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Facts
The assessee's appeal was filed against an ex-parte assessment order passed under section 144 of the Income Tax Act, 1961, after the assessee failed to respond to a notice under section 142(1). The cash deposited during the demonetization period was disallowed. The CIT(A) dismissed the appeal, holding that the assessee had not provided documentary evidence.
Held
The Tribunal allowed the assessee's application for admission of additional evidence, considering it crucial for adjudicating the controversy. The matter was restored to the Assessing Officer for fresh adjudication after verifying the additional evidence and providing an opportunity of hearing.
Key Issues
Whether the CIT(A) erred in dismissing the appeal without appreciating the facts and submissions, and whether additional evidence should be admitted and the matter remanded for fresh adjudication.
Sections Cited
142(1), 144, 250, 69A
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Income Tax Appellate Tribunal, “F” BENCH MUMBAI
Before: HON’BLE SHRI SANDEEP GOSAIN & SHRI PRABHASH SHANKARShri Vivek Ramchandra
Assessee by Shri M. Subramniam Revenue by Shri Ms. Nidhi Agarwal, Sr. DR Date of Hearing 07.01.2025 Date of Pronouncement 28.01.2025 आदेश / ORDER
PER SANDEEP GOSAIN, JM:
The present appeal has been filed by the assessee challenging the impugned order 27.12.2023, passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre, Delhi (‘Ld. CIT(A)’) for the assessment year 2017-18.
As per the facts of the present case, cash was deposited by the assessee during demonetization period in his bank accounts, and consequently notice under section 142(1) of 2 Shri Vivek Ramchandra Kawade, Mumbai the act was served upon the assessee which was not replied. Therefore, ex-party order of assessment under section 144 of the act was passed and the entire credit in the bank statement including cash deposited during demonetization period was disallowed and taxed accordingly .
Against the order of assessment, assessee preferred appeal but the same was rejected/dismissed by Ld. CIT(A) by holding that assessee had not furnished any documentary evidences to substantiate his grounds of appeal.
4. Now the assessee has filed the present appeal before us on the grounds mentioned herein above.
1. On the facts and in the circumstances of the case and in law, learned CIT(A) erred in passing an order u/s.250 of the I.T. Act, 1961 dated 27.12.2023 and that too without appreciating fully & properly the facts of the case and the submissions by the assessee.
2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in upholding the assessment order dated 30.09.2019 passed u/s 144 of the act by the A.O.
3. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in upholding the addition of Rs.20,55,000/- made under section 69A in the assessment order dated 30.09.2019 passed u/s 144 of the Act by the A.O.
4. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in upholding the of Rs.2,35,96,963/- made as Income from Busincess/Profession in the assessment order dated 30.09.2019 passed u/s 144 of the AC by the A.Ο 3 Shri Vivek Ramchandra Kawade, Mumbai
The appellant craves leave to add, alter, amend or delete all or any of the grounds of appeal at any time.
5. At the very outset, Ld. AR submitted that although part of the replies/documents/explanations were furnished before Ld. CIT(A), but the same were not appreciated in the right perspective .
6. Apart from above Ld. AR also drawn our attention to the application filed by the assessee under Rule 29 of the ITAT Rules, 1963. It was submitted that documents at paper book page number 62 to 122 are new evidences which could not be produced before the revenue authorities by the assessee for want of proper opportunities. It was also submitted that these evidences goes to the roots of the case and are relevant to decide the controversy in question. Further, Ld. AR also relied upon the decision of the Coordinate Bench of ITAT in the case of Mascon Global Ltd Vs ACIT (2010) 37 SOT 202 and the decision of Hon’ble Supreme Court in the case of Tek Ram Vs CIT, (2014) 44 taxman.com, 367 (SC) and pleaded for admission of additional evidence.
7. On the other hand, Ld. DR contested the application filed by the assessee for leading additional evidence and submitted that proper and due opportunities were granted to the assessee but the assessee had failed to avail the same 4 Shri Vivek Ramchandra Kawade, Mumbai and therefore cannot be permitted at this stage to file any new document.
We have heard the counsel for both the parties and perused the material placed on record, judgements cited before us and the orders passed by the revenue authorities. From the records we noticed that it is an undisputed fact that notice under section 142(1) of the Act was issued, but assessee failed to respond the notices and ultimately ex- party order of assessment under section 144 of the Act was passed. Thereafter even during the appellate proceedings assessee could not furnish entire documentary evidences to substantiate his cause, whereas DR vehemently argued that proper and sufficient opportunities were granted to the assessee.
Be that as it may, after having perused the documents, placed on record by the assessee by way of additional evidence. We are of the view that these documents are necessary to adjudicate the controversy between the parties and thus goes to the roots of the case. We are further of the view that no prejudice shall be caused to the department, in case the application for leading additional evidence filed by the assessee is allowed whereas on the contrary, in case the application for leading additional evidence is not allowed, then in that eventuality the rights of the assessee shall suffer 5 Shri Vivek Ramchandra Kawade, Mumbai prejudice. Therefore, considering the totality of the facts and circumstances as discussed by us above, we allow the application filed by the assessee under rule 29 of ITAT Rules, 1963 and admit the documents from page number 62 to122 as additional evidence.
Since we have allowed the application for leading additional evidence by taking on record the documents placed at paper book page number 62 to 122, which are in the nature of copy of chart showing source of cash deposits, date wise details of bank transactions, bank statements, bank book, etc. In our view, all these documents needs factual verification, therefore, Bench feels that the ends of justice would be met only if the matter is restored back to the file of AO, with the direction to verify and evaluate the documents admitted as additional evidence and to decide the issue afresh on merits by providing opportunity of hearing to the parties. The assessee shall not seek any adjournment on frivolous grounds and remain cooperative during the course of proceedings
Before parting, we may make it clear that our decision to restore the matter back to the file of AO shall in no way, be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated independently by the AO in accordance with law.
6 Shri Vivek Ramchandra Kawade, Mumbai
In the result the appeal filed by the asessee stands allowed for statistical purposes.