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Income Tax Appellate Tribunal, DELHI BENCH ‘E’ : NEW DELHI
Before: SHRI KULDIP SINGH & SHRI PRASHANT MAHARISHI
PER KULDIP SINGH, JUDICIAL MEMBER :
Appellant, Mohd. Ismile (hereinafter referred to as the ‘assessee’) by filing the present appeal sought to set aside the impugned order dated 30.04.2019 passed by the Commissioner of Income - tax (Appeals), Ghaziabad qua the assessment year 2010-11 on the grounds inter alia that :-
“1. That the C.I.T.(Appeal) have not placed any nexus in determining the facts which are given according to the law hence the order is not maintainable.
That the order passed by the CIT (Appeal) is bad in law & passed without considering all the facts & the request of the appellant hence against the principle of natural justice.
3. That the appellant is a poor man & sell raw fishes in Ghaziabad and no any other business or source of income. The appellant is the permanent resident of a backward colony "Sanjay Colony, Arthala", Ghaziabad and not aware of Income Tax & other allied laws.
4. That the appellant was unable to appear on the last date of hearing as he was sick and on bed rest as per the advice of the doctor hence opportunity of being heard must be given to the appellant in the interest of justice.(Medical Certificate attached) 5. That the authorities below have erred as well as on facts by not considering the complete submission & facts hence the order is liable to be quashed. 6. That the appellant wants to inform the court that during the year a horrible & tragic incident occur in the life of the appellant. The appellant's son Javed (aged 3 year) was kidnapped on 23/11/2009. 7. That CIT (appeal) intentionally not considered all the evidences of kidnapping ie - News- paper cutting, FIR copy & affidavit filed by appellant as an evidences / as proof of the kidnapping of his 3 years old son Javed. 8. That as the appellant belongs to a lower middle class family and have no money to give the kidnappers so appellant requested and appeal in general public to help & gave money to recover his son as he has no money with him. After seeing the condition of the appellant the people of the surrounding & nearby area apart from any cast & religion on humanity grounds helped the appellant by giving cash money to recover his son from kidnappers. 9. That the CIT (appeal) intentionally not considered the affidavit given by the people who finically helped the appellant to recover his kidnapped child from the kidnappers .The identity of few people who signed the affidavit are attached here with .The affidavit given by the people must be accepted in the interest of principle of natural justice. 10. That the amount received from the people to rescue his son from kidnapper & amount recovered by police from kidnappers not to be added in the income of the appellant as its not the income of the appellant. The order must be amended on that ground.
That the appellant filed his Income tax return by calculating his income @ 8% u/s-44AD of IT act the gross business income of the appellant is and this facts also declared before A.O. in writing.(copy of reply filed before A.O. attached) 12. That That during the year the appellant admitted total gross business income receipt of Rs.2109780/- and filed his income tax return vide departmental receipt no. - 0100043223 dt. 02/11/2010 and filed income tax on presumptive basis and calculated his income @ 8% on Rs.2109780/- and admitted total income Rs. 169440/- which clearly shows the intention & respect towards the law & the working of the appellant. 13. The A.O. passed an ex-party order and addition of Rs.4865000/- is made on the basis of total bank deposits. The A.O. intentionally not give the benefit of bank deposit of Rs. 2109780/- which is already declared by the appellant in his income tax return and declare his gross in receipt of Rs.2109780/- and calculated profit @8% and admit Rs.169440/- as income and filed his return u/s-44AD of income tax act. The order must be modified on this ground. 14. That if there is any further clarification/ explanation/ documents required kindly offer the opportunity to the appellant in the interest of principal of natural justice. 15. That there is a delay in filing the appeal your honor is requested to please condone the delay in the interest of principle of natural justice.”
2. Briefly stated the facts necessary for adjudication of the issue at hand are : Assessing Officer (AO) noticed that an amount of Rs.48,65,000/- has been deposited in cash in different saving bank accounts of the assessee. On failure of the assessee to put in appearance and furnishing any explanation despite issuance of the notice, AO proceeded to make addition of Rs.48,65,000/-.
Assessee carried the matter by way of an appeal before the ld. CIT (A) who has confirmed the addition by dismissing the appeal. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
Bare perusal of the impugned order passed by the ld. CIT (A) apparently goes to prove that veracity of the affidavit filed by the assessee from various persons who alleged to have given cash amount to the assessee on humanity ground to get assessee’s son released from the clutches of kidnappers has never been investigated. Ld. CIT (A) has not preferred to call the remand report from the AO who has otherwise framed the assessment 147/144 of the Income-tax Act, 1961 (for short ‘the Act’).
In these circumstances, we are of the considered view that to meet with the ends of justice, fair and reasonable opportunity is required to be given to the assessee who has undertaken to prove the identity of the small creditors who have allegedly lent him an amount ranging from Rs.500/- to Rs.25,000/- so as to get his son released from the clutches of kidnappers. Assessee also argued that kidnappers of his son in the criminal case have been convicted by the trial court. In the given circumstances, impugned order passed by the ld. CIT (A) confirming the assessment order is hereby set aside and file is remanded back to the AO to decide afresh after providing adequate opportunity of being heard to the assessee in order to establish the identity and creditworthiness of the lenders so as to decide the genuineness of transaction. Consequently, appeal filed by the assessee is hereby allowed for statistical purposes. Order pronounced in open court on this 3rd day of September, 2019. Sd/- sd/- (PRASHANT MAHARISHI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated the 3rd day of September, 2019 TS