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Income Tax Appellate Tribunal, MUMBAI BENCH “E” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI RAJ KUMAR CHAUHAN
1. The captioned appeals by the assessee are directed against two separate orders passed by the Ld. Commissioner of Income-tax (Appeals) – Pune [in short ‘the Ld. CIT(A)’] in relation to assessment years 2015-16 and 2017-18 respectively.
Both the appeals being connected with the same assessee, therefore, same were heard together and disposed off by way of this Mohammad Suber Ibrahim Patel Mohammad Suber Ibrahim Patel 2 & 469/MUM/2024 & 469/MUM/2024 consolidated order for the sake of convenience. The grounds raised consolidated order for the sake of convenience. The grounds raised consolidated order for the sake of convenience. The grounds raised by the assessee in the assessee in ITA No. 468/Mum/2024 for assessment year for assessment year 2015-16 are reproduced as under: 16 are reproduced as under:
During the f y 2014 During the f y 2014-2015 I have deposited around 2015 I have deposited around 2000000/- in cash in my saving bank account in union in cash in my saving bank account in union in cash in my saving bank account in union bank of India .The break up of this source of cash deposited bank of India .The break up of this source of cash deposited bank of India .The break up of this source of cash deposited is mentioned below: is mentioned below:- ? Advances from various customers ? Advances from various customers - Rs 1700000/ Rs 1700000/- Out of the cash withdrawals from bank wals from bank – Rs 300000/-. 2 During the year I had purchased a land from Mr Sanjay 2 During the year I had purchased a land from Mr Sanjay 2 During the year I had purchased a land from Mr Sanjay More and the payment is done through bank and nothing More and the payment is done through bank and nothing More and the payment is done through bank and nothing had been paid in cash. Copy of purchase agreement and had been paid in cash. Copy of purchase agreement and had been paid in cash. Copy of purchase agreement and ledger of Plot payment done to Mr Sanjay More is attached ledger of Plot payment done to Mr Sanjay More is attached ledger of Plot payment done to Mr Sanjay More is attached for your reference your reference. 3. Briefly stated, facts of the case are that the assessee Briefly stated, facts of the case are that the assessee Briefly stated, facts of the case are that the assessee was engaged in the business of construction. engaged in the business of construction. No regular return of No regular return of income was filed by the assessee. income was filed by the assessee. The case of the assessee The case of the assessee was reopened by way of notice u/s 147 of the Income by way of notice u/s 147 of the Income-tax Act, 1961 (in tax Act, 1961 (in short ‘the Act’) pursuant to short ‘the Act’) pursuant to a survey action and notice u/s 148 of and notice u/s 148 of the Act was issued asking the assessee to file return of income. The the Act was issued asking the assessee to file return of income the Act was issued asking the assessee to file return of income assessment was reopened on the basis of information related to assessment was reopened on the basis of information related to assessment was reopened on the basis of information related to cash deposit in the bank account and source of investment in cash deposit in the bank account and source of investment in cash deposit in the bank account and source of investment in immovable property. immovable property. In response, the assessee filed return of In response, the assessee filed return of income on 30.09.2020 declaring total income at Rs.11,22,290/-.. income on 30.09.2020 declaring total income at Rs.11,22,290/ income on 30.09.2020 declaring total income at Rs.11,22,290/ During the course of assessment, the assessee filed certain During the course of assessment, the assessee filed certain During the course of assessment, the assessee filed certain explanation and documentary evidence, however same were rejected on and documentary evidence, however same were rejected on and documentary evidence, however same were rejected and additions were made. On further appeal also the assessee made were made. On further appeal also the assessee made were made. On further appeal also the assessee made
Mohammad Suber Ibrahim Patel Mohammad Suber Ibrahim Patel 3 & 469/MUM/2024 & 469/MUM/2024 part compliance and therefore, appeal of the assessee was part compliance and therefore, appeal of the assessee was part compliance and therefore, appeal of the assessee was dismissed.
Before us, the Ld. counsel for the assessee filed a Paper Boo Before us, the Ld. counsel for the assessee filed a Paper Boo Before us, the Ld. counsel for the assessee filed a Paper Book containing pages 1 to 113 along with an application for filing containing pages 1 to 113 along with an application for filing containing pages 1 to 113 along with an application for filing additional evidences s under Rule 29 of the Income under Rule 29 of the Income-tax Appellate Tribunal Rules, 1963. The Ld. counsel for the assessee submitted Tribunal Rules, 1963. The Ld. counsel for the assessee submitted Tribunal Rules, 1963. The Ld. counsel for the assessee submitted that the earlier Chartered Accountant had left the office due to that the earlier Chartered Accountant had left the office due t that the earlier Chartered Accountant had left the office due t certain dispute and therefore, the records certain dispute and therefore, the records maintained by him maintained by him remained in his personal laptop and could not be submitted at the personal laptop and could not be submitted at the personal laptop and could not be submitted at the time of appellate proceedings before the Ld. CIT(A). Now, the time of appellate proceedings before the Ld. CIT(A). Now, the time of appellate proceedings before the Ld. CIT(A). Now, the assessee has obtained all those relevant documents and details and assessee has obtained all those relevant documents and details an assessee has obtained all those relevant documents and details an wishes to admit the same as additional evidence. He referred to the wishes to admit the same as additional evidence. He referred to the wishes to admit the same as additional evidence. He referred to the relevant additional evidence filed in Paper Book. relevant additional evidence filed in Paper Book.
We have heard rival submissions of the parties on the issue of We have heard rival submissions of the parties on the issue of We have heard rival submissions of the parties on the issue of admissibility of the additional evidence. The additional evidence admissibility of the additional evidence. The additional evidence admissibility of the additional evidence. The additional evidence referred by the assessee relate to the issue in dispute of the cash erred by the assessee relate to the issue in dispute of the cash erred by the assessee relate to the issue in dispute of the cash deposits and investment in the immovable property, which go ment in the immovable property, which go to the ment in the immovable property, which go root of the issue in dispute. We find that the Co root of the issue in dispute. We find that the Co-ordinate Bench of ordinate Bench of the Tribunal in the case of the Tribunal in the case of UOP LIC v. Addl. Director of UOP LIC v. Addl. Director of Income Tax, International Taxation, Circle 2(2), New Delhi (2007) Tax, International Taxation, Circle 2(2), New Delhi (2007) Tax, International Taxation, Circle 2(2), New Delhi (2007) reported in 108 ITD 186 reported in 108 ITD 186 held that the Tribunal can allow the held that the Tribunal can allow the additional evidence if assessee satisfies for any substantial cause in additional evidence if assessee satisfies for any substantial cause in additional evidence if assessee satisfies for any substantial cause in not producing before lower authorities. The relevant finding of the not producing before lower authorities. The relevant find not producing before lower authorities. The relevant find Tribunal is reproduced as under: Tribunal is reproduced as under:
Mohammad Suber Ibrahim Patel Mohammad Suber Ibrahim Patel 4 & 469/MUM/2024 & 469/MUM/2024
“30. It is a settled position that production of additional 30. It is a settled position that production of additional 30. It is a settled position that production of additional evidence at the appellate stage is not a matter of right to evidence at the appellate stage is not a matter of right to evidence at the appellate stage is not a matter of right to litigating public and allowing of production of additional litigating public and allowing of production of additional litigating public and allowing of production of additional evidence is in the discretion of evidence is in the discretion of the Tribunal. The said the Tribunal. The said discretion however, is to be exercised judicially and not discretion however, is to be exercised judicially and not discretion however, is to be exercised judicially and not arbitarily. As held by Hon’ble M.P. High Court in the case of arbitarily. As held by Hon’ble M.P. High Court in the case of arbitarily. As held by Hon’ble M.P. High Court in the case of CIT v. Kum. Satya Setia [1983] CIT v. Kum. Satya Setia [1983] 143 ITR 486 1, it is within 1, it is within the discretion of th the discretion of the appellate authority to allow production e appellate authority to allow production of additional evidence if the said authority requires any of additional evidence if the said authority requires any of additional evidence if the said authority requires any document to enable it to pass orders or for any other document to enable it to pass orders or for any other document to enable it to pass orders or for any other substantial cause. The Tribunal is the final fact substantial cause. The Tribunal is the final fact-finding finding body under the scheme of the Income body under the scheme of the Income-tax Act and powers, and powers, therefore, have necessarily to be exercised by it for deciding therefore, have necessarily to be exercised by it for deciding therefore, have necessarily to be exercised by it for deciding the questions of fact. While exercising its powers, if the the questions of fact. While exercising its powers, if the the questions of fact. While exercising its powers, if the Tribunal is of the opinion that additional evidence is Tribunal is of the opinion that additional evidence is Tribunal is of the opinion that additional evidence is material in the interest of justice for deciding a particular material in the interest of justice for deciding a particular material in the interest of justice for deciding a particular issue, its discretion cannot be interfered with unless it has , its discretion cannot be interfered with unless it has , its discretion cannot be interfered with unless it has been exercised on non been exercised on non-existing or imaginary grounds. In the existing or imaginary grounds. In the case of Mahavir Singh (supra ) cited by the learned counsel case of Mahavir Singh (supra ) cited by the learned counsel case of Mahavir Singh (supra ) cited by the learned counsel for the assessee, it was held that section 107 of CPC for the assessee, it was held that section 107 of CPC for the assessee, it was held that section 107 of CPC enables an appellate cour enables an appellate court to take additional evidence or to t to take additional evidence or to require such other evidence to be taken subject to such require such other evidence to be taken subject to such require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order 41 conditions and limitations as are prescribed under Order 41 conditions and limitations as are prescribed under Order 41 of Rule 27 of CPC. It was also held that the parties are not of Rule 27 of CPC. It was also held that the parties are not of Rule 27 of CPC. It was also held that the parties are not entitled, as of right, to the admission of entitled, as of right, to the admission of such evidence and such evidence and the matter is entirely in the discretion of the court which is the matter is entirely in the discretion of the court which is the matter is entirely in the discretion of the court which is of course to be exercised judicially and sparingly. It was of course to be exercised judicially and sparingly. It was of course to be exercised judicially and sparingly. It was observed that Order 41, Rule 27 of CPC envisages certain observed that Order 41, Rule 27 of CPC envisages certain observed that Order 41, Rule 27 of CPC envisages certain circumstances when additional evidence can be adduced circumstances when additional evidence can be adduced circumstances when additional evidence can be adduced and one of such circumstances is where the appellate court ne of such circumstances is where the appellate court ne of such circumstances is where the appellate court requires any document to be produced or any witness to be requires any document to be produced or any witness to be requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any examined to enable it to pronounce judgment or for any examined to enable it to pronounce judgment or for any other substantial cause. It was also clarified that the other substantial cause. It was also clarified that the other substantial cause. It was also clarified that the expression expression "to "to enable enable it it to to pronounce prono unce judgment" judgment" contemplates a situation when the appellate court finds contemplates a situation when the appellate court finds contemplates a situation when the appellate court finds itself unable to pronounce judgment owing to a lacuna or itself unable to pronounce judgment owing to a lacuna or itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands. In this context, it was defect in the evidence as it stands. In this context, it was defect in the evidence as it stands. In this context, it was further clarified that the ability to pronounce a judgment is further clarified that the ability to pronounce a judgment is further clarified that the ability to pronounce a judgment is to be understood as the ability to pronounce a judgment understood as the ability to pronounce a judgment understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. This position satisfactory to the mind of court delivering it. This position satisfactory to the mind of court delivering it. This position was reiterated again by the Hon’ble Supreme Court in the was reiterated again by the Hon’ble Supreme Court in the was reiterated again by the Hon’ble Supreme Court in the case of Syed Abdul Khader v. Rami Reddy AIR 1979 SC case of Syed Abdul Khader v. Rami Reddy AIR 1979 SC case of Syed Abdul Khader v. Rami Reddy AIR 1979 SC 553 cited by the learned counsel 553 cited by the learned counsel for the assessee. In the for the assessee. In the case of Municipal Corporation of Greater Bombay v. Lala case of Municipal Corporation of Greater Bombay v. Lala case of Municipal Corporation of Greater Bombay v. Lala Panchan AIR 1965 SC 1008 cited by the learned counsel for Panchan AIR 1965 SC 1008 cited by the learned counsel for Panchan AIR 1965 SC 1008 cited by the learned counsel for the assessee, it was observed by the Hon’ble Supreme the assessee, it was observed by the Hon’ble Supreme the assessee, it was observed by the Hon’ble Supreme Court that the power to admit additional evidence does not Court that the power to admit additional evidence does not Court that the power to admit additional evidence does not Mohammad Suber Ibrahim Patel Mohammad Suber Ibrahim Patel 5 & 469/MUM/2024 & 469/MUM/2024 entitle the appellate court to let in fresh evidence only for le the appellate court to let in fresh evidence only for le the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way the purpose of pronouncing judgment in a particular way the purpose of pronouncing judgment in a particular way and it is only for removing a lacuna in the evidence that the and it is only for removing a lacuna in the evidence that the and it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. appellate court is empowered to admit additional evidence. appellate court is empowered to admit additional evidence. In the case of Arjan S In the case of Arjan Singh v. Kartar Singh AIR 1951 SC 193, ingh v. Kartar Singh AIR 1951 SC 193, it was held that the discretion given to the appellate court it was held that the discretion given to the appellate court it was held that the discretion given to the appellate court by Order 41, Rule 27 of CPC to receive and admit additional by Order 41, Rule 27 of CPC to receive and admit additional by Order 41, Rule 27 of CPC to receive and admit additional evidence is not an arbitrary one but is a judicial one evidence is not an arbitrary one but is a judicial one evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified circumscribed by the limitations specified in that Rule. It in that Rule. It was also held that the legitimate occasion for the was also held that the legitimate occasion for the was also held that the legitimate occasion for the application of the said Rule is when on examining the application of the said Rule is when on examining the application of the said Rule is when on examining the evidence as it stands some inherent lacuna or defect evidence as it stands some inherent lacuna or defect evidence as it stands some inherent lacuna or defect becomes apparent. To the similar effect is another decision becomes apparent. To the similar effect is another decision becomes apparent. To the similar effect is another decision of Hon’ble Supreme C of Hon’ble Supreme Court in the case of Natha Singh v. ourt in the case of Natha Singh v. Financial Commissioner, Taxation AIR 1976 SC 1053. Financial Commissioner, Taxation AIR 1976 SC 1053.” ” 5.1 In view of the above, the additional evidence In view of the above, the additional evidence In view of the above, the additional evidences filed by the assessee are accepted and accordingly matter is restored back to assessee are accepted and accordingly matter is restored back to assessee are accepted and accordingly matter is restored back to the file of the Assessing Officer for adjudication after verification of the file of the Assessing Officer for adjudication after verification of the file of the Assessing Officer for adjudication after verification of the additional evidence in accordance with law. the additional evidence in accordance with law.
The grounds of appeal of the assessee are accordingl The grounds of appeal of the assessee are accordingl The grounds of appeal of the assessee are accordingly allowed for statistical purposes. for statistical purposes.
7. The grounds raised in s raised in are reproduced s raised in ITA No. 469/Mum/2024 as under:
1. As I have deposited Rs. 2544000/ 1. As I have deposited Rs. 2544000/- in cash in my in cash in my Idbi bank account .The break up of this source of cash deposited bank account .The break up of this source of cash deposited bank account .The break up of this source of cash deposited is mentioned below: is mentioned below:- ? advances from various customers from various customers - Rs 2235000/ Rs 2235000/- (copy of which is attached here) ? out of the which is attached here) ? out of the cash withdrawals from bank cash withdrawals from bank - Rs 309000/-.As I have .As I have deposited RS 244500W deposited RS 244500W- in cash in my Union bank account account .The break up of this source of cash deposited is mentioned .The break up of this source of cash deposited is mentioned .The break up of this source of cash deposited is mentioned below:- ? advances from various customers ? advances from various customers - Rs 2039500' Rs 2039500'- (copy of which is attached here) ? out of the cash (copy of which is attached here) ? out of the cash (copy of which is attached here) ? out of the cash withdrawals from withdrawals from bank-Rs405500A 2. FURTHER I HERE BY INFORM YOU THAT IN APPEAL I HERE BY INFORM YOU THAT IN APPEAL ORDER [T IS STATE THAT 1 HAD ORDER [T IS STATE THAT 1 HAD NOT PAID SELF NOT PAID SELF
Mohammad Suber Ibrahim Patel Mohammad Suber Ibrahim Patel 6 & 469/MUM/2024 & 469/MUM/2024
ASSESSMENT TAX AMOUNTING TO RS ASSESSMENT TAX AMOUNTING TO RS 500000/- IN THIS IN THIS YEAR BUT I HERE INFORM YOU THAT 1 HAD PAID YEAR BUT I HERE INFORM YOU THAT 1 HAD PAID YEAR BUT I HERE INFORM YOU THAT 1 HAD PAID THIS TAX TAX TAX WRONGLY WRONGLY WRONGLY IN IN IN ASSESSMENT ASSESSMENT ASSESSMENT YEAR YEAR YEAR 2019-2020 2019 2019 INSTAED OF ASSESSMENT INSTAED OF ASSESSMENT YEAR 2017-2018 AND ALSO I 2018 AND ALSO I HAD SUBMITTED A REQUEST TO AO FOR SUBMITTED A REQUEST TO AO FOR SHIFTING THIS SHIFTING THIS CHALLAN FROM CHALLAN FROM ASSESSMENT YEAR 2019-2020 TO 2020 TO ASSESSMENT Y ASSESSMENT YEAR 2017-2018 8. The Ld. CIT(A) has dismissed the appeal for failure on the part The Ld. CIT(A) has dismissed the appeal for failure on the part The Ld. CIT(A) has dismissed the appeal for failure on the part of the assessee in depositing the self of the assessee in depositing the self-assessment tax. The relevant assessment tax. The relevant part of the finding of the Ld. CIT(A) is reproduced as under: part of the finding of the Ld. CIT(A) is reproduced as under: part of the finding of the Ld. CIT(A) is reproduced as under:
34. The appeal has been fixed on severalo 34. The appeal has been fixed on severaloccasions; ccasions; however, the appellant however, the appellant did not bring the correct facts to the did not bring the correct facts to the notice of the undersigned, However, when notice of the undersigned, However, when the (act the (act regarding non regarding non-payment of due taxes was discovered after payment of due taxes was discovered after matching the appellant's Form 35 with the income iax return the appellant's Form 35 with the income iax return the appellant's Form 35 with the income iax return and details of tax and details of tax payments available in OLTAS (On-line tax line tax accounting system) and show cause notice accounting system) and show cause notice u/s 249(4) of u/s 249(4) of the Act was issued, the appellant has not responded. Since, Act was issued, the appellant has not responded. Since, Act was issued, the appellant has not responded. Since, the requirement of section 249(4} (a) of paying the tax due requirement of section 249(4} (a) of paying the tax due requirement of section 249(4} (a) of paying the tax due on the income returned on the income returned at the time of filing of the appeal is filing of the appeal is not complied with by the appellant, the not complied with by the appellant, the appeal presented by appeal presented by the appellant is not admitted as per section 249(4) of the the appellant is not admitted as per section 249(4) of the the appellant is not admitted as per section 249(4) of the U. Act. Accordingly, the appeal for AY 2017 Act. Accordingly, the appeal for AY 2017-18 is DISMISSED 18 is DISMISSED in-iimine.
Before us, the Ld. counsel Before us, the Ld. counsel for the assessee has submitted that essee has submitted that assessee has already paid self assessee has already paid self-assessment tax but inadvertently a assessment tax but inadvertently a wrong assessment year was m wrong assessment year was mentioned in the challan number and entioned in the challan number and for which the assessee has already filed an application for the assessee has already filed an application for the assessee has already filed an application for rectification before the AO, which is pendi before the AO, which is pending for disposal. ng for disposal. Therefore, he requested that he requested that matter may be restored back to the file matter may be restored back to the file of the Ld. CIT(A) for deciding afresh on merit. of the Ld. CIT(A) for deciding afresh on merit.
8.1 We have heard rival submission on the issue in dispute and We have heard rival submission on the issue in dispute and We have heard rival submission on the issue in dispute and perused the relevant material on record. In perused the relevant material on record. In view of self view of self-assessment
Mohammad Suber Ibrahim Patel Mohammad Suber Ibrahim Patel 7 & 469/MUM/2024 & 469/MUM/2024 tax already paid by the assessee subject to rectification of the tax already paid by the assessee subject to rectification of the tax already paid by the assessee subject to rectification of the assessment year, which is pending before the Income which is pending before the Income-tax Authority. which is pending before the Income We feel it appropriate to restore the matter back to the file of the Ld. We feel it appropriate to restore the matter back to the file of the Ld. We feel it appropriate to restore the matter back to the file of the Ld. CIT(A) for verification of the payment o CIT(A) for verification of the payment of the self-assessment tax by assessment tax by the assessee and thereafter, decide the issue on merit in accordance the assessee and thereafter, decide the issue on merit in accordance the assessee and thereafter, decide the issue on merit in accordance with law. The grounds of appeal by the assessee are accordingly with law. The grounds of appeal by the assessee are accordingly with law. The grounds of appeal by the assessee are accordingly allowed for statistical purposes. allowed for statistical purposes.
In the result, both the appeals of the assessee are allo In the result, both the appeals of the assessee are allo In the result, both the appeals of the assessee are allowed for statistical purposes.