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Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI R.S. SYAL & SHRI S.S. VISWANETHRA RAVI
आदेश / ORDER
PER S.S. VISWANETHRA RAVI, JM :
This appeal is filed by the assessee against the order dated 03.01.2014 passed by CIT(A)-II, Nashik for A.Y. 2002-03.
Shri Sunil Ganoo, the Ld.A.R. submits that assessee has no interest to prosecute ground Nos.1, 2, 5, and 6. To that effect an endorsement was made by him and prayed to dismiss the same as not pressed.
Accordingly, ground Nos.1, 2, 5 and 6 are dismissed as not pressed.
Ground No.7 is general in nature and requires no adjudication from us.
We find ground Nos.3 and 4 are inter-linked raised challenging the
action of CIT(A) in confirming the addition of Rs.1,45,000/- made by the
AO u/s 69 of the Act, without affording an opportunity of cross-
examination in the facts and circumstances of the case.
Heard both parties and perused the material available on record.
The contention of Shri Sunil Ganoo, the Ld.A.R. is that the AO made
addition of Rs.1,45,000/- u/s 69 of the Act without giving opportunity to
the assessee for cross-examination of Shri Chhoriya basing on which the
AO proceeded to make addition. The Ld.A.R. referred to Para No.2 of the
assessment order and Para No.9.2 of the CIT(A)’s order and argued the
addition made by the AO and as confirmed by the CIT(A) needs to be
deleted. Alternatively, he placed on record a consolidated order dated
15.07.2019 of this Tribunal in the case of Shri Ratanlal C. Bafna Vs. DCIT
in ITA No.109 & 110/PUN/2014 and submitted that the issue raised in the
present appeal is identical to the issue decided by this Tribunal vide its
order dt.15.07.2019 (supra). He referred to Para No.13 of the said order
and argued that the present issue i.e., addition of Rs.1,45,000/- u/s 69A
of the Act raised in ground Nos. 3 and 4 may be remanded to the file of AO
for his detailed factual verification. Shri P. Walimbe, the Ld. D.R. reported
no objection in remanding the issue raised in ground Nos.3 and 4 to the
file of AO.
We find in the present case the assessment was re-opened on the
basis of search said to have been conducted in the case of Chhoriya Group
and the addition of Rs.1,45,000/- made by the AO u/s 69 of the Act on
the basis of statement alleged to have been made by Shri Kanhaiyalal D.
Chhoriya in the search proceedings involving the assessee. Therefore, we
find the observations made by the Co-ordinate Bench of this Tribunal in
the case of Shri Ratanalal C. Bafna Vs. DCIT (supra) that if the income of
the entries which were found in the diary during the course of search in the
premises of Chhoriya group, had been declared by Mr. Chhoriya as his own
income, in such circumstances, no addition should sustain in the hands of
the assessee. However, if it is found that there is a contrary scenario in that
case, addition has to be sustained in the hands of the assessee and
remanded the matter to the file of AO for a detailed factual verification
which is at Para No.13 of the said order, for ready reference is reproduced
as under :
“13. We have perused the case records and heard the rival contentions on merits. We are of the considered view that if the income of the entries which were found in the diary during the course of search in the premises of Chhoriya group, had been declared by Mr. Chhoriya as his own income, in such circumstances, no addition should sustain in the hands of the assessee. However, if it is found that there is a contrary scenario in that case, addition has to be sustained in the hands of the assessee. This issue, therefore needs detailed factual verification. We therefore, set aside the order of the Ld. CIT(Appeals) on this issue and restore the matter to the file of the Assessing Officer for proper verification as hereinabove directed by us and re-adjudicate the matter in conformity with the principles of natural justice. Thus, grounds No. 5 and 7 raised in appeal by the assessee are allowed for statistical purposes.”
In the light of the above observations, we deem it proper to remand
the issue of addition of Rs.1,45,000/- involving ground Nos.3 and 4 to the
file of AO for his detailed factual verification. The assessee is at liberty to
file evidences, if any, in support of his claim. Thus, ground Nos.3 and 4 are allowed for statistical purposes.
In the result, the appeal of assessee is partly allowed for statistical purposes.
Order pronounced on 8th day of November, 2019.
Sd/- Sd/- (R.S. Syal) (S.S. Viswanethra Ravi) VICE PRESIDENT JUDICIAL MEMBER
पुणे / Pune; �दनांक / Dated : 8th November, 2019 Yamini
आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to :
अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. आयकर आयु�त (अपील) / The CIT(A)-2, Nashik. 3. 4. The Commissioner of Income Tax-2, Nashik. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “ए” ब�च, 5. पुणे / DR, ITAT, “A” Bench, Pune. गाड� फ़ाइल / Guard File. 6. //स�या�पत ��त// True Copy//
आदेशानुसार/ BY ORDER // True Copy // // True Copy // व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune.