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Income Tax Appellate Tribunal, AGRA BENCH: AGRA
Before: SHRI LALIET KUMAR,AND DR. MITHA LAL MEENA
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH: AGRA
BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER,AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER
I.T.A No.94/Agra/2018 (ASSESSMENT YEAR-2009-10)
Shri Naveen GuluMulani, F-343, Vs.. ITO, Ward 2(1)(3), Kamla Nagar, Agra. Agra. PAN:ATGPM5765R (Appellant) (Respondent)
Appellant by Shri Rajendra Sharma, Adv. Assessee by Shri Waseem Arshad, Sr. DR.
Date of Hearing 19.07.2019 Date of Pronouncement 03.09.2019
ORDER Per Dr. M. L. Meena, A.M.: This appeal emanates from the order of the ld. Commissioner of Income Tax (Appeals)-2, Agra [(in short ‘the ld. CIT(A)], dated31.10.2017, for A.Y. 2009-10, wherein assessee has raised the following grounds: “1. That the AO has erred on facts and in law while issuing of notice under Section 148 taking into consideration the deposits made in the bank account as an income, which has escaped assessment. The deposits found in the bank account are not the income within the meaning of Section 147 of the Income Tax Act. The reasons recorded treating the deposits in the bank
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account as an income is against the provisions of Section 147 of the Income Tax Act. The notice issued under Section 148 on the basis of such reason is not justified and is against law, consequent to it, the assessment completed is bad in law, liable to be annulled. 2. That the deposits found in the bank account of the assessee if could not be properly explained to the satisfaction of the AO can be charged to tax treating the same as an income within the meaning of Section 68 of the Income Tax Act, but the deposits are not the real income as defined under Section 2(24) read with Section 14 of the Income Tax Act so as to attract the provisions of Section 147 of the Income Tax Act. The notice issued under Section 148 on the basis of such reason is against the provisions of Section 147 read with Section 2(24)/14 of the Income Tax Act, liable to be annulled. 3. That the AO has erred on facts and in law while making the addition for Rs.47,60,004/- treating the deposits in the bank account as the income of the assessee, no addition is liable to be made, the addition made by the AO and sustained by the learned CIT (Appeals) is liable to be deleted. 4. That while sustaining the addition at Rs.47,60,004/-, the learned CIT (Appeals) has not appreciated the facts and the submissions before them. After taking into consideration the facts of the case, no addition is liable to be made, the addition made by the AO and sustained by learned CIT (Appeals) is liable to be deleted,
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That the learned CIT (Appeals) has erred on facts and in law while sustaining the addition for Rs.5,04,000/- made under the Head 'income from house property", the addition made by the AO and sustained by the learned CIT (Appeals) on this score is liable to be deleted.” 2. Brief facts of the case are that the assessee is engaged in the business of cloth trading in Angola and has earned 30% commission on such sales. In support of his contention he was ask to file copy of his NRE / NRO bank account. 3. At the outset, the ld.AR of the assessee contended that the ld. CIT(A) was not justified in deciding the appeal exparte qua the assessee without appreciating facts of the case. He submitted additional material evidence could not be produced before the ld. CIT(A) as per list enclosed with Written synopsis, for the reasons beyond the control of the assessee, same is admitted. The ld. AR contended that the deposits in the bank account of the assessee if could not be properly explained to the satisfaction of the AO can be charged to tax treating the same as an income within the meaning of Section 68 of the Income Tax Act, but the deposits are not the real income as defined under Section 2(24) read with Section 14 of the Income Tax Act so as to attract the provisions of Section 147 of the Income Tax Act. The notice issued under Section 148 on the basis of such reason is against the provisions of Section 147 read with Section 2(24)/14 of the Income Tax Act, liable to be annulled; that while sustaining the addition at Rs.47,60,004/-, the learned CIT (Appeals) has not appreciated the facts and the submissions before him. 4. He has argued that the additions made of Rs.47,60,004/- u/s 68 and the addition of Rs.5,04,000/- made under the head income from house property and sustained by the ld. CIT(A) without granting sufficient opportunity of being heard to the assessee relying on the decision of ITAT, Agra Bench in the case of Shri
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Alok Agrawal vs. ITO, in ITA No.667/Agr/2018 dated 30.04.2019 where the Tribunal has restored the matter back for want of reasonable opportunity of being heard. 5. Again, the ld. AR submitted that the assessment and the appellate order have been passed exparte as some of the documents required to substantiate the claim of the assessee, remained to be filed before the AO and the learned CIT(A) could not be filed because the assessee being a non resident was not in India and the notices issued could not be served, therefore, he could not make compliances to the notices, hence, ex parte assessment and appellate order have been passed in his case. 6. The ld. AR argued that the documentary evidences which the assessee could not adducein support of his explanation offered before the AO as well as before the ld. CIT(A), for the reason beyond his control being a non- resident and notice was not served, have been filed before the Bench under Rule 29 of the Income Tax Appellate Tribunal Rules, with a request that the same may kindly be admitted as additional evidence.The additional evidence is admitted and which is being extracted as under: - “1. Copy of the bank account maintained by the assessee in India with HDFC Bank along with copy of the certificate issued by the HDFC Bank certifying that the bank at Angola (South Africa) had transferred the amount, wherein the deposits are found by the AO. 2. Copy of the Bank account at Angola (South Africa). 3. Copies of the registered sale deeds of four flats of which the AO has assessed the income under the Head 'rental income'. That as the above documents could not be furnished before the AO being the assessee was out of India, therefore, it is requested that in the equity and natural justice and for the just decision, the aforesaid documents which are now being filed before the Hon'ble Bench may kindly be admitted being these documents are directly related to the root cause of the additions made by the AO.”
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Copy of documents filed as additional evidence by the assessee is listed as under: Sl.No. Documents Page Nos.
Copy of Bank account No. 0121 03 1060002466 with HDFC Bank, Hyderabad maintained by the assessee.
Copy of the certificate issued by HDFC Bank certifying 04-08 that the amount transferred from the bank at Angola
Copy of the bank account of the assessee with Bancobic 09-12 Bank at Angola (South Africa)
Copy of the sale deed dated 11.03.2011 of Flat Nos. 201 13-23 and 202 at Hyderabad.
Copy of the sale deed dated 23.04.2010 of flat No. 903. 24
Copy of the sale deed dated 23.04.2010 of flat No. 25-27 903A
Possession letter of flat No. 903. 28
Possession letter of flat No. 903 A. 29
The ld. DR on the other hand, supported the orders of the Authorities below and submitted that the assessee was given more than sufficient opportunity of
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being heard but he did not avail the same. However, he has not objected to the request of the assessee to restore the matter to the CIT(A). 9. We have heard the submissions of both the parties and have gone through the material available on record. It is noticed that the impugned order has been passed exparte qua the assessee. The ld. CIT (A) has not examined the issue on merits while confirming the additions made by the AO. The CIT(A) has mentioned the factum of issue of notice but did not mention the factum of service of notice on the assessee. Considering the reasons beyond the control of the assessee, being NRI, he could not make compliance before the ld. CIT(A). Considering the plausible explanation and additional material evidence furnished filed under Rule 29 of the Income Tax Appellate Rules, we are of the considered opinion that the matter is restored back to the ld. CIT(A) to adjudicate the matter afresh after considering the additional evidence and granting due opportunity of being heard to the assessee. No doubt, the assessee shall cooperate in the fresh proceedings before the CIT(A). Ordered, accordingly. 10. In the result, the appeal is allowed for statistical purposes.
Order pronounced in the open court on 03/09/2019.
Sd/- Sd/- (Laliet Kumar) (Dr. M.L. Meena) JUDICIAL MEMBER ACCOUNTANT MEMBER *AKV* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT Sr. PRIVATE SECRETARY ITAT, AGRA