TAJINDER SINGH,CHANDIGARH vs. ITO, W-5(3), CHANDIGARH

आदेश/ORDER PER DIVA SINGH

The present appeal has been filed by the assessee assailing the correctness of the order dated 17.11.2016 of CIT(A)-2 Chandigarh pertaining to 2011-12 assessment year on the following grounds : 1. That the order of the Worthy CIT(A)-2, Chandigarh is being challenged on the ground of it being bad in law and against the provisions of the Income tax Act, 1961. 2. That the additions made by the Ld. Assessing officer as upheld by the Worthy CIT(A), Chandigarh U/s 69 of the Income Tax Act, 1961, on account of cash payment of Rs. 29 lacs given by relatives/friends for purchase of flat is not sustainable and is against the provisions of the Act on the fact that affidavits, bank account statements, etc. of these person were duly submitted & therefore the said order of the CIT(A), Chandigarh deserves to be set aside. 2. Mr. Atul Goyal appearing on behalf of the assessee submitted that in the facts of the present case, the assessee purchased a house wherein availability of Rs. 29 lacs was questioned by the AO. The specific property was purchased for Rs. 32 lacs and the availability of Rs. 3 lacs was accepted. With regard to the remaining amount of Rs. 29 lacs, the assessee explained before the AO that the money was borrowed and arranged from friends and relatives. Inviting attention to page 2 of the

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order, it was submitted that for the first time on 17.03.2015, the assessee was required to produce the parties whose affidavits and copies of bank accounts etc. were filed. On the said date, time was sought. The AO on 20.03.2015 granted another few days’ time and adjourned the case to 25.03.2015 and passed the order on the very same day. 2.1 Inviting attention to Paper Book page 8 and 9, it was submitted that out of 10 people who had funded the assessee, two persons had died before commencement of the proceedings, the assessee's father and his brother out of the other five persons, three were living outside Chandigarh i.e. in Hoshiarpur, Jalandhar and Kapurthala and two persons were though living in Chandigarh could not come on the said date. Inviting attention to the impugned order, it was submitted, the CIT(A) relying upon the remand report of the AO as discussed at page 3 of his order, confirms the addition. Reading therefrom, it was submitted, the AO merely reiterates that these parties were not produced at the assessment stage and refuses to consider the evidences. Accordingly, it was his prayer that considering the evidences, the addition may be deleted. It was also his submission that the assessee has never expressed his un-willingness to produce the parties before the AO. It was only due to the shortage of time then that they could not be produced. It was his submission that he is ready and willing to produce them before the AO and CIT(A) except his father and brother who is no more. However, affidavits of the family members in support of the availability of funds is available on record. 3. The ld. Sr.DR relies upon impugned order. 4. We have heard the rival submissions and perused the material on record. A perusal of the order shows that the CIT(A) has confirmed the addition relying upon the fact that during the assessment stage, the creditors were not produced. He has also noted that mere filing of affidavit and stating the source of income do not explain the source of money in the hands of creditors. We find in the affidavits filed on behalf of the assessee, the availability of funds has been explained. However, it is noticed that neither the AO nor CIT(A) the have cared to address the affidavits filed. Considering the submissions that the assessee is in a position to produce the surviving friends and relatives, we restore the issue back to the file of the CIT(A) with the direction to pass a speaking

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order in accordance with law after giving the assessee reasonable opportunity of being heard. At the same time, it is made clear that the opportunity so provided, it is hoped, is not abused by the assessee as in the eventuality of abuse of the same, the ld. CIT(A) would be at liberty pass a speaking order on the basis of material available on record. Thus, it is hoped that the assessee in its own interest makes full and proper compliance before the said authority. 5. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 09.10.2018. Sd/- Sd/-

( अ�नपूणा� गु�ता ) ( �दवा �संह ) (ANNAPURNA GUPTA) (DIVA SINGH) लेखा सद�य/ Accountant Member �याय�क सद�य/ Judicial Member “पूनम” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : अपीलाथ�/ The Appellant - 1. ��यथ�/ The Respondent - 2. आयकर आयु�त/ CIT 3. आयकर आयु�त (अपील)/ The CIT(A) 4. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 5. गाड� फाईल/ Guard File 6.

आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar