AKSHYA KUMAR CHOUDHURY,KHORDA vs. ITO,WARD-3(1), BHUBANESWAR

आयकर अपीलीय आयकर अपीलीय अिधकरण अिधकरण, कटक कटक �यायपीठ �यायपीठ,कटक आयकर आयकर अपीलीय अपीलीय अिधकरण अिधकरण कटक कटक �यायपीठ �यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI MANISH AGARWAL, ACCOUNTANT MEMBER आयकर अपील संसंसंसं/ITA ITA ITA No.391/CTK/2024 ITA (िनधा�रण िनधा�रण िनधा�रण वष� िनधा�रण वष� वष� / Assessment Year : 2017-2018) वष� Akshaya Kumar Choudhury Vs ITO, Ward-3(1), Bhubaneswar House No.2612, Forest Park Bhubaneswar, Khurda PAN No. : ABGPC 9511 R (अपीलाथ� अपीलाथ� अपीलाथ� /Appellant) अपीलाथ� (��यथ� ��यथ� ��यथ� / Respondent) ��यथ� .. िनधा�रती िनधा�रती क� िनधा�रती िनधा�रती क� क� ओर क� ओर ओर सेसेसेसे /Assessee by ओर : Shri Satyajit Pattnaik, Advocate राज�व क� राज�व क� ओर ओर सेसेसेसे /Revenue by राज�व राज�व क� क� ओर ओर : Shri S.C.Mohanty, Sr.DR सुनवाई क� तारीख / Date of Hearing : 17/10/2024 घोषणा क� तारीख/Date of Pronouncement : 17/10/2024 आदेश आदेश / O R D E R आदेश आदेश Per Bench : This is an appeal filed by the assessee against the order of the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi, dated 02.02.2024, passed in appeal No.CIT(A), Bhubaneswar-1/14472/2019-20 vide DIN & Order No.ITBA/NFAC/S/250/2023-24/1060454453(1) for the assessment year 2017-2018, on the following grounds of appeal :- A. For that the impugned first appellate order is arbitrary in view of the facts above and as such liable to be interfered with by this Hon'ble Tribunal. B. For that when the learned A.O. verified the books of accounts and came to a finding that the alleged amount of Rs. 17,58,500/- was duly shown in the returned income and suffered to tax at the hands of the firm as well, rejection of such finding by the learned Appellate Authority is arbitrary and baseless. Hence liable to be interfered with by this Hon'ble tribunal. C. For that rejection of the remand report by the learned First Appellate Authority is arbitrary, baseless and liable to be reversed by this Hon'ble tribunal. D. For that in view of the facts and law humbly explained above, the impugned addition as of the IT. As, be aside and reversed by this Hon'ble Tribunal.

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notices issued. In first appeal, the ld. CIT(A) has dismissed the ground of

appeal of the assessee with regard to bank deposits, however, accepted

the contentions of the assessee on account of long term capital gain and

allowed part relief by upholding the addition of Rs.2,37,750/- out of total

addition of Rs.16,50,250/- made by AO on this account. Aggrieved by the

ordr of ld. CIT(A), the assessee is in appeal before us challenging the

confirmation of addition of Rs.17,58,500/-.

Rs.17,58,500/- made by the AO and upheld by the ld. CIT(A), therefore,

these are canvassed together for the sake of convenience.

of assessment proceedings due to unavoidable circumstances of the

assessee as he was medically unfit, he could not be able to comply with

the notices issued by the AO. However, during the course of appellate

proceedings all the documents in support of the contentions raised

against the additions made were submitted before the ld. CIT(A) along

with a prayer under Rule 46A of the IT Rules, 1962. The ld. CIT(A)

obtained the remand report of the AO on the additional evidences

submitted by the assessee wherein vide remand report dated Nil, it is

stated by the AO that he has made verification of the documents filed and

the claim of the assessee with regard to the source of the cash deposit in

the bank account and found the contentions of the assessee correct. The

remand report as submitted by the AO is reproduced in the appellate

order in para 5 from pages 8 to 10, which reads as under :-

5 ITA No.391/CTK/2024

Amiya kumar Chaudhury. (v) Madhuri Palo, (vi) Binodini Panigrahi and (vii) Ajaya Kumar Chaudhury I am producing the relevant document for your kind verification. For the shake of natural justice, Shri Akshaya Kumar Chaudhury is only the share of rs. 2,35,750/- (Rs. 16,50,250/7=Rs. 2,35,750/- is coming under the perview of taxation. This amount was not offered for taxation in the assessment year 2017-18. The share of Rs. 2,35,750/- may kindly brought to tax net for the impugned assessment year. In this regard the sale deed is produced for your kind verification." On verification of the sale deed and other land related documents (old papers of the land like payment of state government taxes), it is seen that, this immovable property stood jointly in the name of Prafulla kumar Chaudhury. Bijay Kumar Chaudhury. Akshaya Kumar Chaudhury. Amiya kumar Chaudhury. Madhuri Palo, (Binodini Panigrahi and Ajaya Kumar Chaudhury So the share of the property i.e. Rs. 2,35,750/- should be taxed under LTCG in the hands of the assessee0.”

enquiry from the assessee nor confronted to the AO, ld. CIT(A), NFAC

doubted the said report by observing that the AO has submitted a vague

reply and confirmed the additions made of Rs.17,58,500/-. Ld. AR further

contented that during the course of remand proceedings, books of

accounts and another relevant documents such as booking register were

produced before the ld. AO and it was claimed that the assessee is one of

the partner in M/s Jagannath Choudhury, a partnership firm engaged in

the real estate business, who had received advances from the customers

against booking of the plot on installment basis during the year. The

amounts so received were duly recorded in the cash book of the firm and

booking register was also maintained containing complete details of the

persons from whom advances were received. Inadvertently, the

accountant of the firm had deposited the amount of booking received in

cash in the bank account of the assessee instead in the bank account of

7 ITA No.391/CTK/2024

the assessee has failed to comply with any notice were explained before

the ld. CIT(A), who not only accepted the explanation tendered by the

assessee but also admitted the additional evidences submitted by the

assessee during the appellate proceedings and sought remand report on

the same. The AO vide his remand report has categorically stated that he

has made verification of the details submitted by the assessee with the

cash book and register of the parties produced by the assessee. In the

remand report as reproduced in the appellate order, which is also

extracted hereinabove, the observations of the AO are very much clear

that he has not only verified the cash book but also the financial

statements and the return of firm M/s Jagannath Choudhury and finally

concluded that the amounts deposited in the bank account of the

assessee were duly recorded in the books of accounts of the partnership

firm and pertained to the firm only. The ld. CIT(A) has not accepted this

remand report for his own assumption and presumption. If the CIT(A) was

not satisfied with the remand report submitted by the AO, he could have

directed the AO to make further enquiry in the matter or confront the

assessee about the doubts he has on the remand report and the details

submitted by the assessee. No such action was taken by ld. CIT(A) and

without passing any order u/s.250(4) of the Act for making further

enquiry/investigation in the matter, has concluded that the amount

deposited in the bank account of the assessee is unexplained cash

deposit. Since the assessee has discharged the burden casted upon him

to explain the source of deposit to the satisfaction of the AO during the