ASLAM ABDUL RAZAK MALKANI,MUMBAI vs. ITO 24(1)(3), MUMBAI

During hearing, the learned counsel for the assessee explained that due to differences with the partners the necessary details could not be filed, which resulted into addition on account of unexplained cash credit. The assessee has also filed paper-book running into 83 pages containing various details, which could not be filed by the assessee before the Assessing Officer as well as before the learned CIT(A). The plea of the learned counsel is that if these details are considered the truth will ooze out.

The learned DR shri Rajesh Kumar Yadav, contended that these details could not be filed before the Assessing Officer/CIT(A) therefore, the additions may be sustained.

We have considered the rival submissions and perused the material available on record. The facts in brief are that the assessee is an individual declaring income of Rs 2,32,150/- in his return filed on 26th March 2010, which was initially processed u/s. 143(1) of the Act. The case of the assessee was selected for scrutiny, therefore notice u/s. 143(2) and 142(1) of the Act were issued to the assessee.

The assessee attended the proceedings and filed the details, which were available with the assessee. The assessee vide letter dated 10.11.2011 furnished the copy of the account of the firm and TDS certificates. As per the Revenue the assessee could not explain the source of cash deposit in the said account amounting to Rs 16,39,892/- and, therefore, the addition was rightly made u/s. 68 of the Act. IT is noted that the assessee could not appear before the learned CIT(A) inspite of fixing the case of various dates as mentioned in para 4 of the impugned order. Considering the totality of facts, we are of the view that even as per Article 265 of the Constitution of India only due taxes have to be levied/collected. Since the assessee has filed the necessary details which claim to be going to the root of the matter, therefore, we deem it appropriate to remand this appeal to the file of the learned Assessing Officer to examine the claim of the assessee and decide afresh in accordance with law. The assessee is at liberty to furnish necessary evidence before the learned Assessing Officer to substantiate his claim for which due opportunity of being heard be provided to the assessee. The appeal of the assessee is allowed for statistical purposes.