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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SHRI RAJPAL YADAV & SHRI PRADIP KUMAR KEDIA
आदेश / O R D E R
PER SHRI RAJPAL YADAV, JUDICIAL MEMBER : The Assessee is in appeal before the Tribunal challenging the order of Ld.Commissioner of Income Tax(Appeals)-2, Ahmedabad [‘CIT(A)’ in short] dated 12/09/2017 passed for Assessment Year (AY) 2014-15.
The grievance of the assessee is that the Ld.CIT(A) has erred in confirming addition of Rs.7,57,348/- which was added by the Assessing
ITA No.2481 /Ahd/2017 Shri Narendrasinh Mahendrasinh Charan vs. ITO Asst.Year – 2014-15 - 2 - Officer with the aid of section 68 of the Income Tax Act, 1961 (hereinafter referred to as "the Act").
With the assistance of Ld.Representatives, we have gone through the record carefully. It emerges from the record that on scrutiny of accounts, it revealed to the Assessing Officer that assessee has made deposits in cash in the bank. According to the Assessing Officer, when he was confronted with regard to such deposit for finding out source of such deposits, then assessee agreed for the addition. The Ld.CIT(A) concurred with the findings of Assessing Officer on the ground that once assessee agreed for addition, then he has no right to challenge that finding in an appeal. The Ld. first appellate authority has made reference to three following three decisions: 1. Ramanlal Kamdar vs. CIT :: 108 ITR 73 (mad.) 2. Mahesh B.Shah vs. ACIT & Anr. :: 238 ITR 130(ker.) and 3. Sterling Machine Tools vs. CIT ::123 ITR 181 (alla.).
It is true that admission being declaration against an interest is a good evidence because that will prohibit the Investigating Officer to make enquiry further. Such admission would work as an estoppel against the person who made the admission. But it is to be remembered that admission is always rebuttable if it is demonstrated that such admission was made under some misconception of facts, misconception of law or
ITA No.2481 /Ahd/2017 Shri Narendrasinh Mahendrasinh Charan vs. ITO Asst.Year – 2014-15 - 3 - under some coercion, then that admission should not be used against the assessee. It is true that confession voluntarily could be a good evidence but once it is demonstrated that such admission was untrue under misconstruction of facts or misconception of law, then according to the rule of prudence it should not be considered as a sound evidence against such declarant. It is also a fact that assessee has not pleaded specifically in the statement of facts filed before the Ld.CIT(A) challenging such admission, similarly not pleaded before the Tribunal but the conduct of the assessee by way of filing appeals upto the second appellate authority do demonstrate that he was not satisfied with his admission before the Assessing Officer. It is an implied challenge. To our mind, assessee should have taken the plea that such admission was based on wrong assumption at the first available time when he filed the appeal before the CIT(A). But considering his stand for keeping the litigation alive upto the second appellate authority coupled with fact that admission under some misconception resulting into the tax liability on an addition of RS.7.57 lakhs vis-a-vis negligence of not taking any plea in the statement of facts filed before the Ld.CIT(A) is looked into, then punishment in the shape of tax liability is disproportionate than the negligence. However, the assessee cannot be absolved from his negligence because he has stopped the Assessing Officer from further enquiry and dragged the revenue in unnecessary litigation upto this level. Therefore, we deem it proper to allow this appeal subject to payment of Rs.5,000/- as cost. We
ITA No.2481 /Ahd/2017 Shri Narendrasinh Mahendrasinh Charan vs. ITO Asst.Year – 2014-15 - 4 - set aside both the orders of the lower authorities and restore this issue to the file of Assessing Officer for fresh adjudication. The assessee shall deposit Rs.5,000/- in the Government Exchequer and submit the evidence before the Assessing Officer when fresh assessment proceedings are being taken against him in pursuance of this order. The observations made by us will not impair or injure the case of the Assessing Officer and will not cause any prejudice to the defence/explanation of the assessee. He will be at liberty to give any explanation in support of his case.
In the result, appeal of the assessee is allowed. 5. Order pronounced in the Court on 15th March-2019 at Ahmedabad.
Sd/- Sd/- ( PRADIP KUMAR KEDIA) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 15/ 03 /2019 ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-2, Ahmedabad �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad