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आदेश/Order PER RAVISH SOOD, JM
The present appeal filed by the assessee is directed against the order passed by the CIT(A), Hisar dated 25.10.2019, which in turn arises from the order passed by the A.O u/s 143(3)/147 of the Income Tax Act, 1961 (for short ‘the Act’) dated 27.12.2018.
The assessee has assailed the impugned order on the following grounds of appeal before us :
ITA 1581/CHD/2019 A.Y. 2011-12 2
On the facts and circumstances of the case and in law, the CIT (A) erred in passing ex-parte order.
2. On the facts and circumstances of the case and in law, the CIT(A) erred in passing order without providing proper opportunity of being heard. 3. On the facts and circumstances of the case and in law, the order passed by CIT(A) is against the principles of natural justice. 4. On the facts and circumstances of the case and in law, the CTT (A) erred in not adjudicating the grounds of appeal
on merit.
5. On the facts and circumstances of the case and in law, the notice under section 148 of the Income Tax Act, 1961 issued in the case is bad-in-law, void and without jurisdiction and, therefore, the said notice along with the assessment order passed by the assessing officer on the foundation of such notice are liable to be quashed and CIT (A) erred in not holding so.
6. On the facts and circumstances of the case and in law, the CIT(A) erred in confirming the action of the AO in making the addition of Rs 7,50,000/- on the account of alleged unexplained cash credit u/s 68 of Income Tax Act, 1961.
7. On the facts and circumstances of the case and in law, the addition ofRs. 7,50,000/- made by Assessing Officer is beyond the scope of jurisdiction and provisions of section 147/148 of the Income Tax Act, 1961 and CIT(A) erred in not holding so.”
Briefly stated, the assessee who is an advocate by profession had filed his return of income for assessment year 2011-12 on 31.03.2012, declaring his total income at Rs. 1,70,350/-. Subsequently, on the basis of information gathered by the A.O that deposits in cash aggregating to an amount of Rs. 11,52,000/- were made in the joint Saving Bank Account No. 910010038962786 held by the assesseeand his wife viz. Smt.
Geeta Rani with Axis Bank Ltd., Jind, the case of the assessee was reopened u/s 147 of the Act. In compliance to the notice
ITA 1581/CHD/2019 A.Y. 2011-12 3 issued u/s 148 dated 28.03.2018 it was initially requested by the assessee that his original return of income may be treated as the return filed in compliance to the said notice. However, the assessee thereafter filed his return of income declaring a total income of Rs. 1,70,100/- + Agricultural Income of Rs. 9,20,100/-.
The aforesaid return of income filed by the assessee in compliance to notice issued u/s 148 of the Act was thereafter acted upon by the department and a notice u/s 143(2) alongwith a questionnaire was issued to the assessee.
During the course of the assessment proceedings, it was observed by the A.O that deposits in cash aggregating to an amount of Rs. 11,52,000/- were made in the aforementioned joint SB AccountNo. 910010038962786 with Axis Bank Ltd., Jind,as under :
Axis Bank Ltd,Jind A/c 910010038962786 Smt. Geeta Rani & Shri Kanwar Rajinder Singh Cash Deposit 16.10.2010 Rs. 2,000/- Cash deposit 01.11.2010 Rs. 2,00,000/- Cash Deposit 04.11.2010 Rs. 3,00,000/- Cash Deposit 11.12.2010 Rs. 2,50,000/- Cash Deposit 13.12.2010 Rs. 4,00,000/- Total Rs. 11,52,000/- On being called upon to put forth an explanation as regards the source of the aforesaid cash deposits, it was inter-alia submitted by the assessee that an amount of Rs. 4 lacs was deposited by ITA 1581/CHD/2019 A.Y. 2011-12 4 his wife (Joint Account Holder) on 13.12.2010. As regards the source of the balance cash deposits of Rs. 7,52,000/-, it was submitted by the assessee that the same was out of his agriculture income and old ‘udhaar’/sundry debtors pertaining to the said source of income, viz - (i) cash of Rs. 2 lacs deposited on 01.11.2010 was out of the old ‘udhaar’ of Rs. 8,72,186/- that was recoverable on 31.03.2010; (ii) cash of Rs. 2,50,000/- deposited on 11.12.2010 was out of the aforesaid old ‘udhaar’ and agriculture income; and (iii) cash of Rs. 3 lacs deposited on 04.11.2010 was out of the theka/lease amount in respect of agricultural land admeasuring 10 acres i.e. 5 acres given to his real brother Shri Balbir Singh S/o Shri Kam Singh @ Rs. 30,000/- per acre (received on 02.11.2010) ANDtheka/lease of 5 acres of land given to his other brother Shri Raj Kumar S/o Shri Kam Singh resident of village Muwana @ Rs. 30,000/- per acre (received on 03.11.2010). In order to substantiate his claim of having received the lease money from the aforementioned persons, the assessee placed on record the “affidavits” of the aforesaid respective persons i.e. S/shri Balbir Singh and Raj Kumar. However, the A.O after deliberating on the submissions filed by the assessee was not persuaded to subscribe to the same. Being of the view that the assessee had failed to ITA 1581/CHD/2019 A.Y. 2011-12 5 substantiate the source of the aforesaid cash deposits of Rs. 7,50,000/- the A.O added the same as the income of the assessee from “other sources”. Accordingly, on the basis of his observations recorded in the assessment order the A.O vide his order passed u/s 143(3)/147, dated 27.12.2018 assessed the income of the assessee at Rs.9,20,000/- + agriculture income Rs. 9,20,100/-.
Aggrieved, the assessee assailed the assessment order in appeal before the CIT(A). However, as the assessee failed to put up an appearance before the CIT(A), therefore, the latter without adverting to the merits of the case dismissed the appeal in limine.
The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us.At the very outset of the hearing of the appeal it was averred by the ld. Authorized Representative(for short ‘A.R’) for the assessee that the CIT(A) had erred in law and the facts of the case in dismissing the appeal in liminei.ewithout dealing with the grounds on the basis of which the impugned order was assailed before him. Adverting to the merits of the case, it was submitted by the ld. A.R thatthe A.O had at no stage doubted the genuineness and veracity of ITA 1581/CHD/2019 A.Y. 2011-12 6 the old ‘udhaar’/sundry debtors appearing in the assessee's balance sheet as on 31.03.2010 out of which part of the cash deposits made in the bank account were sourced. In the backdrop of his aforesaid submissions, it was averred by the ld. A.R that in case the A.O had any doubts as regards the genesis of generation of the old ‘udhaar’/sundry debtors then the consequential addition in respect of such brought forward accumulated balance could not have been made in the year under consideration. Apart from that, it was submitted by the ld.A.R that though the A.O had raised certain flimsy doubts as regards the genuineness of the assessees agriculture income, however, he had finally accepted the same as returned by the assessee while framing the assessment vide his order passed u/s 143(3)/147, dated 27.12.2018. On the basis of his aforesaid contentions it was submitted by the ld. A.R that as the source of the cash deposits of Rs. 7,50,000/- (supra) was clearly explained by the assessee, therefore, no part of the same could have been treated as the income of the assessee from undisclosed sources.
Per contra, the ld. Departmental Representative (for short “D.R”) relied on the orders of the lower authorities. As regards
ITA 1581/CHD/2019 A.Y. 2011-12 7 the claim of the ld. A.R that the assessee had placed on record the “affidavits” of the persons to whom the agricultural land had been leased out, it was submitted by the ld. D.R that the same being in the nature of a self-serving document could not be acted upon on a standalone basis.
We have heard the authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record. Admittedly, the assessee had made cash deposits aggregating to Rs. 7,52,000/- in the joint bank account No.910010038962786 that was held by him and his wife, viz. Smt. Geeta Rani with Axis Bank Ltd., Jind. On a perusal of the records, we find, that the assessee had tried to relate the cash deposits of Rs.7,52,000/- to his agriculture income and old ‘udhaar’/sundry debtors resulting therefrom. As is discernible from the assessment order, we find, that though the AO had raised doubts as regards the genuineness and veracity of the assessee’s claim of having earned the agriculture income from 25 acres of agricultural land owned by him at Village: Muwana, Tehsil – Safidon, District Jind, but then, while framing the assessment he had vide his order passed u/s 143(3)/147, dated 27.12.2018 accepted the agriculture income of ITA 1581/CHD/2019 A.Y. 2011-12 8 Rs. 9,20,100/- that was disclosed by the assessee in his return of income filed in compliance to Notice u/s 148 of the Act. In sum and substance, the A.O while framing the assessment had accepted the assessee's claim of having earned agriculture income of Rs. 9,20,100/- during the year under consideration. In the backdrop of the aforesaid facts, we are of a strong conviction that now when the A.O has gone by the claim of the assessee and accepted the agriculture income as returned by him, therefore, there remained no occasion for him to draw adverse inferences either as regards the assessee’s claim of having earned agriculture income during the year under consideration or the quantum thereof. Apart from that, we are unable to concur with the view taken by the lower authorities that the “affidavits” of the lessees i.e. S/shri Balbir Singh and Raj Kumar, sons of Shri Kam Singh as were placed on record by the assessee to substantiate the factum of having leased out 10 acres of land to the said respective persons were to be summarily discarded and not to be acted upon. In our considered view, if the A.O had any doubts as regards the facts deposed in the “affidavits” then he remained at a liberty to call for the requisite details from the assessee or make necessary verifications on his own. However, the summarily rejection of the ITA 1581/CHD/2019 A.Y. 2011-12 9 “affidavits” without placing on record any material dislodging the depositions of the respective lessees cannot be subscribed on our part.
Be that as it may, we findthat the CIT(A) had summarily dismissed the appeal of the assessee for non-prosecution. As a matter of fact, the CIT(A) had failed to apply his mind to the issues which did arise from the impugned order and was assailed by the assessee before him. We are unable to persuade ourselves to accept the manner in which the appeal of the assessee had been disposed off by the CIT(A). In our considered view, once an appeal is preferred before the CIT(A), it is obligatory on his part to dispose off the same on merits. We are of a strong conviction that it is not open for the CIT(A) to summarily dismiss the appeal on account of non- prosecution of the same by the assessee. Rather, a perusal of Sec.251(1)(a) and (b) as well as the “Explanation” to Sec. 251(2) reveals that the CIT(A) remains under a statutory obligation to apply his mind to all the issues which arises from the impugned order before him. As per the mandate of law, the CIT(A) is not vested with any power to summarily dismiss the appeal for non-prosecution. Our aforesaid view is fortified by the judgment of the Hon’ble High Court of Bombay in the case of CIT Vs. Prem Kumar Arjundas Luthra (HUF) (2017) 297 614 (Bom). In the ITA 1581/CHD/2019 A.Y. 2011-12 10 aforementioned case the Hon’ble jurisdictional High Court had observed as under:
“8. From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the AO to make further inquiry and report the result of the same to him as found in Sec. 250 of the Act. F urther, Se c. 250(6) of the Act oblige s the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Sec. 251(1)(a) and (h) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-s. (2) of s. 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under s. 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact w.e.f. 1st June, 2001 the power of the CIT(A) to set aside the order of the AO and restore it to the AO for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) are co-terminus with that of the AO i.e. he can do all that A.O could do. Therefore, just as it is not open to the AO to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the s. 251(1)(a) and (b) and Explanation to Sec. 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non- prosecution as is evident from the provisions of the Act.”
We thus not being persuaded to subscribe to the dismissal of the appeal by the CIT(A) for non-prosecution, therefore, ‘set aside’ the same to his file with a direction to dispose off the same on merits. Needless to say, the CIT(A) shall afford a reasonable opportunity of being heard to the assessee in the course of the de novo appellate proceedings. The grounds ITA 1581/CHD/2019 A.Y. 2011-12 11 of appeal raised by the assessee are disposed off in terms of our aforesaid observations.
Resultantly, the appeal filed by the assessee is allowed for statistical purposes in terms of our aforesaid observations.
Order pronounced on 03rd December,2020