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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-28, Mumbai [in short CIT(A)], in appeal No. CIT(A)-28/ITO-26(2)(4)/239/13-14, dated 28.08.2014. The Assessment was framed by the Income Tax Officer, Ward-26(2)-4, in short ‘ITO’/ AO) for the A.Y. 2010-11 vide order dated 25.03.2013 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
2. At the outset, it is noticed that the assessee has raised the following five grounds: - “1. The Hon’ble CIT (A) has erred in law and facts being not adjudicating the claim of relief against addition of Income of Rs. 58,86,000/-.
2. The Hon’ble CIT (A) has erred in law and facts in dismissing the appeal and not considering the legal aspect of S 69 of the I.T. Act.
3. The Hon’ble CIT (A) has erred in law and facts and not entertaining all fresh evidence which the appellant has submitted on demand of the Hon’ble CIT (A) under Rule 46 A of the IT Rules 1962.
4. The Hon’ble CIT (A) has erred in law and facts in not considering the Judictional Hon’ble Bombay Nigh Court decision in case Prabhavati- 231 ITR.
5. The Hon’ble CIT (A) has erred in law and facts in not considering the Hon’ble S.C decision in case of CIT vs. Kanpur Coal Syndicate 53 ITR 225 (SC).”
Briefly stated facts are that the AO noticed during the assessment proceedings that there are total bank deposits in the assessee’s bank accounts i.e. maintained with Bank of Baroda Vide A/c No. 04190100009125 amounting to ₹ 41,50,000/-, Union Bank of India vide A/c No. 319702010740880 amounting to ₹ 5,00,000, Syndicate Bank vide A/c No. 502320150268 amounting to ₹1 2,36,000/- and cash deposit of ₹ 2,66,000/-. According to AO aggregate deposits of ₹ 58.86 lakhs were unexplained. The AO added this amount of ₹ 58.86 lakhs as unexplained under section 69 of the Act. Aggrieved, assessee preferred the appeal before CIT(A).
4. Before CIT(A), the assessee filed additional evidences and submissions which reads as under: - “2. Para No. 9 of the construed assessment order dates the deposits in the details date wise into Bank of Baroda, Union Bank and Syndicate Bank respectively.
3. We herewith submits the financial statements for the preceding year i.e. March ending 2009 and corresponding to it, & tailed summarized copies of bank accounts; cash accounts; capital accounts and balance sheet for the financial year ending March 2010.
4 Your honor, we would like to state that, if your honor go through submitted cash accounts, it will clearly state that how cash deposits are transacted. Further we would like to state that Ps. 1,82,000/- deposited in Syndicate Bank are receipt of Tuition fees of Rs. 1,93,834/- and remaining cash of Rs. 11,834/- credited into cash account.
In other worth, the tuition fees of Rs. 1,93,834/- declared as an income in ITR. of 2010-11 is again to the extent of Rs. 1,82,000/- added by the learned ITO as cash credits in bank account and brought to income u/s 69 of the I. T Act
We herewith request your honor to delete the addition of Rs. 1,82,000/-.
We have submitted the financial accounts for March ending 2009 for the purpose of records as stated in Para No. 3 of this letter. Along with it summarized cash accounts for financial year ending March, 2014 is also enclosed The enclosed summarized cash accounts reveals she deposit of Ps. 94,000/- into Syndicate Bank account.
Your honour it concluded that money deposited in the bank is transferred from cash account. The learned officer has considered as an income being unexplained cash credit and added to income u/s 69 of the I. T Act.
We request your honor to delete the transfer of Rs. 94,000/- from cash account to bank account as it is not an unexplained cash credits.
Your honor as per para No.9 of the construed assessment, the learned officer has stated/ shown the deposit for S.1,00,000/- vide ch. No. 593003 dated 12th May 2009. We would like to bring to your honor’s notice that above noted cheque was dishonored and bounced back. The syndicate Bank had debited the same amount.
Your honor, we would request you to delete the addition of ₹ 1,00,000/- (i.e. from addition of deposit of ₹ 12,36,000/- into syndicate bank.)
7. Your honor, please find herewith the effect of stated notes/ matter of points in the para No.4 to para No. 6 (both inclusive).
Total deposit into Syndicate Bank 12,36,000/- Subtract i) Deletion of ₹ 1,82,000/
(being deposit of tuition fees) ii) Transfer of cash from cash
Pocket to bank pocket 94,000/- iii) Dishonored ch. Being Deposited on 12,05.2009 1,00,000/- 3,76,000 Cheque deposited in Syndicate Bank 8,60,000 Your honor ₹ 8,60,000/- is an unsecured interest free loan the fellow who also resides in my flat.
Your honor, we would like to state the amount deposited into Bank of Baroda and into Union Bank respectively ₹ 41,50,000/- and ₹ 5,00,000/- are the loan amount taken from Amal Raha whose confirmation letter has been submitted to the learned ITO at the time of processing of the assessment.
The assessee has requested the loanee to send her Xerox copies of filed ITR.
Further explanation was submitted vide letter dated 14.07.2014, as under:-
“During the previous meeting of our Jigna Shah with your honour, your honour have instructed to submit the following paper. i) Xerox copy of filed ITR for AY 2013-14. ii) How the assessee is going to repay the loan.
Submissions
Your honour, enclosed herewith Xerox copy of acknowledgement of submitted ITR for AY 2013-14.
Your honour, how the assessee can repay obtained loan, the status of here income (enumerated) is attached herewith.
3. Your honour enclosed herewith status of Amar Raha, the loanee, i.e. jurisdiction of Amal Raha.
Your honour, the assessee has started repaying taken loan and during financial year ending March 2014 she has paid ₹ 16,95,000/- towards the loan.
5. With this submission it is requested to your honour to compute the income as under Sr. Head of Income Amount No. a. Total income 1,87,420 b. Undisclosed income from other 72,362 sources c. Disallowance of 80C 7,820 Total income 2,67,602 This has been quoted by CIT(A) in his order.
5. From the above grounds raised, it seems that the assessee has specifically raised the issue that the CIT(A) has not consider fresh evidences submitted before him despite the fact that the same were demanded by CIT(A) under Rule 46A of the Income Tax Rules 1962, (hereinafter the ‘Rules’). When this was pointed out to the learned Sr. Departmental Representative, he only stated that the issue can be remitted back to the file of the CIT(A) for considering the additional evidences and allowing one more opportunity to represent her case. None is present from assessee’s side despite service of notice.
6. We have heard Ld SR DR and gone through the facts and circumstances of the case. We find from the order of the CIT(A) that the CIT(A) has not consider the additional evidences as contended in the submissions reproduced above. Qua this assessee has raised a specific ground i.e. ground No. 3 before us. We have considered the issue and noted that the CIT(A) should have passed a speaking order in all the averments raised by assessee. Hence, we deem it fit to remit the matter back to the file of the CIT(A) to consider all the averments and also admit additional evidences and adjudicate the same. Needless to say that the CIT(A) will provide opportunity of being heard to the assessee and will also allow the assessee to file evidences/additional evidences.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 27-08-2018.