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Income Tax Appellate Tribunal, CHANDIGARH
Before: SMT. DIVA SINGH, JM
per record, already more than sufficient opportunity had already been given to the assessee. It was also objected that the assessee had come up with different explanations. Moreover,
ITA-253/CHD/2020 A.Y. 2011-12 Page 3 of 5 according to the AO, the deposits could not be explained from the agricultural income as there was no nexus between the date of issue of “Form-J” and the dates of cash deposits etc.
The assessee in his reply to the objections of the AO before the CIT(A) as per record had submitted that the amount was sourced from agricultural land purchased by his friends, Registry of Sale Deeds etc. demonstrating this fact was stated to be included. The friends were named as Shri Krishan Kumar, from whom Rs. 4.5 lacs had been obtained and Shri Dharam Singh, from whom Rs. 3.5 lacs had been obtained. It is seen that the assessee also claimed that having remained busy in the marriage of his daughter, wherein as a result of the death of his wife, all family responsibilities fell upon him in the absence of his son who was abroad, thus proper explanations etc. could not be given.
It is seen that the said explanation was discarded by the CIT(A) holding as under :
“3.4 …………………..The assessee sought to file additional evidences under Rule 46A of the come Tax Rules which was admitted. However, it is seen that at the remand stage, the appellant changed his stance and said that it was borrowed from friends; which fact is again not backed by any evidence. Hence, the addition was justified and I confirm the same.” 7. The above finding of the CIT(A) in para 3.4 of the CIT(A) in para 3.4 runs counters to submissions extracted in para 3.1 reproduced in the earlier part of this order. The ld. Sr.DR was required to address as to how where the assessee is stated to ITA-253/CHD/2020 A.Y. 2011-12 Page 4 of 5 have included the Registry of the property etc. demonstrating availability of funds how it could be stated to be a case of lack of evidence unless copies of the stated Registries were not filed. No such categoric finding has been recorded in the order noting that the documents stated to be made available were not filed.
Similarly, in the remand report of the AO relied upon by the ld. CIT(A), it is seen that the predominant argument has been opportunity already provided. The assessee's explanation that he could not participate fully having remained pre-occupied in marriage etc. responsibility of a child remains unrebutted. The explanation in the circumstances is plausible. Thus, the exercise of relying on the non-speaking remand report becomes meaningless and cannot be said to be a fair and impartial exercise of power. In order to discard the explanation from agricultural sources specific dates need be recorded to show that the bank deposits being prior to availability of funds as per Form-J etc. No such finding is recorded.
In the above facts and circumstances, considering the fact that the assessee is also attempting to obtain further documentary evidences to satisfactorily support its case, it is deemed appropriate and in the interests of substantial justice to set aside the impugned order back to the file of the CIT(A) requiring the said authority to specifically address the evidences relied upon and in the eventuality, these are found to be ITA-253/CHD/2020 A.Y. 2011-12 Page 5 of 5 insufficient and incomplete, the said fact be confronted to the assessee and opportunity to make good deficiencies noticed, if any, be provided. The First Appellate Authority thereafter to pass a speaking order in accordance with law after providing the assessee an effective opportunity of being heard. Said order was pronounced at the time of virtual hearing itself in the presence of the party present via Webex.
9. Before closing, it is made clear that since the order has been passed ex-parte qua the assessee appellant overturning the adjournment application moved, hence, it is made clear that in the eventuality of any prejudice faced by the assessee on account of non-representation in the hearing via Webex, remedy of recall etc. provided under the ITAT Rules, if so deemed necessary may be invoked as per law.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced on 19th March,2021.