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Income Tax Appellate Tribunal, MUMBAI BENCH “G” MUMBAI
Before: SHRI ABY T VARKEY & SHRI OM PRAKASH KANT
PER OM PRAKASH KANT, AM
This appeal has been preferred by the assessee against the order dated 12.07.2022 passed by the Ld. Commissioner of Income- tax (Appeals)-National Faceless Appeal Centre (NFAC), Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2013-14, raising following grounds : 1. Requesting Hon'ble the Income Tax Appellate Tribunal Mumbai bench to afford an opportunity to the assesse to Mrs. Simi Surndra Arya 2 ITA No. 2316/M/2022 present the case of the assessee before Commissioner of present the case of the assessee before Commissioner of present the case of the assessee before Commissioner of Income Tax Appeal which she could not do on account of she Income Tax Appeal which she could not do on account of she Income Tax Appeal which she could not do on account of she being suffering from Cri being suffering from Critical Illness (Paralysis). Due to poor tical Illness (Paralysis). Due to poor health condition. the assesse was not in a state to Check health condition. the assesse was not in a state to Check health condition. the assesse was not in a state to Check her E-mails, as a result of which notice u/s 250 fixing date mails, as a result of which notice u/s 250 fixing date mails, as a result of which notice u/s 250 fixing date of hearing sent to registered email id of assessee went of hearing sent to registered email id of assessee went of hearing sent to registered email id of assessee went unnoticed. Further, the postal communicati unnoticed. Further, the postal communication was also not on was also not send by the Income tax department or NFAC, hence the send by the Income tax department or NFAC, hence the send by the Income tax department or NFAC, hence the matter of CIT (A) was completely left unattended on part of matter of CIT (A) was completely left unattended on part of matter of CIT (A) was completely left unattended on part of the assesse as she being ignorant on account of her ill the assesse as she being ignorant on account of her ill the assesse as she being ignorant on account of her ill health. Since the CIT (A) has wrongly and illegally confirmed health. Since the CIT (A) has wrongly and illegally confirmed health. Since the CIT (A) has wrongly and illegally confirmed addition u/s 68 of Rs 36,00,000 being made By assessing u/s 68 of Rs 36,00,000 being made By assessing u/s 68 of Rs 36,00,000 being made By assessing officer ignoring the facts and circumstances of case, The officer ignoring the facts and circumstances of case, The officer ignoring the facts and circumstances of case, The Hon'ble ITAT Mumbai bench is requested to allow assesse a Hon'ble ITAT Mumbai bench is requested to allow assesse a Hon'ble ITAT Mumbai bench is requested to allow assesse a reasonable opportunity of being heard by either pursuing reasonable opportunity of being heard by either pursuing reasonable opportunity of being heard by either pursuing the appeal filed by her before CIT(A the appeal filed by her before CIT(A) or the case be referred ) or the case be referred back to the assessing officer for fresh consideration. back to the assessing officer for fresh consideration. back to the assessing officer for fresh consideration.
2. On the facts and in the circumstances of the case and in law On the facts and in the circumstances of the case and in law On the facts and in the circumstances of the case and in law the learned assessing officer and CIT Appeal erred in not the learned assessing officer and CIT Appeal erred in not the learned assessing officer and CIT Appeal erred in not accepting the fact that above said amount of Rs 36 lacs accepting the fact that above said amount of Rs 36 lacs accepting the fact that above said amount of Rs 36 lacs was directly paid by her husband on her behalf and shown as directly paid by her husband on her behalf and shown as directly paid by her husband on her behalf and shown as Sundry Creditors in the books and confirmation was Sundry Creditors in the books and confirmation was Sundry Creditors in the books and confirmation was submitted before Assessing Officer to this effect. submitted before Assessing Officer to this effect. submitted before Assessing Officer to this effect.
3. On the facts and in the circumstances of the case and in law On the facts and in the circumstances of the case and in law On the facts and in the circumstances of the case and in law the learned assessing officer and CIT Appeal Both have the learned assessing officer and CIT Appeal Both have the learned assessing officer and CIT Appeal Both have erred in not accepting the fact that property, which was erred in not accepting the fact that property, which was erred in not accepting the fact that property, which was purchased by her was in joint name where she was co purchased by her was in joint name where she was co purchased by her was in joint name where she was co- owner to the extent 32.55 perce owner to the extent 32.55 percent along with her husband nt along with her husband
Mrs. Simi Surndra Arya 3 ITA No. 2316/M/2022 having balance share of 67.45 percent accordingly payment having balance share of 67.45 percent accordingly payment having balance share of 67.45 percent accordingly payment of entire consideration was justified. of entire consideration was justified.
4. On the facts and in the circumstances of the case and in law On the facts and in the circumstances of the case and in law On the facts and in the circumstances of the case and in law the impugned order is bad both on facts and law. the impugned order is bad both on facts and law. the impugned order is bad both on facts and law.
On the facts and in the On the facts and in the circumstances of the case and circumstances of the case and in law the Ld. Appellate Authority has wrongly and illegally the Ld. Appellate Authority has wrongly and illegally the Ld. Appellate Authority has wrongly and illegally confirmed the order of assessment passed by the Assessing confirmed the order of assessment passed by the Assessing confirmed the order of assessment passed by the Assessing Officer.
At the outset, the Ld. Counsel of the assessee submitted that At the outset, the Ld. Counsel of the assessee submitted that At the outset, the Ld. Counsel of the assessee submitted that the appeal has been passed ex the appeal has been passed ex-parte qua the assessee without arte qua the assessee without taking into consideration the submission/arguments on behalf of taking into consideration the submission/arguments on behalf of taking into consideration the submission/arguments on behalf of the assessee. The Ld. Counsel of the assessee also filed a prayer for the assessee. The Ld. Counsel of the assessee also filed a prayer for the assessee. The Ld. Counsel of the assessee also filed a prayer for admission of the following following additional evidence on the issue additional evidence on the issue-in- dispute raised in the ground raised in the ground of appeal : Details of property and respective share of co Details of property and respective share of co-owners owners Payment Details towards cost of property Payment Details towards cost of property ITRV of Surendra Kumar Arya Prop, M/s Sushant Exports ITRV of Surendra Kumar Arya Prop, M/s Sushant Exports ITRV of Surendra Kumar Arya Prop, M/s Sushant Exports Computation of Income of Surendra Kumar Arya Prop, M/s Sushant Computation of Income of Surendra Kumar Arya Prop, M/s Sushant Computation of Income of Surendra Kumar Arya Prop, M/s Sushant Exports Balance Sheet and Profit Balance Sheet and Profit and Loss Statement (F.Y 12 and Loss Statement (F.Y 12-13) Explanation for credits in bank A/C of Surendra Kumar Arya Prop, Explanation for credits in bank A/C of Surendra Kumar Arya Prop, Explanation for credits in bank A/C of Surendra Kumar Arya Prop, M/s Sushant Exports M/s Sushant Exports Bank Statement of Surendra Kumar Arya Prop, M/s Sushant Bank Statement of Surendra Kumar Arya Prop, M/s Sushant Bank Statement of Surendra Kumar Arya Prop, M/s Sushant Exports PAN and confirmation Letter PAN and confirmation Letter Sale Deed
Mrs. Simi Surndra Arya 4 ITA No. 2316/M/2022
The Ld. Departmental Representati The Ld. Departmental Representative (DR) did not seriously ve (DR) did not seriously object for admission of the additional evidence being important for object for admission of the additional evidence being important for object for admission of the additional evidence being important for adjudication of issue- -in-dispute.
We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue-in- dispute and perused the relevant material on record. The finding of dispute and perused the relevant material on record. The findi dispute and perused the relevant material on record. The findi the Ld. CIT(A) on the issue the Ld. CIT(A) on the issue-in-dispute is reproduced as under: dispute is reproduced as under:
“6.3.3. However, during the course of these appellate 6.3.3. However, during the course of these appellate 6.3.3. However, during the course of these appellate proceedings, in support of Ground of appeal, the assessee has proceedings, in support of Ground of appeal, the assessee has proceedings, in support of Ground of appeal, the assessee has not filed any written submissions or any documentary not filed any written submissions or any documentary not filed any written submissions or any documentary evidence or even evidence or even any reply, in spite of issuing several notices any reply, in spite of issuing several notices us 250 for hearing to the assessee. Perusal of email delivery us 250 for hearing to the assessee. Perusal of email delivery us 250 for hearing to the assessee. Perusal of email delivery report obtained from FACELESS ITBA APPEAL MODULE report obtained from FACELESS ITBA APPEAL MODULE report obtained from FACELESS ITBA APPEAL MODULE clearly shows that all the notices u/s 250 for hearing, which clearly shows that all the notices u/s 250 for hearing, which clearly shows that all the notices u/s 250 for hearing, which were sent to the assessee, were duly were sent to the assessee, were duly served on the appellant. served on the appellant. The assessee has made absolutely no compliance to any of The assessee has made absolutely no compliance to any of The assessee has made absolutely no compliance to any of the notices. Neither any written submissions have been filed, the notices. Neither any written submissions have been filed, the notices. Neither any written submissions have been filed, nor any documentary evidence have been submitted in nor any documentary evidence have been submitted in nor any documentary evidence have been submitted in support of the Ground of appeal. support of the Ground of appeal.
6.3.4. 6.3.4. Under Under the the above above cir circumstances, cumstances, the the assesee's assesee's contention raised in the Grounds of appeal that the ledger of contention raised in the Grounds of appeal that the ledger of contention raised in the Grounds of appeal that the ledger of Sushant exports and the source of payments of the assessee Sushant exports and the source of payments of the assessee Sushant exports and the source of payments of the assessee for the property had been duly submitted to the Ld AO, for the property had been duly submitted to the Ld AO, for the property had been duly submitted to the Ld AO, remains completely unacceptable. The AO has categorica remains completely unacceptable. The AO has categorica remains completely unacceptable. The AO has categorically recorded in the assessment order that during assessment recorded in the assessment order that during assessment recorded in the assessment order that during assessment proceedings, the assessee was asked by AO to furnish the IT proceedings, the assessee was asked by AO to furnish the IT proceedings, the assessee was asked by AO to furnish the IT- V, Computation, Bank Statement of the loan party. In V, Computation, Bank Statement of the loan party. In V, Computation, Bank Statement of the loan party. In Mrs. Simi Surndra Arya 5 ITA No. 2316/M/2022 response, the assessee submitted before AO that the loan of response, the assessee submitted before AO that the loan of response, the assessee submitted before AO that the loan of Rs.36,00,000/ Rs.36,00,000/- was shown by the assessee in the sundry n by the assessee in the sundry creditors and has been credited in the ledger account of M/s creditors and has been credited in the ledger account of M/s creditors and has been credited in the ledger account of M/s Sushant Exports, the proprietorship firm of her husband. Sushant Exports, the proprietorship firm of her husband. Sushant Exports, the proprietorship firm of her husband. However, the assessee failed to furnished the copies of bank However, the assessee failed to furnished the copies of bank However, the assessee failed to furnished the copies of bank statements reflecting the payments of Rs.36.0 statements reflecting the payments of Rs.36.00,000/ 0,000/- made for purchase of the property. Besides, confirmation of her for purchase of the property. Besides, confirmation of her for purchase of the property. Besides, confirmation of her husband had also not been filed by the assessee before AQ. husband had also not been filed by the assessee before AQ. husband had also not been filed by the assessee before AQ. Not only these documents were not filed before AO, but even Not only these documents were not filed before AO, but even Not only these documents were not filed before AO, but even during these appellate proceedings, such documents are not during these appellate proceedings, such documents are not during these appellate proceedings, such documents are not submittrd. Under these circumstances, AO has recorded his trd. Under these circumstances, AO has recorded his trd. Under these circumstances, AO has recorded his categorical concluding findings that in the absence of relevant categorical concluding findings that in the absence of relevant categorical concluding findings that in the absence of relevant documentary evidences, merely reflecting a credit entry in the documentary evidences, merely reflecting a credit entry in the documentary evidences, merely reflecting a credit entry in the liability side of the Balance Sheet does not established the liability side of the Balance Sheet does not established the liability side of the Balance Sheet does not established the source of funds. source of funds.
6.3.5. Consequently, the AO's observation are found to be 6.3.5. Consequently, the AO's observation are found to be 6.3.5. Consequently, the AO's observation are found to be absolutely in order that it was the primary onus of the absolutely in order that it was the primary onus of the absolutely in order that it was the primary onus of the assessee to prove the source of funds received to the assessee to prove the source of funds received to the assessee to prove the source of funds received to the satisfaction to the AO, however, the said onus had not been satisfaction to the AO, however, the said onus had not been satisfaction to the AO, however, the said onus had not been discharged by the assessee. discharged by the assessee. Consequently, the AO's action of Consequently, the AO's action of making addition of Rs.36,00,000/ making addition of Rs.36,00,000/-, to the total Income of the , to the total Income of the assessee, as unexplained cash credit u/s 68 of the I.T.Act, assessee, as unexplained cash credit u/s 68 of the I.T.Act, assessee, as unexplained cash credit u/s 68 of the I.T.Act, 1961, is upheld. 1961, is upheld.”
4.1 It is evident from the above finding of the Ld. CIT(A) that issue It is evident from the above finding of the Ld. CIT(A) that issue It is evident from the above finding of the Ld. CIT(A) that issue- in-dispute not had been decided on merit ot had been decided on merit, after taking into fter taking into consideration, submission of the assessee. The Ld. Counsel ion, submission of the assessee. The Ld. Counsel ion, submission of the assessee. The Ld. Counsel submitted, the assessee being new to procedure of issuing notice on submitted, the assessee being new to procedure of issuing notice on submitted, the assessee being new to procedure of issuing notice on Mrs. Simi Surndra Arya 6 ITA No. 2316/M/2022 ITBP portal and therefore, could not file response to the notice ITBP portal and therefore, could not file response to the notice ITBP portal and therefore, could not file response to the notice issued by the Ld. CIT(A). T . CIT(A). The Ld. Counsel of the assessee has filed he Ld. Counsel of the assessee has filed additional evidence which are having impact on the adjudication of additional evidence which are having impact on the adjudication of additional evidence which are having impact on the adjudication of the issue-in-dispute and therefore, we admit the same. Since, the dispute and therefore, we admit the same. Since, the dispute and therefore, we admit the same. Since, the issue-in-dispute has not been decided by the Ld. CIT(A) on merit dispute has not been decided by the Ld. CIT(A) on merit dispute has not been decided by the Ld. CIT(A) on merit and therefore, we fee erefore, we feel appropriate to restore this issue appropriate to restore this issue back to the file of the Ld. CIT(A) for deciding afresh after considering the file of the Ld. CIT(A) for deciding afresh after considering the file of the Ld. CIT(A) for deciding afresh after considering the additional evidence along with other document which would be filed additional evidence along with other document which would additional evidence along with other document which would on behalf of the assessee. The Ld. Counsel appearing on behalf of on behalf of the assessee. The Ld. Counsel appearing on behal on behalf of the assessee. The Ld. Counsel appearing on behal the assessee has given undertaking the assessee has given undertaking that due co-operation shall be operation shall be extended by the assessee in disposal of the extended by the assessee in disposal of the matter before the Ld. matter before the Ld. AO. Accordingly, the grounds raised by the assessee are allowed for . Accordingly, the grounds raised by the assessee are allowed for . Accordingly, the grounds raised by the assessee are allowed for statistical purposes.
5. In the result, the appeal In the result, the appeal filed by the assessee is allowed for filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court/under Rule 34(4) of Order pronounced in the open Court/under Rule 34(4) of Order pronounced in the open Court/under Rule 34(4) of the ITAT Rules, 1963 on the ITAT Rules, 1963 on 29/12/2022. Sd/- Sd/ Sd/- (ABY T VARKEY ABY T VARKEY) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 29/12/2022 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent.
Mrs. Simi Surndra Arya 7 ITA No. 2316/M/2022