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Income Tax Appellate Tribunal, “A”
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the Assessee is directed against the ex-parte order of ld.Commissioner of Income Tax(Appeals)-1, Nashik dated 22.09.2020 under section 144 of the Income-tax Act, 1961 (hereinafter also called as ‘the Act’) for the Assessment Year 2011-12. The Assessee has raised the following grounds of appeal: “1. On the facts and in the circumstances of the case and in law the appeal was heard and decided by Ld. CIT(A) on the basis of written submissions as appellant-assessee could not remain physically present due to suffering from his long and deadly decease. The Ld. CIT(A) was informed about this in his written submissions. The written submissions have not been properly appreciated. The appeal order be set aside to provide one more opportunity to his Advocate for explanation and submissions.
2. On the facts and in the circumstances of the case and in law the assessee is only salaried person and has no other source of income. The A. 0. made addition of Rs. 60,31,960/- under S. 69A of the Act
A.Y. 2011-12 Francis Vamanrao Sansar Vs. ITO (A) without any finding recorded that assessee was maintaining any books of account. S. 69A cannot be invoked for addition if assessee is not maintaining the books of account. The addition made is not sustainable in law. It be quashed.
3. On the facts and in the circumstances of the case and in law the maintenance of books of account is sine-qua-non and a statutory condition precedent for invocation of S. 69A of the Act and in the absence of books of account no addition can be made under S. 69A of the Act. The addition made by A. 0. and confirmed by CIT(A) of Rs. 60,31,940/- is not sustainable in law. It be quashed.
4. On the facts and in the circumstances of the case and in law the bank account maintained in which the deposits are made from time to time cannot be treated as books of account and therefore, the provisions of S. 69A cannot be invoked for addition as 'undisclosed income'. The issue is well settled by various judicial precedents including those of Tribunals, High Courts and also by Supreme Court. The addition made and confirmed by CIT(A) is illegal and without jurisdiction. It be quashed.
5. On the facts and in the circumstances of the case and in law the Ld. CIT(A) passed his appellate order confirming the addition of Rs. 60,31,940/- u/s 69A is inconsistent with the various binding judicial precedents particularly jurisdictional Bombay High Court. The judicial mandate of the Bombay High court has been ignored. The addition in any case is not sustainable. It be quashed.
6. On the facts and in the circumstances of the case and in law and since additions u/ 69A is not sustainable the tax over the same is not imposable. There is no loss of the Government to claim any compensatory interest under S. 234B of the Act. The interest levied u/s 234B be quashed as the said provisions are not applicable to this case. It be deleted.
7. On the facts and in the circumstances of the case and in law the interest u/s 234C is not leviable since there was no tax payable on the returned income. It be deleted.”
Brief facts of the case are that in this case assessment for A.Y. 2011-12 was completed under section 144 of the Act. The Assessing Officer made addition under section 69A of the Act of Rs.55,39,400/- on account of deposits in bank account. The Assessing Officer(AO) also disallowed Rs.1,00,000/- claimed by the A.Y. 2011-12 Francis Vamanrao Sansar Vs. ITO (A)
assessee as deduction. It is a fact that there was no representation during the assessment proceedings by the assessee. Similarly, the ld.CIT(A) upheld the additions as there was no representation by the assessee.
At the outset, the ld.Authorised Representative(ld.AR) for the assessee explained that assessee was severely ill, as a result of that he could not appear before the AO or ld.CIT(A). The ld.AR humbly requested that one more opportunity may be given to the assessee to explain all the facts of the case. The ld.AR humbly submitted that the case may be set-aside either to the AO or ld.CIT(A).
The ld.Departmental Representative(ld.DR) for the Revenue relied on the orders of the lower authorities. However, the ld.DR could not rebut the finding of assessee’s illness which is also mentioned by the ld.CIT(A).
We have heard both the parties, perused the material available on records and have gone through the orders of the Lower Authorities. It is fact that due to illness the assessee could not represent himself properly before the Lower Authorities. Therefore, in the interest of justice, we deem it fit to set-aside the case to the file of the ld.CIT(A) for re-adjudication after giving opportunity of being heard to the assessee. Accordingly, grounds of appeal of the assessee are allowed for statistical purpose.
A.Y. 2011-12 Francis Vamanrao Sansar Vs. ITO (A)
In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open Court on 28th July, 2022.