PRAKASH SHIVAJI MALODE ,NASHIK vs. ITO, WARD1(4), NASHIK

ORDER

PER DR. DIPAK P. RIPOTE, AM:

2. The Ld. AO failed to appreciate that the assessee was not required to maintain books and accounts under Section 44AA of the Income Tax Act and hence addition made under Section 69A be set aside.

3. Without prejudice to other grounds of appeal, the Ld. AO failed to allow cross examination of M/s.Fiza Fruit Merchant and thereby erred in passing order without granting fair opportunity of representation.

4. The appellant craves to leave, add/amend or alter any of the above grounds of appeal.” Submission of ld.Authorised Representative(ld.AR) :

2. The ld.Authorised Representative(ld.AR) for the Assessee submitted that assessee’s appeal was dismissed by the ld.CIT(A) without discussing each and every ground and merits of the case and merely dismissed for non-compliance. Ld.AR submitted that assessee is an agriculturist hence he is not required to file return . Ld.AR filed Paper Book containing 35 pages. Ld. AR invited our attention to the 7/12 extract which is at page 9-10 of the paper book to demonstrate that assessee own around 10 acres of land and regularly doing agricultural activities.Ld.AR submitted that in the 7/12 extract Grapes are shown as crop. Ld.AR submitted that during the year assessee had grown fruits which he sold to commission agent Fiza Fruit merchant and commission agent. The Ld.AR invited our attention to the copies of some bills issued by Fiza Fruit merchant and commission agent. Ld.AR submitted that 2 the Department claimed to have collected information from Mr.Nazir Prop of Fiza Fruits who denied any purchases from assessee during the year. Ld.AR submitted copy of the information collected by the ITO was never provided to the assessee. This is bad in law. The assessee had filed an affidavit confirming sale and depositing the amount in bank. The AO has failed to consider the Affidavit filed by the assessee. The Assessing Officer made addition without considering the Affidavit and without any basis. Hence it may be deleted.

Submission of ld.Departmental Representative(ld.DR) : 3. The ld.DR for the Revenue relied on the order of Assessing Officer(AO) and ld.CIT(A)[NFAC].

Findings & Analysis : 4. We have heard both the parties and perused the records. It is observed from the order of the ld.CIT(A)[NFAC] that the ld.CIT(A)[NFAC] did not decide the grounds of appeal on merit but merely dismissed the appeal of the assessee for non- compliance.

5. We have studied the Assessment Order, ld.CIT(A)’s order and submission of the assessee which is reproduced by the AO in his 3 order. It is observed that AO had issued notice u/s 148 on 24/03/2018 and served on the assessee by email. The AO issued notice u/sec.148 as AO had received information from the ITO (I&C) that the assessee had made cash deposits of Rs.30,00,000/- in the bank account. The Assessee had not filed return of Income prior to notice u/sec.148. In response to notice u/sec.148 the assessee filed return of Income. Assessee made elaborate submission which has been reproduced by the AO in the order. The assessee filed an affidavit stating that he has sold fruits to the Fiza Fruit Merchant and Commission Agent. Assessee received the sale consideration in Cash and the same has been deposited in the Bank account. In the Affidavit the assessee specifically stated that he is unable to understand why the Fiza Fruits has denied the transaction. The AO in the Assessment Order has referred to the Bills filed by the assessee and the Affidavit. Inspite of having these documents the AO has not called the proprietor of the Fiza Fruit Merchant and Commission Agent for cross examination. The AO has not confronted the Affidavit to the proprietor of the Fiza Fruit Merchant and Commission Agent. Once the assessee had filed all the details like copies of the bills and Affidavit the onus 4 shifted to the AO. AO failed to rebut the submission of the assessee. We have perused the copy of the so-called information obtained from the proprietor of the Fiza Fruit Merchant and Commission Agent by the ITO (I & C). This letter does not contain any date. There is no signature of the sender on the letter. The scanned copy of the letter is reproduced as under :

5 5.1 On the letter name mentioned is ‘M/s.Najir Akhtar Ravi Kumar Prop Sri Najir Akhtar’. However, as per the copies of the Bills filed by the assessee, the Assessee has sold fruits to the ‘Fiza Fruit Merchant and Commission Agent’. Thus, the so-called information obtained by the department apparently does not seem to have been obtained from the Fiza Fruit Merchant and Commission Agent. The letter is not signed by sender. Therefore, apparently said information does not pertain to the assessee. In these facts the letter does not have any evidentiary value. The entire addition of the AO is based on this so-called letter. The AO has not brought on any evidence and not considered the affidavit of the assessee. In these facts and circumstances of the case we are of the opinion that the Assessee had fulfilled his onus by filling the Bills and Affidavit. Hence the addition made by the AO is not sustainable. Accordingly, the AO is directed to delete the addition.