SIDDHARTH SURYAKANT DESHMUKH,MUMBAI vs. INCOME TAX OFFICER 4(2)(1), MUMBAI
Income Tax Appellate Tribunal, “K (SMC
[
Per Rahul Chaudhary, Judicial Member:
The present appeal preferred by the Assessee is directed against the order, dated 18/01/2024, passed by the National Faceless Appeal Centre (NFAC), New Delhi [hereinafter referred to as ‘the CIT(A)’] under Section 250 of the Income Tax Act, 1961 [hereinafter referred to as ‘ the Act’] whereby the Ld. CIT(A) had partly allowed the appeal against the Assessment Order, dated 21/12/2018, passed under Section 144 read with Section 147 of the Act for the Assessment Year 2011-2012. 2. The Assessee has raised following grounds of appeal :
“1. The learned CIT(A) has erred in law and on facts in upholding the order passed by the Assessing Officer u/s.144 of the Income-tax Act, 1961, which is illegal and bad in law and in Assessment Year 2011-2012
violation of the principles of natural justice.
The learned CIT(A) has erred in law and on facts in passing the appellate order against the principles of natural justice.
The learned CIT(A) has erred in law and on the facts in upholding the addition of Rs.13,35,534/- u/s.69 of the Act on the ground that the source of purchase and sale transaction of shares remains unexplained.
The learned CIT(A) has erred in law and on facts in upholding the addition of Rs.16,35,000/- u/s.69 of the Act on the ground of unexplained fixed deposits.
The learned CIT(A) has erred in law and on facts in upholding the addition of Rs.4,07,242/- on account of unexplained fixed deposits and interest on fixed deposits.
The learned CIT(A) has erred in law and on facts in upholding the addition of Rs.4,31,807/- being credit entries appearing in bank account with Corporation Bank.
The learned CIT(A) has erred in law and on facts in upholding the addition of Rs.1,20,585/- being credit entries appearing in bank account with Kotak Bank.
The learned CIT(A) has erred in law and on facts in upholding the action of the Assessing Officer in invoking the provisions of S.115BBE of the Act.
The learned CIT(A) has erred in law and on facts in sustaining the levy of interest u/s.234A, 234B and 234C of the Act.”
The relevant facts in brief are that the Assessee, an resident individual, did not file return of income for the Assessment Year 2011-12.Since the Assessee had made deposits exceeding INR.2,00,000/- with the banking company and had entered into transactions at commodity exchange, reassessment proceedings were initiated against the Assessee under Section 147 of the Act by issuance of Notice Under Section 148 of the Act on 15/03/2018. Since the Assessee did not participate in the assessment proceedings, the Assessing Officer completed the assessment under Section 144 read with Section 147 of the Act vide Assessment Order, dated 21/12/2018, assessing the total income of the Assessee at INR.39,30,170/-. Assessment Year 2011-2012
Being aggrieved, the Assessee preferred appeal before the CIT(A) against the Assessment Order, dated 21/12/2018, and made the following submissions which have been reproduced by the CIT(A) in paragraph 6 of the order impugned:
“6. Notices U/s 250 of the Income Tax Act, 1961 were issued to the appellant on 19- 01-2021, 10-12-2021, 24-03-2022, 03-05-
2022 and 10-01-2024 to file the submission. The appellant's submission is reproduced as under :-
“General Facts:
i.
Your appellant is an individual, engaged in rendering professional consultancy to students appearing for NCFM exam conducted by SEBI/Stock Exchange. I also give consultancy for Investment in shares. My father and mother both are senior citizens and suffering from various deceases connected with heart, diabetes, BP and Cancer and hence I was under mental tension and was staying with joint family till March 2018 and hence I could not concentrate in filing my Return of Income.
ii.
I had entrusted my professional work for filing and attending the Income
Tax proceedings to Mr.
Dharne
Chartered
Accountant. However He has not attended scrutiny assessment nor file Return of Income for AY 2011-12 in which the Income
Tax Officer made huge additions for nonsubmission of return of income and non-furnishing of details. The additions are made on the basis of AIR and other information called directly from the banks wherein I was having FDRs as well as Saving Accounts. I was under genuine belief that Mr. Dharne being qualified professional will take care and attend my Income Tax matters.
iii.
Subsequently Mr.Dharne collected Ex-parte orders and filed appeal before your good self on 01/05/2019 with request to condone the delay in fling appeal.
Your appellant submits the following facts.
Your appellant is an individual and was under impression that my income is below taxable limit and hence not file return of income. As I was not able to compute Short Term, Long Term Capital Gain on Equity Shares. Assessment Year 2011-2012
The Ld. AO passed order u/s 144 and made addition as stated below: a. Investment in shares
Rs. 13,35,534
b.
FDR with Bank
Rs. 16,35,000
c.
Interest & Principal amount of FDR
Principal Rs.3,80,600
Interest Rs.26,642 Rs.4,07,242
d.
Credit entries in Corporation Bank Rs.4,31,807
e.
Credit & Interest on TD in Kotak Bank Rs. 1,20,585
We are enclosing herewith a summary of all the bank accounts as prepared from the various Pass-books / Bank Statements. We are also enclosing herewith the respective Bank Statements along with the said summary as per Annexure A.”
Thus, the Assessee provided explanation for deposits made in the bank account and supported the same with bank statement and summary of transactions.
The CIT(A) disposed off the appeal as partly allowed, vide order dated 18/01/2024, by granting relief only to the extent of INR.2,39,000/- and confirming the balance addition made by the Assessing Officer.
Being aggrieved by the above order passed by the CIT(A), the Assessee has preferred the present appeal before the Tribunal on the grounds reproduced at paragraph 2 above.
We have considered the rival submission and perused the material on record.
On perusal of order impugned, we observe that after reproducing the submissions of the Assessee and the Assessment Order in Paragraph 6 and 7, respectively, of the order impugned, the CIT(A) has given his decision in paragraph 8 of the order impugned. We find that while Assessment Year 2011-2012
deciding the appeal the CIT(A) has neither dealt with the submissions made by the Assessee nor given any finding on the supporting documents furnished by the Assessee. Therefore, in our view the order, dated 18/01/2024, passed by the CIT(A) cannot be sustained.
Our decision draws strength from the decision of the Tribunal in the case of the Assessee for the Assessment Year 2012-13 [ITA
No.1129/Mum/2024, dated 12/08/2024] on which reliance was placed on behalf of the Assessee. We note that for the Assessment
Year 2012-13, in identical facts and circumstances the Tribunal had set aside the order passed by the CIT(A). The relevant extract of the decision of the Tribunal or the Assessment Year 2012-2013 (ITA
No.1129/Mum/2024, 12/08/2024) reads as under:
“10. We have carefully considered the rival contention and perused the orders of the learned lower authorities. Undoubtedly the assessee is not filing his return of income and information was received from AIR about the investment, trading transactions and bank accounts of the assessee. During the course of assessment proceedings assessee did not reply to notice under section 148 of the act as well as several other notices issued and show cause notice issued. Therefore, the learned assessing officer passed an order under section 144 of the act determining total income of the assessee at Rs. 4,709,240. Before the learned CIT - A the details of his professional fees, summary of his bank account, the sources of the fund and also explained the nature of his professional activities. It was submitted that assessee is an individual engaged in rendering professional consultancy students appearing for NCFM exam conducted by stock exchanges. He also provides consultancy services for investment in shares. He has also provided the details of his investment in fixed deposit receipts and claimed that most of the receipts are invested prior to 31st of March
2008. He has also provided the details of gross interest received from seven different banks. Assessee has also submitted his statement from money Bee securities for share trading. These details have been admitted by the learned CITA by reproducing the submission at page number 4 to 10 of the appellate order but did not consider them while deciding the appeal on the merit. He brushed aside the explanation of the assessee stating that assessee could not clearly explained with Assessment Year 2011-2012
supporting evidence and explanations are purely afterthought.
The learned CITA is duty-bound if he admits those evidence to consider them on merit. As the evidence and not been considered by the learned CIT A on merit, no evidence was furnished before the assessing officer, we do not find any reason to set aside back to the file of the learned CITA.
Therefore, in the interest of justice, we restore the issue back to the file of the learned assessing officer with a direction to the assessee to furnish all the information in support of his income as well as the finding of the learned AO within 90 days from the date of this order. The learned that AO may consider the explanation furnished by the assessee and decide the issue afresh in accordance with the law.
In the result appeal filed by the assessee is allowed for statistical purposes.” (Emphasis Supplied)
On perusal of above, it can be seen that the Tribunal had set aside the order passed by CIT(A) for the Assessment Year 2012-13 and had remitted the issues raised back to the file of Assessing Officer for denovo adjudication. The Assessee was directed to file all information in support of his income before the Assessing Officer within 90 days from the date of this order with direction to the Assessing Officer to consider the same while deciding the issue a fresh. We find no reason to take a different view of the matter than what was taken by the Tribunal in the aforesaid appeal for the Assessment year 2012-2013 as there is no change in the facts and circumstances of the case. As was the case for Assessment Year 2012-13, the Assessee had failed to file return of income and participate in the reassessment proceedings for the Assessment Year 2011-2012. We note that notice under Section 148 of the Act was issued on 15/03/2018 and the assessment was framed on the Assessee on 21/12/2018. Notices were issued by the Assessing Officer between 01/08/2018 and 06/12/2018. While condoning delay in filing appeal, the CIT(A) had recorded the reasons given by the Assessee for seeking condonation of delay in paragraph 1 of the order impugned wherein it was stated that the mother of the Assessee had passed away in August, 2018 Assessment Year 2011-2012
and the Assessee had temporarily shifted to Pune. During the appellate proceedings before the Tribunal, the Assessee had sought an opportunity to make out his case before assessing officer. Given the facts and circumstances of the present case noted hereinabove, we inclined to accept the aforesaid submission of the Assessee.
In view of the above, the order dated 18/01/2024 passed by the CIT(A) is set aside with the direction to the Assessee to furnish all documents/details before the Assessing Officer within a period of 90 days from the date of the present order. The Ld. Assessing Officer is directed to consider the submissions/explanations furnished by the Assessee and to decide the issue raised in the present appeal afresh in accordance with law after granting a reasonable opportunity of being heard to the Assessee.
In terms of paragraph 10 above, Ground No.1 raised by the Assessee are treated as allowed while Ground No.2 to 9 raised by the Assessee dismissed as having been rendered infructuous.
In result, the appeal preferred by the Assessee is treated as allowed for statistical purposes.
Order pronounced on 13.01.2025. (Om Prakash Kant)
Accountant Member
मुंबई Mumbai; िदनांक Dated :13.01.2025
Milan,LDC
Assessment Year 2011-2012
आदेश की Ůितिलिप अŤेिषत/Copy of the Order forwarded to :
1. अपीलाथŎ / The Appellant
2. ŮȑथŎ / The Respondent.
3. आयकर आयुƅ/ The CIT
4. Ůधान आयकर आयुƅ / Pr.CIT
5. िवभागीय Ůितिनिध ,आयकर अपीलीय अिधकरण ,मुंबई / DR,
ITAT, Mumbai
6. गाडŊ फाईल
/ Guard file.
आदेशानुसार/ BY ORDER,
सȑािपत Ůित ////
उप/सहायक पंजीकार /(Dy./Asstt.