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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD & SHRI AMARJIT SINGH
Consolidated Appeals (8)
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.
The AO has received AIR information that assessee has deposited cash aggregating to Rs. 12,30,395/- in his Savings Bank Account with Karur Vysya Bank Ltd. Thereafter, a notice under section 148 were issued to the assessee on 25.03.2015, however, the assessee has not filed the return of income in a response to notice issued by the AO. Even the assessee has not made any compliance with the notice issued under section 142(1) of the Act. Therefore, the AO has completed the assessment under section 144 r.w.s. 147 of the Act. The AO has ITA Nos.369,420,418,464,465,385,419&466/Ahd/2017 Bhavnaben Nitinbhai Patel & Others vs.ITO Asst.Year – 2008-09 issued notice under section 133(6) of the Act to the bank and copy of bank statement for F.Y. 2007-08 relevant to the assessment year under consideration was obtained. On verification of the bank statement the cash deposited as reported in the AIR information was found to be correct. The AO has also issued show- cause notice dated 24.09.2015 to the assessee to show-cause as to why the cash deposit in the bank account amounting to Rs. 12,30,395/- should not be added to his total income. However, the assessee has failed to furnish any explanation. Consequently, the AO has treated that above referred cash deposit of Rs. 12,30,395/- as unexplained cash deposit and added to the total income of the assessee.
Aggrieved assessee has filed appeal before the Ld. CIT(A).
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.
During the course of appellate proceeding before us the assessee has filed additional evidences stating that he has also been in the business of share trading ITA Nos.369,420,418,464,465,385,419&466/Ahd/2017 Bhavnaben Nitinbhai Patel & Others vs.ITO Asst.Year – 2008-09 and furnished share brokers notes and bills for purchased/sale of shares from Page No. 1 to 17 as placed in the Paper Book. Further the assessee has submitted that he has also filed rejoinder to the remand report of the AO before the Ld. CIT(A) and same has not been objectively considered. The Ld. Counsel has further contended that Ld. CIT(A) has errored in confirming the ex-parte assessment order under section 144 made by the AO as due to illness in the family the assessee could not make compliance before the AO.
On the other hand, the Ld. DR has supported the order of CIT(A).
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
All these four appeals are pertained to the penalty levied under section 271(1)(c) of the Income Tax Act on the quantum addition made as adjudicated above in this order. Since we have restored the quantum appeal to the file of assessee for deciding a fresh as above therefore penalty levied in this case has become infructuous at this stage. The AO may decide the penalty issues in all the four cases a fresh on the outcome of the quantum assessment. Therefore, these four appeals are also allowed for statistical purpose.
In the result, appeals of the Assessee are allowed for statistical purpose. This Order pronounced in Open Court on 13/01/2020 ( AMARJIT SINGH ) ACCOUNTANT MEMBER Ahmedabad; Dated 13/01/2020 TANMAY, Sr.PS आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant
""यथ" / The Respondent. 3. संबं"धत आयकर आयु"त / Concerned CIT 4. आयकर आयु"त ( अपील ) / The CIT(A)
"वभागीय ""त"न"ध अहमदाबाद , आयकर अपील"य अ"धकरण / DR, ITAT, Ahmedabad 6. गाड" फाईल /Guard file.
आदेशानुसार/ BY ORDER, स"या"पत ""त //// उप सहायक पंजीकार (Dy./Asstt.