SHRI NITINBHAI RAMJIBHAI PATEL,,UNJHA vs. THE INCOME TAX OFFICER, PATAN WARD - 4,, PATAN

PER BENCH: All the eight appeals have been filed by the assessee for A.Y. 2008-09, arise from order of the CIT(Appeals) Gandhinagar, Ahmedabad dated 19.12.2016, in proceedings under section 144 r.w.s. 147 and penalty proceedings under section 271(1)(c) dated 20.12.2016of the Income Tax Act, 1961; in short “the Act”.

First four grounds of Appeal Nos. 419,466,420,465/Ahd/2017 are pertained to different assessee of the group. Since common issue on identical facts are involved in these appeals therefore for the sake of convenience all these appeals are adjudicated together. By taking the case of Nitinbhai Ramjibhai Patel by ITA No. 420/Ahd/2017 as a lead case and its finding will be applicable to all the other three cases in the group.

During the course of appellate proceeding before the Ld. CIT(A) the assessee has explained that cash deposit were made out of agricultural income earned by the assessee as well as cash withdrawal from bank utilized in making subsequent deposit in the bank account. The AO vide remand report has contradicted the explanation of the assessee stating that the assessee along with two persons had owned agricultural land of 2.57 bighas as per which assessee’s share of land come to only 0.85 bighas, therefore, earning of agricultural income to the extent of Rs. 5,12,030/- cannot be accepted. Considering the aforesaid facts and no basis of showing opening cash balance of Rs. 68,450/- the Ld. CIT(A) has dismissed the appeal of the assessee.

We have heard both the sides and perused the material on record carefully. During the course of assessment proceeding the AO observed from the AIR information that assessee had made cash deposit of Rs. 12,30,395/- and the same was remained unexplained as assessee had not made any compliance at the level of AO. At the appellate stage before the Ld. CIT(A) the assessee had furnished additional evidences which were not submitted before the AO. The Ld. CIT(A) has dismissed the appeal of the assessee after considering the remand report of the AO that because of small holding of land by the assessee earning of agricultural income to the extent of Rs. 5,12,030/- cannot be accepted.

During the course of appellate proceeding before us the Ld. Counsel has furnished additional evidences claiming that assessee has also earned income from shares trading and the necessary detail and document were placed in the Paper Book. The assessee has also contended that his rejoinder to the remand report was not objectively considered by the Ld. CIT(A). ITA Nos.369,420,418,464,465,385,419&466/Ahd/2017 Bhavnaben Nitinbhai Patel & Others vs.ITO Asst.Year – 2008-09 During the course of hearing this appeal to substantiate the reasonable cause for not making the submission at the time of hearing before the lower authorities, the Ld. Counsel stated that there was no mala fide intention on the part of the assessee for not making proper compliance before the lower authority. The Ld. Counsel has requested for granting one more opportunity and agreed of paying reasonable cost of Rs. 12,500/- per case to the Income Tax Department for wasting precious time and resources of the AO and the Ld. CIT(A). After considering the above facts and circumstances to decide the issue on merit we are of the view that the additional evidences and rejoinder filed by the assessee are required to be verified/examined. Under the circumstances of the case subject of depositing a sum of Rs, 12,500/- per case totaling of Rs. 50,000/- with the Income Tax Department one additional opportunity is given to the assessee to submit the case on merits before the AO it will meet the end of justice. In view of the fact and circumstances as we have admitted the additional evidences the case is restored to the file of the AO for deciding a fresh in accordance with law after affording adequate opportunity of being heard to the assessee. The assessee shall produce a copy of challan depositing the cost imposed before the AO within 30 days of receipt of this order. Therefore, we restore all the four cases to the file of the AO for deciding a fresh after examination and verification of the additional evidences/other detail to decide this case a fresh after affording adequate opportunity to the assessee. Therefore, all these four appeals of the assessee are allowed for statistical purpose.

ITA Nos. 464/418/369/385/Ahd/2017(A.Y. 2008-09):- ITA Nos.369,420,418,464,465,385,419&466/Ahd/2017 Bhavnaben Nitinbhai Patel & Others vs.ITO Asst.Year – 2008-09

आदेशानुसार/ BY ORDER, स"या"पत ""त //// उप सहायक पंजीकार (Dy./Asstt.