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Income Tax Appellate Tribunal, “B” BENCH, SURAT
Before: SHRI AMARJIT SINGH&
PER Ms. MADHUMITA ROY - JM:
The instant appeal filed by the assessee is against the order dated 22.11.2016 passed by the Commissioner of Income Tax (Appeals)-2, Vadodara arising out of the assessment order dated 20.03.2015 for the Assessment Year 2012-13 passed by the ITO, Ward-3, Nadiad under section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to “The Act”) with the following grounds: “The learned CIT-Appeals has erred in law and facts in confirming the unsecured loan as undisclosed income of Rs.39,89,378/-. The same being bad in law and be deleted now.”
The assessee being an individual filed his return of income on 21.09.2012 declaring total income at Rs.6,07,099/-. Upon scrutiny a notice u/s 143(2) of the Act was issued upon the assessee on 08.08.2013 followed by an another notice dated 27.08.2014 u/s 139D(c) r.w.s. 142(1), in response whereof the assessee furnished his reply on
- 2 - ITA No.411/A/17 Kasambhai K. Vohra vs. ITO Asst.Year – 2012-13 05.09.2014. A detailed questionnaire issued on 19.09.2014 along with a notice u/s 142(1) r.w.s. 129 was also served upon the assessee. During the assessment proceeding upon verification of the Profit and Loss account in tax audit reported so submitted by the assessee, it appeared that the assessee has taken unsecured loan from Gulamnabibhai Yakubbhai Vohra to the tune of Rs.32,00,000/- on 29.08.2011 and Rs.39,38,378/- on 21.10.2011. In spite of repeated opportunities given by the assessee, the assessee could not prove the genuineness of the transaction in respect of the unsecured loan taken on 21.10.2011 to the tune of Rs.39,38,378/-. Since the said Shri Vohra was residing in USA, the details whereof so asked by the Assessing Officer relating to the transaction was not available with the assessee. Ultimately, the Learned Assessing Officer treated such deposits as bogus and confirmed the same in the hands of the assessee. Such addition u/s 68 was challenged by the assessee with the argument that the AO has accepted Rs.32,00,000/- and rejected Rs.39,38,378/- received directly credited in assessee’s bank account on 21.10.2011. The Bank Certificate for the Bank of India dated 19.01.2016 regarding the credit of Bill ID No. 2000IRT11002938, copy of tax return of the Shri Gulamnabi Yakubbhai Vohra as proof of income along with the USA passport were also filed. However, the bank statement of the depositors wherefrom loan of Rs.39,38,378/- has been received by the assessee was not furnished as desired by the Learned AO, neither placed before the First Appellate Authority; considering this aspect of the matter, order passed by Learned AO was confirmed and hence the appeal before us.
At the time of hearing of the matter the Learned Advocate appearing for the assessee submitted before us that the documents which was directed to be furnished by the Learned AO was not available with the assessee at that material point of time. The assessee was unable to obtain the documents lying with the said NRI residing at USA. However, the affidavit filed by the assessee relating to the details of the transaction, foreign Remittance Advice/certificate, affidavit affirmed by Gulamnabi Yakubbhai
- 3 - ITA No.411/A/17 Kasambhai K. Vohra vs. ITO Asst.Year – 2012-13 Vohra, passport, Bank statement as well as US tax return of the said Gulamnabi Vohra along with further documents were placed before us. It was further submitted by the Learned AR before us that since those documents were not available with the assessee during the assessment proceeding or in the appellate stage the same could not be placed before the authorities below and hence the additional documents are to be considered by us. The Learned Representative appearing for the revenue, however, did not raise any serious objection to the fair submission made by the Learned Counsel for the assessee.
We have heard the respective parties, perused the materials available on record including the documents so placed before us by the assessee as the additional evidences for proper adjudication of the matter. The reasons so assigned by the Learned Counsel for the assessee for not furnishing those documents before the authorities below seems to be justified. Taking into consideration the entire aspect of the matter, we deem it fit and proper to remit the issue to the file of the Learned AO for fresh adjudication of the same. While doing so, we further direct the Learned AO to give a reasonable opportunity of hearing to the assessee and also to take into consideration evidences so placed before us or any further evidence which the assessee may choose to file at the time of the hearing of the assessment proceeding and to pass a reasoned order thereof. Thus, assessee’s ground of appeal is thus allowed for statistical purposes.
In the result, assessee’s appeal is thus partly allowed. This Order pronounced in Open Court on 22/01/2019
Sd/- Sd/- ( AMARJIT SINGH ) ( Ms. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 22/01/2019 Priti Yadav, Sr.PS
- 4 - ITA No.411/A/17 Kasambhai K. Vohra vs. ITO Asst.Year – 2012-13
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, Vadodara. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 07/01/2019 (Dictation Page 5) 2. Date on which the typed draft is placed before the Dictating Member …08/01/2019 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S …10/01/2019 5. Date on which the fair order is placed before the Dictating Member for pronouncement… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………