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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-II’ NEW DELHI
Before: SMT DIVA SINGH
Assessee by Sh. Somil Agarwal, Adv. & Sh. Tarun Kumar, Adv. Revenue by Sh.F.R.Meena, Sr.DR Date of Hearing 07.11.2016 Date of Pronouncement 06.01.2017 ORDER The present appeal has been filed by the assessee assailing the correctness of the order dated 11/08/2015 of CIT(A)-21, New Delhi pertaining to 2011 – 12 assessment year on various grounds including Ground Nos. 2 and 3 which read as under:-
“That in any case and in any view of the matter, action of Ld.CIT(A) in confirming the action of Ld.AO in making aggregate addition of Rs.29,43,000/- u/s 68 on account of cash deposits is beyond jurisdiction, bad in law and against the facts and circumstances of the case.
That in any case and in any view of the matter, impugned additions and impugned order are bad in law, illegal, unjustified, barred by limitation, contrary to facts & law and based upon recording of incorrect facts and finding, without giving adequate opportunity of hearing, in violation of principles of natural justice and the same deserves to be quashed.”
2. The Ld. AR at the time of hearing, inviting attention to the impugned order, submitted that the without prejudice, alternate prayer taken by the assessee before the CIT(A) has not been adjudicated upon. Accordingly, it was his limited prayer that the matter may be remanded to the Assessing Officer to address the issues. In support of the said prayer, attention was invited to pages 9 and 10 of the impugned order wherein the specific submissions of the assessee have been recorded. The same are reproduced hereunder:-
“It is further submitted that though no addition can be made for the cash found deposited in the bank account, as all deposits and withdrawals transactions appearing the in the bank account of the assessee are for purchases and sales or are out of cash withdrawn. Even if for the argument sake, if the business carried out by the assessee is not believed, though vehemently denied, and by any stretch of any imagination if any addition could have been made that cannot be more than the peak cash credit worked out i.e. of Rs.1,62,042/- working of which is enclosed in the Paper Book at PB 45.” (emphasis provided) 2.1. The said prayer it was submitted had been supported by various decisions namely Addl. CIT vs Chetan Das (1975) 99 ITR 46 (Del); Addl. CIT vs Dharamdas Agarwal (1983) 144 ITR 143 (MP); Addl. CIT vs Mohan Engineering Co. )1985_ 151 ITR 571 (Pat.); CIT vs Neemar Ram Badlu Ram (1980) 122 ITR 68 (All.); Surendra M.Khandar vs Asstt. CIT (2001) 76 ITD 121 (Mum.); Essem Intra Port Services P.Ltd. vs Asstt. CIT (2000) 72 ITD 228 (Hyd.); and Kronor Investments Limited vs DCIT (ITAT Mumbai).
2.2. The necessary facts for deciding the issue, it was submitted had been provided to the CIT(A) and are available at paper book pages 41 to 56 filed before the said authority. Copy of the very same paper book, it was submitted has been filed before the ITAT also. It was submitted that since it may be required to be looked into and considered by the Assessing Officer accordingly, the request has been made that it may be remanded to the Assessing Officer.
3. The Ld. Sr.DR, Mr.F.R.Meena appearing on behalf of the Revenue, submitted that admittedly the alternate prayer of the assessee though recorded in the impugned order, has not been considered by the CIT(A) while adjudication. Accordingly, it was his submission that he has no objection if the matter is remanded to the CIT(A) so as to consider the paper book at pages 41 to 56 placed before him. However, remand to the Ravinder Kumar Sharma vs ITO Assessing Officer was objected to. It was his submission that if need be the law permits the CIT(A) to obtain a Remand Report. Thus, the prayer that the matter may be remanded is not objected to but the remand should be made, it was submitted to the CIT(A) as it is that Authority which has not considered the ground.
I have heard the rival submissions and perused the material available on record. The relevant facts of the case are that the assessee in the year under consideration declared an income of Rs.1,45,937/- by way of filing its return, which was processed under section 143(1). After issuance of notice under section 143 (2) and issuance of questionnaire etc., the assessee was required to explain the deposits in its bank accounts as the said return was selected for scrutiny on the basis of AIR information. The assessee was stated to be carrying on the business of trading of Rubber products during the year and the business was stated to have been closed by December 2010. In view of the fact that the explanation was not accepted in regard to the deposits, the addition was made by the Assessing Officer. The issue was carried in appeal before the CIT(A). A perusal of the impugned order shows that the aforesaid submission was made before the CIT(A) which admittedly has not been adjudicated upon. In the peculiar facts and circumstances of the case, considering the submissions of the parties the issue is restored back to the file of these CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. 5. In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 06th of January, 2017. Sd/- (DIVA SINGH) JUDICIAL MEMBER *Amit Kumar*