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Income Tax Appellate Tribunal, AHMEDABAD “C” BENCH
Before: Shri Waseem Ahmed & Shri T.R. Senthil Kumar
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH Before: Shri Waseem Ahmed, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member
ITA No. 924/Ahd/2016 & ITA No. 2878/Ahd/2017 Assessment Year 2010-11
Shashank Shekhar The Deputy Singh, Commissioner of B-6-62, Sector-4 Vs Income Tax, Circle-7, Rohinih Delhi, Baroda New Delhi-110085 (Respondent) PAN: ANHPS6886Q (Appellant)
Appellant by : Shri Manish J.Shah, A.R., & Shri Jimi Patel and Rushin Patel Respondent by: Shri V.K. Singh, Sr.D.R. Date of hearing : 21-07-2022 Date of pronouncement : 09-09-2022 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-
ITA No. 924/Ahd/2016 is filed by the Assessee against the order dated 09.12.2015 passed by the Commissioner of Income Tax (Appeals)-4, Vadodara, as against the Assessment order passed under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Year (A.Y) 2010-11 and ITA No. 2878/Ahd/2017 is filed by the Assessee against the order dated 09.12.2015 passed by the Commissioner of
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Income Tax (Appeals)-4, Vadodara confirming the levy of penalty u/s. 271(1)(c) of the Act relating to the same Assessment Year 2010-11.
The brief facts of the case is that the assessee is an individual, Senior Citizen and retired employee from ONGC Ltd. on 31.03.2009, deriving income from Salary, House Property and other Sources. The assessee has not filed the Return of Income under 139(1) of the Act. Therefore a notice u/s. 148 was issued on 07.12.2012 and in response thereto the assessee filed its Return of Income declaring total income of Rs. 17,26,770/- and paid taxes of Rs. 4,66,323/- and claiming a refund of Rs. 6,389/-.
2.1. The assessee was called upon to explain the investment of Rs. 3,45,00,000/- and Rs. 24,23,192/- in various mutual funds of Sundaram BNP Paribas Mutual Funds, Birla Sunlife Mutual Funds, etc. The Assessing officer had provided six opportunities to the assesse to explain the investments made in the Mutual Funds and also the CPB Interest of Rs. 24,872/- received by the assessee. As there was no response to the notices, the Assessing Officer made the addition of Rs. 58,73,192/- on account of unexplained investments in Mutual Funds and Rs. 40,18,534/- as unexplained money deposited in Axis Bank, HDFC Bank and State Bank of India and also added the CPB interest of Rs. 24,872/-. Thus the assessing officer determined the total income as Rs. 1,16,43,370/- and demanded a tax of Rs. 45,28,230/-.
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Aggrieved against the same, the assessee filed an appeal before the ld.CIT(A)-4, Vadodara. During the course of appellate proceedings, the assessee filed additional evidences on 26.05.2015 along with the written submission. The ld. CIT(A) called for a Remand Report from the Assessing Officer on the above. The Assessing Officer vide his Remand Report dated 16.06.2015 partially accepted the submissions of the assessee, however the A.O. stated the source of investment shown by the assessee is Rs. 72,07,212/- as against total addition made by the A.O. of Rs. 99,16,600/- still there is a difference of Rs. 26,89,388/- remains unexplained. Though the assessee was in possession of the evidences and documents during the course of assessment proceedings, but the same was not produced before the A.O. for the reason best known to the assessee namely assessee’s ill-health and shifted to New Delhi, therefore could not produce the details to the A.O. which is not acceptable and convincing. Since seven opportunities were given by the Assessing Officer to the assessee, therefore the A.O. pleaded that the additional evidences should not be admitted.
3.1. The assessee filed its rejoinder to the remand report vide letter dated 06.08.2015 explaining that the source of investments are based on the post retirement funds and redemption of various mutual funds. There would always exist the amount of difference on account of cascading, effect of the income received and further reinvested both being added on various occasions. Therefore the assessee requested to reconcile with the bank statements explaining every entry of the bank and the capital loss working
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which is already submitted in the reply dated 26.05.2015. The assessee also made further rejoinder vide letter dated 24.08.2015 and requested to adjudicate the additional evidences which could not be produced before the Assessing Officer because of his ill health and shifting to New Delhi. The Ld. CIT(A) after considering the above submissions dismissed the appeal of the assessee on the ground that inspite of ample opportunities given to the assessee in a duration of six months and the conduct of the assessee is contrary to his investment pattern in various Mutual Funds but non-cooperation with the Department and relying upon the Allahabad High Court judgment in the case of Ram Prasad Sharma vs. CIT [1979] 119 ITR 867 and other judgment dismissed the appeal of the assessee, observing that there is no violation of Rule 46A.
Aggrieved against the same, the assessee is in appeal before us raising the following Grounds of Appeal: 1. The Learned Commissioner of Income Tax (Appeals) erred in law as well as on facts while confirming the following additions. Sr. No. Nature of Additions Amount Rs. 1 Unexplained Investments in Mutual Funds 58,73,192.00 2 Credit Entries in Bank accounts as Unexplained Money 40,18,534.00 3 Unexplained Interest 24,872.00
The Learned Commissioner of Income Tax (Appeals) has erred in overlooking and summarily rejecting additional evidences submitted by the appellant. 3. The Lower Authorities erred while submitting remand report treating Investments in various mutual funds as unexplained investments inspite of all evidences were produced before first appellate authority.
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The Lower Authorities erred while submitting remand report treating all credit entries in bank accounts as unexplained money inspite of all entries have been explained with supporting evidences produced before first appellate authority. 5. The Ld. Commissioner of Income Tax (Appeals) failed to accept the fresh evidences produced & failed to considering right of natural justice.
4.1. Ld. Counsel Mr. Manish J. Shah appearing for the assessee filed a Paper Book containing of application of additional evidence submitted before the Ld. CIT(A)., Copy of bank statement submitted before the A.O., Remand report of the A.O., Rejoinder to the remand report by the assesse and Miscellaneous details available on record during assessment and appellate proceedings. The Ld. Counsel taken us to page no. 87 of the Paper Book namely rejoinder filed by the assessee to the remand report more particularly, para 8 and 9 which is reproduced hereunder: 8. You honour as far the contention of learned A.O that appellant was already in possession of the said documents is not valid as we did not get proper time to furnish the same for example we would like to draw attention to evidence no.20 being mutual fund statement as issued on 01/04/2014 whereas order in appeal was passed on 26/03/2014 another example is the FDR receipts it is a common practice that original receipt is retained by bank on maturity, your honour bank had bluntly refused to furnish the copy for the same appellant had to beg for the same to get it, my lordship appellant would never be interested in non-furnishing the same and the evidences have been received after passing of the assessment order and sufficient time for not given to collect and submit the same. We had already requested that due to poor health it was not possible to collect the documents and submit before your honour. We would like to beg that all the evidences that are been collected required presence of the assesse himself ill and senior citizen himself then it was not possible by him through messenger. We would still like to maintain the reasons as mentioned in earlier request dated 26/05/2015 that we were prevented by sufficient cause and insufficient opportunity for furnishing the same. 9. Your honour we would again like to plead that my lordship to allow the evidences and explanations as every point of the assessment order is validly explained by us and all the related evidences have been furnished by us and being genuine case as statements are of mutual funds and other evidences being of ONGC(PSU) being genuine and clear. We hereby beg before you for justice as the appellant is a senior citizen aged 67 having poor health condition on humanitarian grounds.
4.2. Ld. Counsel thus pleaded there were sufficient cause of medical illness and his transfer to New Delhi and therefore
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requested that one more opportunity be given to the assessee to explain its cases with proper evidences.
Ld. Sr. D.R. Mr. V.K. Singh appearing for the Revenue strongly objected to the above claim and submitted that more than six opportunities given by the Assessing Officer before completion of assessment. However the assessee has not produced the details, therefore invocation of Rule 46A does not arise in this case and requested to confirm the order passed by the Ld. CIT(A) thereby dismiss the assessee’s appeal.
We have given our thoughtful consideration and perused the materials available on record including the paper book filed by the assessee wherein the additional evidences produced by the assessee before the Ld. CIT(A) namely the Mutual Funds statement was issued on 01.04.2014 whereas the reassessment was passed on 26.03.2014 and another reason that matured FDR receipt could not be obtained by the assessee from its bankers, before passing of the assessment order by the Assessing Officer. Further considering the ill health of the assessee and transfer of his residence to New Delhi. We find that the assessee is sufficiently prevented from above reasons for not furnishing the above documents to the Assessing Officer. Therefore to meet the ends of justice, we deem fit it to set aside the case to the file of the Assessing Officer and give one more opportunity to the assessee to explain its case with these additional evidences as last opportunity by imposing a cost of Rs. 10,000/- as the assessee has not cooperated with the Assessing Officer. This cost of Rs. 10,000/- is payable to Prime Ministers
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Relief Fund within a period of four weeks on receipt of this order copy. Needless to say, the assessee should make use of this opportunity and furnish all the required documents, evidences and should cooperate with the Assessing Officer for passing the reassessment order. For the reason stated above, the appeal filed by the Assessee is allowed for statistical purposes.
ITA No. 2878/Ahd/2017 is a penalty of Rs. 30,64,230/- levied u/s. 271(1)(c) of the Act for concealment of income. As we have set aside the reassessment order in ITA No. 924/Ahd/2016. The Penalty order become infructuous.
In the result, ITA No. 924/Ahd/2016 appeal filed by the Assessee is allowed for statistical purposes and ITA No. 2878/Ahd/2017 is dismissed as infructuous. Order pronounced in the open court on 09-09-2022 Sd/- Sd/- (WASEEM AHMED) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 09/09/2022 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद