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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM
ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal filed by the assessee is directed against the order of the ld. CIT(A) dated 13-09-2024, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2015-16 raising therein following grounds of appeal. ‘’1. The ld CIT(A) erred in law as well as on facts of the case treating assessment order passed by AO without considering the return of income filed by the assessee u/s 148 of the Income Tax Act, 1961 as valid.
2. The ld.CIT(A) erred in law as well as on facts of the case by confirming addition of Rs.5,66,000/- by treating the amount deposited by the assessee as unexplained money u/s 69A of the Income Tax Act, 1961 2.1 Apropos grounds of appeal
, it is noticed that the ld . CIT(A) passed an ex- parte order by dismissing the appeal of the assessee. ‘’8.6 In the present case, it is seen that no satisfactory explanation was provided by the assessee during the assessment proceedings as per findings of the AO in the assessment order. Furthermore, it has been held that the additional evidence provided in these present proceedings cannot be considered. Accordingly, the contention of the appellant that the cash deposits are out of salary income and accumulated savings is without any basis. Thus, it can only be held that no evidence has been submitted to prove the genuineness and source of the cash deposits made in the bank account and that the appellant has failed to discharge the burden of proof cast u/s 69A of the Act. Accordingly, the addition is upheld and the Ground of appeal is not allowed.
9. Resultantly, the appeal preferred by the appellant is dismissed. 2.2 During the course of hearing, the ld. AR of the assessee submitted that the ld. CIT(A) has passed an ex-parte order without taking into consideration the facts and circumstances of the case and also did not consider the additional evidence raised by the assessee and thus sustained the addition as made by the AO amounting to Rs. 5,66,010/- u/s 69A of the Act in the hands of the assessee. To this effect, the ld. AR of the asseessee has filed following written submission with the prayer to allow the appeal of the assessee, deleting the addition of Rs.5,66,010/- made by the AO u/s 69A of the Act. ‘’Ground No. 1: The Ld. Commissioner of Income Tax (Appeal) erred in law as well as on facts of the case by treating assessment order passed by Ld. Assessing Officer without considering of return of income filed by the assesse u/s 148 of the Income Tax Act, 1961, as Valid. Detailed Submission: 1. Sir, your kind attention is drawn to the following table: Particulars Date Filing of Original Income Tax Return 19/11/2015 Issuing of Notice u/s 148 of I.T. Act, 1961 24/03/2020 Filing of Income Tax Return u/s 148 20/08/2021 Assessment Order u/s 147 r.w.s 144 r.w.s 144B 14/09/2021 It is very clear from the above table, that the Ld. Assessing Officer has passed Assessment Order after filing of Return of Income u/s 148 by the assessee.
However, Ld. Assessing Officer in his Assessment Order has stated that "Notice u/s 148 of the IT Act issued dtd: 24.03.2020 which has been served on the assessee via mail dtd: 25/03/2020 requesting the assessee to file Return in response to reopening notice within 30 days. But assessee has not filed any return of income in response to 148 Notice" (Refer Point No.2 on Page No. 3 of Assessment Order). Sir, as it is evident from the facts, that the assessee has filed her Income Tax Return in response to Notice u/s 148 of the Income Tax Act, 1961 but the Ld. Assessing Officer has passed Order without considering Return of Income filed u/s 148 of Income Tax Act, 1961. Therefore, the Assessment Order passed by Ld. Assessing Officer is without considering actual facts of the case, hence the Assessment Order in itself is bad in law.
Further, Ld. CIT(Appeal) held that Return of Income filed by the assessee u/s 148, beyond the time limit prescribed via Notice u/s 148 of Income Tax Act, 1961 is liable to be treated as non-est and no cognizance is to be taken of the same by Income Tax Act, 1961. In this regard, the assessee would like to state that there is no specific provision in Income Tax Act, 1961 which says that if the return is not filed within time prescribed under section 148 of the Act, it is a non- est return in law.
In support of the above contention of the assessee, your kind attention is being drawn to the case of M/s Shri Krishna Dutta Academy v/s Income Tax Officer IV(4), Lucknow (ITA Nos.565, 566 and 568/LKW/2011 dt 28/05/2013), where Hon'ble ITAT Lucknow held that "We find that undisputedly the return was not filed by the assessee within the time prescribed under section 148 of the Act. But for that reason, can the return be called to be non-est in law as held by the Assessing Officer? We have also examined the provisions of section 234A of the Act, according to which if the return is filed late, interest can be charged. Therefore, there is no intention of the Legislature to hold the return to be non-est if it is not filed within the period prescribed in the notice issued under section 148 of the Act" Keeping in consideration the above judicial pronouncements and provisions of Income Tax law, it is clear that Ld. CIT(Appeal) has incorrectly treated the Return of Income as non-est. Therefore, you are requested to kindly consider the Return of Income u/s 148 as valid return of income and quash the Assessment Order passed by Ld. Assessing Officer without considering actual facts of the case and consequently delete the demand confirmed by Ld. CIT (Appeal) and provide due relief to the assessee.
However, still your goodself is not agreeable with our views, the assessee would like to submit further.
Ground No. 2: The Ld. Commissioner of Income Tax (Appeal) erred in law as well as on facts of the case by confirming addition of Rs. 5,66,010/-, by treating the amount deposited by the assessee as unexplained money u/s 69A of the Income Tax Act, 1961. Detailed Submission:
1. 1. The Ld. Assessing Officer has mentioned in the Assessment Order that the assessee has deposited cash of Rs.5,66,010/-- in her bank accounts, however the assessee has deposited the amount of Rs. 6,60,510/- in HDFC Bank, Swami Complex, Ajmer (Refer Page No.2 to 5 of Paper Book).
2. The assessee has deposited Rs.6,60,510/- in the Bank a/c out of Salary received in cash and accumulated savings held by the assesse. The date wise Cash Flow for the relevant AY is enclosed (Refer Page No. 6 of Paper Book). which prove sufficient availability of cash with the assessee. Further, Salary Certificate is also enclosed (Refer Page No. 1 of Paper Book). Hence, the source of cash deposits is fully explained however the Ld. Assessing Officer has treated the entire cash deposits as unexplained money u/s 69A of the Income Tax Act, 1961 and has added the same to Total income of the assessee during the relevant A.Y. and Ld. CIT(Appeal) has confirmed the addition made by Ld. Assessing Officer.
3. Further, Ld. CIT(Appeal) has stated that "the appellant has made no application for admission of Additional Evidence, hence evidences submitted by the appellant in these proceedings cannot be considered for adjudication of the appear. In this regard your kind attention is being drawn to the case of Mrs. Nirmala Subramanian v/s CIT (A)-26, Mumbai (ITA No. 3746/Mum/2019 dated 20/09/2022) where Hon'ble
ITAT Mumbal held that "We find that Rule 46A, does not mandate compulsorily by making written application for admission of additional evidence. It is for the learned CIT (A) to record the reason if such additional evidences are admitted. Therefore, according to us, the learned CIT (A) rejected the claim of the assessee on flimsy ground" Sir, as the source of cash deposits is explained beyond doubt, alongwith supporting documentary evidences hence no addition u/s 69A of the Income Tax Act, 1961 can be made and therefore you are requested to kindly delete the addition of Rs. 5,66,010/- made by Ld. Assessing Officer and provide due relief to the assessee.’’ To support his submissions, the ld. AR of the assessee has filed following paper book. S.N. Particulars Page No. Authority before whom the documents were filed AO CIT(A) 1. Salary Certificate 1-1 No Yes 2. Bank Statement 2-5 No Yes 3. Cash Flow Statement 6-6 No Yes 4. Income Tax Return filed u/s 148 7-7 Yes Yes 2.3 On the other hand, the ld. DR supported the orders of the lower authorities. 2.4 We have heard both the parties and perused the materials available on record. Brief facts of the case are that the assessee had filed her return of income for theA.Y. 2015-16 on 19-11-2015 vide acknowledgement ni. 887561220191115 declaring total income of Rs.11,94,940/-. The details of income earned by the assessee during the relevant year are as under:- S.N. Amount 1. Salary (Central Academy 12,10,000 Educational Society) 2. Other Sources (Interest income 1,59,935 Rs.1,09,064/- and Supervision Charges Rs.50,871/- Total 13,69,935 Thereafter notice u/s 148 of the Act was issued on 24-03-2020 but the assessee had not filed any return of income in response to Notice u/s 148 of the Act. It is noted from the submissions of the ld. AR that the assesse had filed the return of income in response to notice u/s 148 of the Act on 20-08-2021 vide acknowledgement no.325660230200821 (PB page 7). It is further noted that the assessee had declared an additional income of Rs.4,219/-(over and above the income declared in the original return of income ) in the return filed by her u/s 148 of the Act and paid the tax on it. Further, the AO had issued an order u/s 147 r.w.s. 144 read with section 144B of the Act on 14-09-2021 without considering the income tax return filed by the assesseeu/s 148 of the Act. In this case, it is noted that the assessee had deposited the amount of Rs.6,60,510/- in the HDFC Bank A/c out of her salary received in cash and past accumulated savings. However, the AO treated the amount of Rs.5,66,010/- deposited by the asseessee in bank account out of her salary received and accmultaed savings as unexplained u/s 69A of the Act and thus made an addition of Rs. 5,66,010/- u/s 69A of the Act in the hands of the assessee which has been confirmed by the ld. CIT(A) as mentioned hereinabove. It is also noteworthy to mention that the AO decided the case ex-parte u/s 147 of the Act as per facts made available before him and it is also noticed that the ld.CIT(A) also passed an ex-parte order by confirming the action of the AO. Hence from the entire, it is noticed that the assessee was ex-parte before the lower authorities. It is an admitted fact that the assessee is ex-parte before the AO and also before the ld. CIT(A). Therefore, she could not put forth her defence. It was the bounded duty of the assessee to appear before the statutory authorities as and when called for. However, we are of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. The assessee is also directed to submit any evidence or documents before the AO to support her case. Thus the appeal of the assessee is allowed for statistical purposes.
2.5 Before parting, we may make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law. 3.0 In the result, the appeal of the assesee is allowed for statistical purposes