधकरण, इंदौरɊायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI B.M. BIYANI, ACCOUNTANT MEMBER AND SHRI PARESH M. JOSHI, JUDICIAL MEMBER ITA No.448/Ind/2024 Assessment Year:2017-18 Kamal Kishor Lakhena, Shri Nath Sadan, Teh Ke Samne, Davana Road, Thikri, Barwani बनाम/ Vs. ITO, Sendhwa (Assessee/Appellant) (Revenue/Respondent) PAN: AAQPL4153K Assessee by Ms. Nisha Lahoti & Shri Vijay Bansal, ARs Revenue by Shri Ashish Porwal, Sr. DR Date of Hearing 26.06.2025 Date of Pronouncement 30.06.2025 आदेश/ O R D E R Per B.M. Biyani, A.M.: Feeling aggrieved by order of first appeal dated 21.03.2024 passed by learned Commissioner of Income-Tax (Appeals)-Addl/JCIT(A)-3, Kolkata [“CIT(A)”] which in turn arises out of assessment-order dated 18.11.2019 passed by learned ITO, Sendhwa [“AO”] u/s 143(3) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2017-18, the assessee has filed this appeal on following grounds: “1. On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining the assessment order u/s 143(3) which is Kamal Kishor Lakhena ITA No. 448/Ind/2024 – AY 2017-18 Page 2 of 5 contrary to the material on record and provisions of the Act, unjust and bad in law. 2.On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining the addition made u/s 69A r.w.s. 115BBE of Rs. 10,38,000 as unexplained money more particularly when the source of deposit of cash is duly explained. 3.On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining the addition made u/s 69A r.w.s. 115BBE of Rs. 10,38,000 as unexplained money without considering the submissions on record in proper perspective. 4.On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining the addition made u/s 69A rws 115BBE of Rs. 10,38,000 as unexplained money without giving reasonable opportunity of being heard.” 2. Heard the learned Representative of both sides and case record carefully perused. 3. The dispute in present case relates to the addition of Rs. 10,38,000/- made by AO and upheld by CIT(A) u/s 69A of the Act treating the cash deposit made by assessee in a/c with State Bank of India on 03.12.2016 during demonetization period as unexplained money. The assessee was a Govt. employee who retired from service on 31.10.2015. During scrutiny proceeding, when the AO show-caused assessee to explain the source of impugned deposit, it was submitted by assessee that he received funds on retirement and by utilizing the funds so received, purchased a land from his brother Shri Vimal Kumar. Subsequently, the deal of purchase was cancelled and the assessee received refund of Rs. 10,21,000/- on 01.12.2016 from his brother which was thereafter utilized for making impugned deposit of Rs. 10,38,000/- in bank a/c. The AO has, however, Kamal Kishor Lakhena ITA No. 448/Ind/2024 – AY 2017-18 Page 3 of 5 noted his objection that the assessee did not furnish purchase-agreement or any other documentary evidence (Para 5 of assessment-order). 4. Ld. AR for assessee submitted that the copy of purchase-agreement is available at Page No. 35-36 of Paper-Book. On a query by bench as to whether this purchase-agreement was filed to AO, Ld. AR initially referred the letter dated 14.11.2019 filed by assessee to AO during scrutiny- proceeding, copy at Page No. 14-17 of Paper-Book, in an attempt to show that the assessee narrated the details of purchase of land, cancellation of deal and refund of money by brother. But from this submission, shown by Ld. AR, it is not spelled out that the purchase-agreement was filed to AO. Going further, at the end of the letter, there is a list of five documents enclosed with the letter but even in that list, the purchase-agreement is not mentioned. When these aspects were shown by bench to Ld. AR, the Ld. AR immediately accepted that the purchase-agreement would not have been filed to AO. So far as the cancellation of deal of purchase and refund of money by brother is concerned, Ld. AR submitted that a confirmatory affidavit of assessee’s brother is placed at Page No. 37-38 of Paper-Book but on perusal by bench, it is observed that the said affidavit is dated 11.02.2021. Ld. AR instantly submitted that this affidavit was neither filed to AO nor to the CIT(A). In fact, Ld. AR went on submitting that no submission was made from assessee’s side during first appellate Kamal Kishor Lakhena ITA No. 448/Ind/2024 – AY 2017-18 Page 4 of 5 proceedings and the CIT(A) has passed impugned order of first-appeal by merely discussing the facts noted by AO in assessment-order. 5. Replying to above, Ld. DR for revenue submitted that in such a situation when the vital documents (Purchase-agreement and Affidavit of brother as discussed earlier) were not submitted before AO and further no submission was even made before CIT(A), the evidences submitted by assessee are in the nature of ‘new/additional evidences’ and therefore the only possible remedy could be to remand this case back to the file of AO for a fresh adjudication after examining evidences. 6. Ld. AR agreed to the proposal made by Ld. DR. 7. In view of above discussion and the consensus arrived at by learned Representatives of both sides, we are inclined to remand this matter back to the file of AO for adjudication afresh, at the risk and responsibility of assessee. The AO shall give necessary opportunity of hearing to assessee and pass an appropriate order uninfluenced by his earlier order. The assessee is directed to make a complete submission before AO with supporting evidences. The assessee is also directed to remain vigilant and ensure participation in the hearings as may be fixed by AO and do not seek unnecessary adjournments failing which the AO shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly. Kamal Kishor Lakhena ITA No. 448/Ind/2024 – AY 2017-18 Page 5 of 5 8. Resultantly, this appeal is allowed for statistical purpose. Order pronounced in open court on 30/06/2025 Sd/- Sd/- (PARESH M. JOSHI) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक/Dated : 30/06/2025 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order E COPYSr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore "