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Income Tax Appellate Tribunal, “SMC-C” BENCH : BANGALORE
Before: SHRI SUNIL KUMAR YADAV
This appeal is preferred by the assessee against the order of the CIT(A), inter alia, on following grounds:
1. The learned CIT (A) erred in passing the order in the manner he did.
2. On the facts and in the circumstances of the case, The learned CIT(A) ought to have accepted the explanation of the Appellant in full with regard to the opening capital and ought to have refrained from confirming the impugned addition of Rs.7,38,297/-
3. The learned CIT (A) ought to have appreciated that the Appellant had adequate resources for investment and accordingly he ought to have deleted the addition as made by the assessing officer.
4. The id CIT(A) erred in confirming the addition of Rs. 3,00,000/- as difference in bank balance as unexplained investment without appreciating the submission of the Appellant.
5. Without prejudice, the addition as confirmed by the learned CIT(A) are arbitrary, excessive, unreasonable and ought to be deleted in toto.
6. The learned CIT(A) erred in confirming the levy of interest charged under sections 234A,234B of the Act. 7. For these and such other grounds that may be urged at the time of hearing, the Appellant prays that the appeal may be allowed.
During the course of hearing, the learned counsel for the assessee invited my attention that in the case of husband of the assessee, under identical circumstances, the matter was restored back to the AO to re-examine the issue of opening capital afresh after affording opportunity of being heard to the assessee. Copy of the order is placed on record.
The learned DR placed reliance upon the order of the CIT(A).
Having carefully examined the orders of the lower authorities in the light of rival submissions and the order of the Tribunal in the assessee’s own case, I find that under identical circumstances, the matter was restored back to the AO for readjudication of the issue afresh after affording opportunity of being heard to the assessee. The relevant observation of the Tribunal is extracted hereunder for the sake of reference:
“7. The ld. DR supported the orders of authorities below.
I have considered the rival submissions. Regarding Ground No.2 in A.Y. 2005- 06 in respect of addition of Rs.15,55,477, I am of the considered opinion that the assessee deserves one more opportunity to establish that various properties in question which are not accepted by the AO as having been acquired by the assessee prior to 1.4.2004 is acquired on which date. If the assessee can establish that these properties were acquired by the assessee prior to 1.4.2004, then it has to be accepted that opening capital was more by that amount over and above the opening capital accepted by the AO. I feel so because the AO has also not established that these properties in question were in fact acquired by the assessee after 1.4.2004. Hence on this issue, I set aside the order of the CIT (Appeals) and restore the matter back to the file of Assessing Officer for fresh decision. The assessee has to establish that these properties in question of Rs.69,370, & 701/Bang/2014 Rs.1,71,740, Rs.1,76,132.50, Rs.3,34,145 and Rs.5,52,500 were acquired by the assessee before 1.4.2004. If all of the properties or some of them were acquired by the assessee before 1.4.2004 and assessee is able to establish this, then the value of such property should also be considered as part of opening capital over and above the amount of opening capital accepted by the AO of Rs.22,73,726. The AO should pass necessary order as per law as per above observations after providing adequate
opportunity of being heard to the assessee. Accordingly, ground No.2 of the assessee's appeal for A.Y. 2005-06 is allowed for statistical purposes.”
Since the Tribunal has taken a particular view in a similar set of facts, I find no justification to take a contrary view in this appeal. Accordingly, I set aside the order of the CIT(A) and restore the matter back to the AO to readjudicate the matter afresh after affording opportunity of being heard to the assessee.
In the result, appeal of the assessee is allowed for statistical purposes.
Pronounced in the open court on 22nd December, 2017.