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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI PRASHANT MAHARISHI, AM & SHRI N. K. CHOUDHRY, JM
The Assessee/Appellant herein has preferred this appeal against the order dated 10.02.2023 impugned herein passed by Ld. Commissioner of Income Tax (Appeals)-34 / National Faceless Appeal Centre (NFAC), Delhi {in short ‘Ld. Commissioner)’} u/s 250 of the Income Tax Act 1961 (in short ‘the Act’).
In the instant case, the Assessing Officer vide assessment order dated 21.12.2018 u/s 143(3) r.w.s. 147 of the Act, made the addition of Rs. 7,05,840/- as concealed income of the Assessee. The Assessee being M/s Birju Mahesh Patel aggrieved though challenged the said addition before the Ld. Commissioner, who by considering the assessment order, the grounds of appeal, statement of facts and relevant judicial decisions in the matter , confirmed the said addition of Rs. 7,05,840/- as made by the AO, by holding as under:-
6.2 I have carefully considered the AO's viewpoint contained in the Assessment Order and the grounds of appeal and statement of facts made by the appellant in Form 35 including relevant judicial decisions in the matter. 6.3 Based on the information, re-opening of assessment for AY 2011- 12 was initiated after recording of appropriate reasons. Also, notice u/s 148 of the Act was issued after the Act from the Competent Authority. It is noticed from the assessment authority in requisite approval u/s 151 of order, the assessee has stated that he had indeed acquired properties with Iscon Plam Springs Project of M/s J P Iscon Pvt. Ltd for a total amount of Rs 28,23,360/-. In support of his contention, copy of agreement for the properties dt 07/09/2022 and copy of ledger A/C of the party in the Books of the assessee were submitted. In addition, copy of relevant page of the Bank Statement showing the payment transaction was also furnished. But, the assessee denied making payment of Rs 35,29,200/-. Without prejudice that the difference amount of Rs 7,05,840/- [Rs 35,29,200/- minus Rs 28,23,360/-] was actually paid in cash by the assessee but was undisclosed in the ITR or final accounts. 6.4 In view of the facts and circumstances borne out of the assessment order and legal precedents as discussed above, I am of the view that appellant has failed to prove the genuineness of transactions. T he appellant has been given the adequate opportunities on various dates but there has been no compliance at all. However, no written submission was filed by the appellant till now on the portal. Hence, in view of the above and on the basis of the detailed findings and reasons given by the AO in his assessment order, which have not been explained by the appellant and no evidence to the contrary has been submitted either at the stage of assessment or appeal. Accordingly, addition of Rs.7,05,840/- made by the Assessing Officer as concealed income of the Act is confirmed and Ground No. 1 is dismissed.
M/s Birju Mahesh Patel 3. The Assessee being aggrieved is an appeal before us.
We have given thoughtful consideration to the peculiar facts and circumstances of the case and observe that the though the Ld. Commissioner afforded various opportunities to the Assessee, however the Assessee neither appeared nor filed any submission to substantiate its grounds of appeal raised, therefore, the Ld. Commissioner confirmed the findings and reasons given by the AO in the assessment order. As the Assessee has failed to produce any explanation/reasons and evidence before the Ld. Commissioner and consequently, Ld. Commissioner upheld the addition, we are inclined not to interfere in the impugned order, however considering the peculiar facts and circumstance, as the adjudication of the case has not been done properly in the absence of the explanation/reasons and evidence by the Ld. Commissioner, therefore, in order to give an opportunity and for the just decision of the case and the ends of substantial justice, we are inclined to remand the instant case to the file of Ld. Commissioner for decision afresh subject to deposit of Rs. 5000/- in PM National Relief Funds within 30 days of the receipt of this order as the Assessee agreed, suffice to say by affording reasonable opportunity of being heard to the Assessee.
We also direct the Assessee to cooperate with the appellate proceedings and file the relevant document(s) which would be needed for proper adjudication and shall also appear before the Ld. Commissioner as and would be required. Further clarify that incase of subsequent default, the Assessee shall not be subjected to any leniency and the Ld. Commissioner would to be at liberty to the decide case in accordance of law, on the basis of the material available on record.
M/s Birju Mahesh Patel 5. In the result appeal filed by the Assessee stands allowed for statistical purpose.
Order pronounced in the open court on 17-07-2023.