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Income Tax Appellate Tribunal, MUMBAI BENCHES, ‘G’ MUMBAI
Before: Shri Joginder Singh, & Shri Manoj Kumar Aggarwal
आदेश / O R D E R
Per Joginder Singh(Judicial Member) The assessee is aggrieved by the impugned order dated 14/11/2011 of the Ld. First Appellate Authority, Mumbai, confirming the assessment order, treating the entire cash deposit in the bank as unexplained cash credit u/s 68 of the Income Tax Act, 1961 (hereinafter the Act).
The assessee has also filed additional ground. Before us, the crux of argument advanced by Miss. Keyuri Desai, ld. counsel for the assessee is that proper/adequate opportunity of being heard was not provided to the assessee. On the other hand, Miss Anupama Singhla, ld. DR, defended the addition sustained by the Ld. Commissioner of Income Tax (Appeal) on the ground that the assessee was provided opportunity but kept on asking adjournment, therefore, there was no option with the First Appellate Authority but to confirm the addition made by the Ld. Assessing Officer.
2.1. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee declared income of Rs.2,16,476/- in his return filed on 17/07/2007, which includes income from salary. There was an AIR information with the Department that there was a cash deposit of Rs.12,55,000/- in the bank account maintained a joint account with his wife M/s. Neeta Y. Shah in Shamrao Vithal Cooperative Bank. As per the assessee, the cash also belonging to the wife of the assessee, who is doing private coaching investment in trading in shares and debentures. The cash was claimed to be accumulated over a period of several years and was properly shown in the bank balance sheet. It was claimed by the ld. counsel for the assessee that proper and adequate opportunity were not provided to the assessee and the assessment was framed hurriedly adding the cash u/s 68 of the Act.
2.2. We find that the assessee challenged the addition before the Ld. Commissioner of Income Tax (Appeal). The assessee was explained to be a teacher in the college. Before the Ld. Commissioner of Income Tax (Appeal) also, it was claimed that the cash deposit was out of earlier savings/tuition and has already suffered tax. The Ld. Commissioner of Income Tax (Appeal) has also observed that the assessee could not substantiate his claim and the claim of tuition is merely an afterthought and simply to escape the tax, the assessee has taken this plea. The ld. counsel for the assessee also claimed that additional evidence was filed before the Ld. Commissioner of Income Tax (Appeal), which was not admitted and goes to the root of the controversy. The ld. DR objected to the claim of the assessee with respect to non-service of notice u/s 143(2) of the Act. The ld. DR also showed from the record that this notice was served upon the assessee. At this stage, the ld. DR did not press his ground of non-service of notice, therefore, so far as, the argument of the ld. counsel for the assessee with respect to non-service of notice is dismissed as not pressed. However, so far as, merits of the issue is concerned, keeping in view, the principle of natural justice, we admit the additional evidence and remand the same to the file of the Ld. Commissioner of Income Tax (Appeal) for fresh adjudication, in accordance with law. The assessee is at liberty to furnish the additional evidence before the Ld. Commissioner of Income Tax (Appeal) for which due opportunity be given to the assessee to substantiate his claim. Thus, the appeal of the assessee is partly allowed for statistical purposes.
Finally, the appeal of the assessee is partly allowed for statistical purposes.
This order was pronounced in the open court in the presence of the ld. representative of both sides on the conclusion of hearing on 19/01/2017.