ASIF RASOOL KADIWALA,MALAD EAST vs. ITO, LOWER PAREL EAST
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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI OM PRAKASH KANT, AM & MS. KAVITHA RAJAGOPAL, JM
IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI
BEFORE SHRI OM PRAKASH KANT, AM AND MS. KAVITHA RAJAGOPAL, JM ITA No.3367/Mum/2023 (Assessment Year: 2010-11
Asif Rasool Kadiwala ITO, Lower Parel East B 601, Paradise Sra Pathanwadi Mumbai – 400 012 Vs. Malad (E), Mumbai – 400 097
PAN/GIR No. ALKPK 4488 P (Assessee) (Respondent) :
Assessee by : Shri S. A. H. Zaidi Respondent by : Ms. Kakoli Ghosh
Date of Hearing : 31.01.2024 Date of Pronouncement : 31.01 .2024
O R D E R Per Kavitha Rajagopal, J M:
This appeal has been filed by the assessee, challenging the order of the learned
Commissioner of Income Tax (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal
Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'),
pertaining to the Assessment Year (‘A.Y.’ for short) 2010-11.
The assessee has challenged the order of the ld. CIT(A) on the grounds of the
addition made by the ld. Assessing Officer ('A.O.' for short) and upheld by the ld. CIT(A)
u/s. 68 of the Act amounting to Rs.15,50,000/- as being the cash deposit for which source
was unexplained.
2 ITA No. 3367/Mum/2023 (A.Y.2010-11) Asif Rasool Kadiwala vs. ITO 3. The brief facts are that the assessee is an individual and had not filed his return of
income during the year under consideration. The ld. A.O. reopened the assessee’s case
based on the information received from ITAX Net NMS Cycle 1 in the priority category
P1 that the assessee has engaged in commodity transaction of Rs.173,76,98,425/- during
the impugned year. Notice u/s. 148 of the Act dated 31.03.2017 was issued and served
upon the assessee and in response to the said notice, the assessee has stated that his return
of income is to be considered as Nil. After duly considering the submissions made by the
assessee, the ld. A.O. determined the total income at Rs.16,73,200/- after making an
addition of Rs.15,50,000/- u/s. 68 of the Act being the cash deposit in the savings bank
account of the assessee which was not substantiated and passed the assessment order
dated 29.12.2017 u/s. 143(3) r.w.s. 147 of the Act.
The assessee was in appeal before the first appellate authority who then confirmed
the impugned addition made by the ld. A.O. vide an ex parte order dated 31.07.2023 on
the ground that the assessee had not offered any explanation as to the nature and source
of the cash deposits.
Aggrieved, the assessee is in appeal before us, challenging the order of the ld.
CIT(A).
We have heard the rival submissions and perused the materials available on
record. The learned Authorised Representative ('ld. AR' for short) for the assessee
contended that the first appellate authority has not given sufficient opportunity to
substantiate the claim of the assessee.
3 ITA No. 3367/Mum/2023 (A.Y.2010-11) Asif Rasool Kadiwala vs. ITO 7. The learned Departmental Representative ('ld.DR' for short) vehemently opposed
to the said contentions stating that the assessee has been continuously non compliant
before the lower authorities.
From the rival contentions, it is observed that the assessee has traded on MCX and
NCDEX from which the ld. A.O. had sought for information pertaining to the transaction
entered into by the assessee along with the details of the brokers. The ld. A.O. observed
that from the global report submitted by M/s. Monarch Comtrade Pvt. Ltd., the assessee
has incurred a loss of Rs.26,98,015/- and that the assessee has advanced various amounts
to the brokers as per the ledger. The ld. A.O. also observed from the bank statement
submitted by the assessee that there has been cash deposit of Rs.15.50 lacs in his bank
account which the assessee has advanced to M/s. Monarch Comtrade Pvt. Ltd. The
assessee has during the assessment proceeding disowned the said amount and stated that
his younger brother has misused his signed cheques which were paid to M/s. Monarch
Comtrade Pvt. Ltd. The ld. A.O. not convinced with the assessee’s contention added the
impugned amount to the total income of the assessee u/s. 68 of the Act as ‘unexplained
cash credit’ for the reason that the assessee has failed to discharge the onus casted upon
him to prove the source of the said deposit. Even before the first appellate authority, the
assessee has failed to substantiate his claim by sufficient documentary evidences.
In view of the above factual matrix, we are of the considered opinion that the
assessee may be given one more opportunity to present his case before the first appellate
authority in view of the principles of natural justice. We hereby direct the assessee to co-
4 ITA No. 3367/Mum/2023 (A.Y.2010-11) Asif Rasool Kadiwala vs. ITO operate with the proceedings before the ld. CIT(A). We, therefore, remand this issue back
to the file of the ld. CIT(A) to decide the grounds of appeal on the merits of the case.
In the result, the appeal filed by the assessee is allowed for statistical purpose.
Order pronounced in the open court on 31.01.2024
Sd/- Sd/-
(O P Kant) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : 31.01.2024 Roshani, Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT - concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER,
(Dy./Asstt. Registrar) ITAT, Mumbai
