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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
Before: SHRI JASON P BOAZ, AM & SHRI SANDEEP GOSAIN, JM
आदेश / O R D E R
Per Sandeep Gosain, Judicial Member:
1. The Present Appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)- 11, in appeal No.CIT(A)-11/Cir-25/10- 11/12-13/481-U dated 17.10.2013 for assessment year 2008-09 on the following grounds:
(A.Y. 2008-09) Uttam S. Maji vs. ITO
“On the facts and in the circumstances of the Case and in law the learned
CIT(A)-11, Mumbai, has erred in confirming the addition of Rs.12,55,100/- of cash deposits considering it as unexplained money not recorded in the books of assessee u/s 69A of the I.T. Act,1961 without reasonable opportunity of being heard to the assessee.”
The brief facts of the case are that the case of the assesee was selected for scrutiny under CASS having AIR of cash deposits of Rs.12,55,100/-. After serving notice and seeking reply from the assessee, the assessment order u/s 143(2) of the Income Tax Act, 1961 was passed by AO dated on 10.12.2010 thereby adding back an amount of Rs.12,55,100/- to the assessee’s total income u/s 69A of the Income Tax Act,1961 as unexplained money found which is recorded in the assessee’s books of account. Aggrieved by the order of the assessment, assessee filed appeal before the learned CIT(A) and the learned CIT(A) after considering the case of the assessee dismissed the assessee’s appeal vide order dated 17-10- 2013. Aggrieved by the order of the learned CIT(A), the assessee has preferred appeal before us on the aforementioned grounds.
(A.Y. 2008-09) Uttam S. Maji vs. ITO Ground No. 1
The sole ground raised by assessee before us is that CIT(A) has erred in confirming addition of Rs.12,55,100/- of cash deposits considering which as unexplained money not recorded in the books of accounts of assessee u/s 69A of the Income Tax Act, 1961 without allowing reasonable opportunity of being heard to the assessee.
4. At the very outset, the Ld. AR appearing on behalf of the assessee submitted that the AO had made additions in the total income of the assessee solely on the ground that the assessee could not produce any record in order to justify entries contained in the records therefore, the same was considered as unexplained money.
It was further argued by ld. AR that the assessee had moved an application along with documents for leading additional evidence before the CIT(A), but the said permission for leading additional evidence was not allowed by the CIT(A).
Therefore, the assesse has again moved a letter for additional evidence which is at page no.1 of the paper book along with that the assessee has also placed on record relevant documents which are at page no.2 to 38 in the paper book.
(A.Y. 2008-09) Uttam S. Maji vs. ITO 5. We have considered the application/letter filed by assessee before us for seeking permission for leading additional evidence to admit the documents on record which are at page no.2to 38 which includes list of persons whose cash was sent to native place and confirmation of persons along with their PAN Cards and AADHAR Cards.
6. The learned DR appearing on behalf of revenue stressed for dismissing the said application for leading additional evidence and supported the orders of lower authorities.
We have heard the rival submissions, perused the materials placed on record and carefully considered the orders passed by the lower authorities. At the very outset we have analysed para number 8 of the learned CIT(A) order which is reproduced below:
“In response to the hearing notice issued by the undersigned one Shri. G.L. Ranka, CA appeared before the undersigned and filed his authority letter signed by the assessee. He offered to produce the cash book of the assessee for the period under consideration as also the workers who he claimed had given the cash to the assessee. He was required by the undersigned to justify as why the assesee could not produce such additional evidences at the time of the assessment proceedings. His explanation filed in writing on 10-10-2014 speaks of (A.Y. 2008-09) Uttam S. Maji vs. ITO the notice of hearing issued by the assessee not being served on the assessee. It is true that the notices could not be served on the asessee not at the address given in the return of income but at the Hooghly address available on the insurance receipt filed with the return but the fault for the same lies on the assessee who was not available at the address given in the return of income filed. No change of address was communicated to the AO.” After analyising the aforesaid portion of the CIT(A), we found that the assessee had made similar request before the CIT(A), but the CIT(A) turned down the said request of assessee for leading additional evidence on the ground that the assessee could not justify as to why assessee fail to produce such additional evidence at the time of assessment proceeding.
Considering the principles of natural justice, fair play and equity we are of the considered view that no prejudice would be cause to the revenue in case the documents produced by the assessee in support of his defence are admitted as additional evidence. Whereas, on the contrary, in case the documents produced by the assessee are not admitted as additional evidence then in that eventuality the rights of the assessee would be prejudice. Therefore, considering the afore said circumstances and in the interest of substantial cause we admit the documents at page no.2 to 38 of the paper book as additional evidence. Hence, while setting aside the order of AO, we revert back the case to the file of the AO with a direction (A.Y. 2008-09) Uttam S. Maji vs. ITO to verify and consider the documents now admitted as additional evidence and to pass fresh order of assessment. Needless to say, the AO would provide adequate opportunity to both the parties before passing the fresh order of assessment. Therefore this ground is allowed for statistical purposes. Ground no. 2 is general in nature and needs no separate adjudication in view of the decision on above ground.
In the result, the assessee’s appeal is allowed for statistical purposes. Order pronounced in the open court on 11th May, 2016 Sd/- Sd/- (Jason P. Boaz) (Sandeep Gosain) लेखा सद�य / Accountant Member �या�यक सद�य / Judicial Member मुंबई Mumbai; �दनांक Dated : 11.05.2016 Ps. Ashwini आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. आयकर आयु�त(अपील) / The CIT(A) 4. आयकर आयु�त / CIT - concerned 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard File आदेशानुसार/ BY ORDER,