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Income Tax Appellate Tribunal, AHMEDABAD – BENCH ‘B’
Before: SHRI RAJPAL YADAV & SHRI N.K. BILLAIYA
आदेश/O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER:
Revenue is in appeal against order of ld.CIT(A)—7, Ahmedabad dated 14.7.2014 passed for the Asstt.Year 2010-11.
Grounds taken by the Revenue read as under:
The Ld.CIT(A) has erred in law and on facts in admitting fresh evidences in contravention of Rule 46A ignoring the fact that the appellant was provided sufficient and reasonable opportunity for furnishing details and for explaining transactions.
ITA No.2777/Ahd/2015 2 2. The Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.4 lakhs made u/s. 68 of the Act ignoring the fact that transactions of Rs. 4 lakhs being cash deposited on 16.7.2009 was not properly explained. 3. The Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.58,52,999/- out of total addition of Rs. 63,07,999/- thereby restricting the addition up to Rs. 4,55,0007- only ignoring the facts of the case that deposits on various dates in assessee's bank account were not properly explained. It is, therefore, prayed that the order of the CIT (A) be set aside and that of the A.O. be restored to the above extent.
In response to the notice of hearing, none come present on behalf of the assessee at the time of hearing. With the assistance of the ld.DR, we proceed to decide the appeal ex parte qua the assessee, after hearing the ld.DR and considering the material available on record.
So far as first ground of appeal is concerned, it is pertinent to observe that the ld.CIT(A) has recorded a finding that the assessee was prevented by sufficient reasons for not producing evidence before the AO. The ld.First Appellate Authority has admitted additional evidence and called for remand report from the AO. The AO did not dispute for production of additional evidence by the assessee. Thus, considering finding of the ld.CIT(A) recorded in para 4.12 we are satisfied that the ld.CIT(A) has followed procedure contemplated in Rule 46A of the Income Tax Rule and no interference is called in the order of the ld.CIT(A) on this issue.
As regards grounds no.2 and 3 are concerned, brief facts of the case are that the assessee has filed his return of income on 16.3.2011 declaring total income at Rs.2,15,506/-. The AO has received an information from sub-Registrar regarding sale of immovable property at R.24 lakhs. He reopened assessment by
ITA No.2777/Ahd/2015 3 recording reasons and issued notice under section 148 of the Income Tax Act. The ld.AO has made addition of Rs.5,44,600/- and Rs.64,07,999/- with the aid of section 68 of the Act. The AO did not make elaborate discussion. The finding recorded by him reads as under:
“4.2 Cash credit u/s 68 of the Act.
The assessee could not explained, the source of cash deposited in to saving bank account. Therefore, the cash amount deposited in to saving bank account of Rs.5,44,600/- is treated as cash credit u/s 68 of the Act and same is added to the total income of the assessee. The penalty proceedings u/s 271(l)(c) of the Act is being separately initiated for furnishing of inaccurate particulars of income and concealment of income. Addition: Rs.5,44,600/-
4.3 Unexplained investment u/s 68 of the Act:
Since, the assessee could not explained, the source of investment in to saving bank account. Therefore, the amount deposited in to saving bank account of Rs.63,07,999/- is treated as unexplained investment u/s 68 of the Act and same is added to the total income of the assessee. The penalty proceedings u/s 271(1)(c) of the Act is being separately initiated for furnishing of inaccurate particulars of income and concealment of income. Addition: Rs.63,07,999/-
On appeal, the ld.CIT(A) has observed that in the remand proceedings the AO was satisfied with explanation of the assessee with regard to deposit of Rs.52,58,800/-. Similarly, the ld.CIT(A) was satisfied with regard to the explanation given by the assessee for deposits of Rs.6,40,000/-. Finding recorded by the ld.CIT(A) is worth to note. It reads as under:
“9.2 I have considered the assessment order and the submissions made by the appellant. The Assessing Officer
ITA No.2777/Ahd/2015 4 has made the addition of Rs.63,07,999/- on account of unexplained investments in the form of deposits in the appellant's bank account. The matter was sent back to the AO for verification during remand proceedings and vide his letter dated 30.09,2014, the AO submitted his remand report after verification of evidences produced by the appellant. A perusal of the same shows that the A.O has verified the transactions and is satisfied about the genuineness of deposits aggregating Rs.52,58,800/-out of the total amount of Rs.63,07,999/-. In respect of the balance amount of Rs.10,59,199/- which was not considered by the AO during remand proceedings, the appellant submitted details of entries into his bank account. It is seen that an amount of Rs.6,40,000/- credited to the bank account by cheque is explained by the appellant along with evidences. Thus, the amount of Rs.58,98,800/- (Rs.52,58,800/- verified by the AO plus Rs.6,40,000/- verified during appellate proceedings) stands explained. The appellant, however, has not been able to give any confirmation or supporting evidences in respect of the remaining amount of Rs.4,55,000/- out of the total amount of Rs.63,07,999/-. In view of the same and considering the discussion above, the addition is restricted to Rs.4,55,000/-. This ground of appeal is partly allowed.”
On due consideration of the above finding, we are of the opinion that the ld.CIT(A) has based her finding with regard to deletion of Rs.52,58,800/- on the remand report submitted by the AO. In other words, the ld.First Appellate Authority has observed that the AO has verified the nature of evidence produced by the assessee, and was satisfied with the source of deposits representing Rs.52,58,800/-. Similarly, the ld.CIT(A) has perused details of balance amount which was not considered by the AO in the remand report and was satisfied with the regard to explanation of the assessee for deposits of Rs.6,40,000/-. Contrary to this factual finding of the ld.CIT(A) department has not produced any evidence. There is no pleading on record which can demonstrate that the ld.CIT(A) has committed any factual
ITA No.2777/Ahd/2015 5 error while placing her implicit reliance on the remand report of the AO. Thus, considering finding of the ld.CIT(A), we do not see any infirmity in the impugned, and accordingly, ground nos.2 and 3 are rejected.
Ground no.4 is general in nature. It does not call for recording of any finding.
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the Court on 5th December, 2017.
Sd/- Sd/- (N.K. BILLAIYA) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER