MOHAMMED MOSHIN,NEW DELHI vs. DCIT, CENTRAL CIRCLE, , GHAZIABAD
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Income Tax Appellate Tribunal, DELHI BENCH ‘E’: NEW DELHI
PER ANADEE NATH MISSHRA, AM: (A) This appeal by Assessee is filed against the order of Learned
Commissioner of Income Tax (Appeals)-IV, Kanpur [Ld. CIT(A)”, for
short], dated 30/10/2018 for Assessment Year 2016-17. Grounds
taken in this appeal are as under:
“1. That on the facts and circumstances of the case and in law, the order dated 30.10.2018 passed by the Learned Commissioner of Income tax Appeals (“Ld. CIT(A)”) is erroneous and bad in law.
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ITA No.35/Del/2019 Mohammed Moshin Vs. DCIT 2. That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the addition of Rs.11,00,000 made by the Learned Assessing Officer (“Ld. AO”) on account of alleged unexplained cash u/s 69A of the Income tax Act, 1961 despite the fact that the Assessee has provided all documents and evidences to support his claim and complete source of the cash is explained.
That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the addition of Rs.11,00,000/- made by the Ld. AO despite the fact that the cash is duly accounted for in the books and has been declared in the income tax return and wealth tax return and wealth tax has been paid.
That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the addition of Rs.11,00,000/- made by the Ld. AO which has been made on the basis of surmises and conjectures.
That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in law in summarily rejecting the additional evidence filed by the Assessee under Rule 46A of the Income-tax Rules, 1962 and has violated the principle laid down in Rule 46A.
That the grounds of appeal are independent and without prejudice to each other.
The assessee craves leave to add, amend, alter, remove, rescind, forgo or withdraw any of the above grounds of appeal, which are without prejudice to one another, before or at the time of hearing of the appeal in the interest of natural justice.”
(B) In this case, assessment order dated 29/12/2017 was
passed by the Assessing Officer u/s 143(3) of Income Tax Act;
wherein the assessee’s total income was assessed at
Rs.2,77,99,465/- (rounded off to Rs.2,77,99,470/-) is against the
returned income of Rs.2,66,99,465/-. In the aforesaid assessment
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ITA No.35/Del/2019 Mohammed Moshin Vs. DCIT order, an addition of Rs.11,00,000/- was made on account of cash
seized during the course of search operation u/s 132 of IT Act. The
assessee filed appeal against the aforesaid assessment order in the
office of the Ld. CIT(A). In the course of appellate proceedings, in the
office of the Ld. CIT(A), the assessee submitted some additional
evidences. The Ld. CIT(A) did not admit the additional evidences
and dismissed the assessee’s appeal. This present appeal before us
has been filed by the assessee against the aforesaid impugned
appellate order dated 30/10/2018 of the Ld. CIT(A).
(B) At the time of hearing before us, the assessee appellant
was represented by none. In the absence of any representation from
the assessee side, we heard the Ld. CIT-DR for Revenue. She relied
on the impugned appellate order dated 30/10/2018 of the Ld.
CIT(A) and the assessment order dated 29/12/2017.
(C) On perusal of the impugned appellate order dated
30/10/2018 of the Ld. CIT(A), we find that the Ld. CIT(A) has not
admitted additional evidences filed by the appellant assessee in the
course of appellate proceedings in the office of the Ld. CIT(A).
However, we find that the Ld. CIT(A) has not passed a speaking Page 3 of 5
ITA No.35/Del/2019 Mohammed Moshin Vs. DCIT order explaining why he did not admit the additional evidences. The
additional evidences filed by the appellant assessee were rejected by
the Ld. CIT(A) in a summary manner, merely stating that “the
additional evidences submitted by the appellant cannot be
entertained at this juncture, as the same is outside the purview of
Rule 46A of the Income Tax Rules”. In the facts and circumstances
of the present appeal before us, we are of the view, that the Ld.
CIT(A) should have passed a speaking order explaining why he did
not admit additional evidences.
(C.1) In view of the foregoing; and in the facts and
circumstances of the present appeal before us, we set aside the
impugned appellate order dated 30/10/2018 of the Ld. CIT(A) and
restore the issues in dispute to the file of the Ld. CIT(A) with the
direction to pass a speaking order regarding admissibility or
otherwise of the additional evidences. If the Ld. CIT(A) decides to
admit the additional evidences in pursuance of this order, then he
is further directed to decide the issues in dispute afresh through a
speaking order after providing reasonable opportunity to the
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ITA No.35/Del/2019 Mohammed Moshin Vs. DCIT assessee. All grounds of appeal are treated as disposed off in
accordance with aforesaid directions.
(C.1) For statistical purposes, the appeal is treated as partly
allowed.
Order pronounced in the Open Court on 28/02/2023.
Sd/- Sd/- (CHALLA NAGENDRA PRASAD) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 28/02/2023 Pk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
ASSISTANT REGISTRAR ITAT NEW DELHI
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