KUNVARJI BHACHU SHAH ,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE -31(2), MUMBAI

The grounds of appeal are as under: 1. The Learned CIT (A), NFAC, Delhi erred in confirming the action taken by the Learned ACIT,Circle-31(2), Mumbai making an addition under section 68 of the Income-tax Act, 1961('Act') by erroneously treating an amount of Rs.57,39,796/- as Unexplained Agricultural Income without appreciating the facts of the case in the right perspective. 2. The Learned CIT (A), NFAC, Delhi has erred in confirming the action taken by the Learned ACIT, Circle-31(2), Mumbai making an addition under section 68 of the Act has treating an amount of Rs. 2,35,20,000/- as Unexplained Unsecured Loan without appreciating the facts of the case in the right perspective. 3. Facts in brief are that the assessee filed return only in response to notices u/s 148 of the Act declaring income of Rs 1,00,437/-stated to be from the business of property. He also disclosed exempted agriculture income of Rs 57,39,796/-.During scrutiny, it was noted by the AO that that the assessee had made several cash deposits in the bank accounts claiming them to be agricultural income as also receipts from several persons. However, details sought were not produced on the ground of illness of the assessee. As a result, the AO added a sum of Rs. 2,35,20,000/- as appearing in the bank account in the names of various persons as unexplained credits u/s 68 of the Act. Besides, agriculture income in the absence of supporting details was treated as Income from Other Sources. Thus, the income was determined at Rs 2,92,39,700/-.

In the subsequent appeal, the assessee agitated the action of the AO in adding unexplained agricultural income of Rs.57,39,796/- and P a g e | 3 A.Y. 2013-14

Before us, the ld.AR has argued that the ld.CIT(A) dismissed the appeal of the assessee in an ex-parte manner without considering all relevant facts of the case as also the contentions of the assessee. 6. We find that the appellate order has been passed in a rather non-speaking manner as neither the issues involved have been duly considered as also the contents of the assessment order, submissions of the assessee or the grounds of appeal have been adjudicated clearly. No independent application of mind is discernible from the appellate order as the ld.CIT(A) has completely failed to evaluate the points of consideration so as to give his own decision on objective analysis of all relevant facts and circumstances of the case in utter disregard to the principles of natural justice and fair play. 7. In the light of above facts, we are of the considered opinion that the ld.CIT(A) has not decided the appeal on merits which is contrary to the mandate of section 250(6) of the Act. The same is reproduced here under for your ready reference: "(6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision."

1 A bare perusal of above provision makes it clear that the CIT(A) is bound to dispose of the appeal before him on merits. Once an appeal is preferred before him, 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 per section 250(4) of the Act. Section 251(l)(a) and (b) 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-section (2) of Section 251 of the Act also makes it dear 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). The appellate order is therefore, deficient in this regard. 8. During the course of hearing, we proposed to send the appeal back to the file of the ld.CIT(A) in the light of above discussion that as the assessee was not provided adequate opportunity of being heard, granting fresh opportunity to the assessee to advance his arguments/submissions before the ld. CIT(A) so as to provide details in connection with the merits of the case and additional evidences, if any to support his contentions. Both the sides did not object to this P a g e | 5 A.Y. 2013-14