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Income Tax Appellate Tribunal, SURAT (SMC
Before: SHRI DR. A. L. SAINI
आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2011-12, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 05.06.2023, which in turn arises out of an assessment order passed by Assessing Officer under section 144 r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 13.11.2018.
The grounds of appeal
raised by the assessee are as follows: “1. The learned CIT(A) has erred both in law and on the facts of the case in confirming the action of AO in making addition of Rs.10,46,520/-.
2. Hon. CIT(A), NFAC have passed the order without properly appreciating the fact and that they further erred in grossly ignoring ITA.536/SRT/2023/AY.2011-12 Viral Shailesh Shah various submissions, explanations and information submitted by the assessee from time to time which ought to have been considered before passing the impugned order. This action of confirming addition of Hon. CIT(A), NFAC is clear breach of law and Principles of Natural Justice and therefore deserves to be quashed.
3. Hon. CIT(A), NFAC have passed the order without considering our written submission- 2 in which detailed explanations for both the addition was duly justified. Hon. CIT (AP, NFAC had not brought all facts of the case on record and erred in passing order which is against the law and therefore deserves to be quashed.
The learned CIT(A) has erred in law and on facts of the case in confirming action of the Id. AO in levying interest u/s 234A/B/C of the Act. The assessee craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal
at the time of or before the hearing of the appeal.”
3. The appeal filed for Assessment Year 2011-12, is barred by limitation by 3 days. The assessee has moved a petition requesting the Bench to condone the delay. I have heard both the parties on this preliminary issue. Having regard to the reasons given in the petition, I condone the delay and admit the appeal for hearing.
4. Brief facts of the issue in dispute are stated as under. The assessee is an Individual before me and had not filed his return of income for financial year 2010-11, relevant to AY.2011-12 required as per section 139 of I.T. Act. Therefore, assessee’s case was re- opened and accordingly, notice u/s 148 of the Act was issued on 25.03.2018 by the ITO, Ward-4, Valsad after obtaining approval of Ld. Pr. CIT, Valsad u/s 151(1) of the IT Act and the same was duly served upon the assessee.
5. As per AIR information, it was noted by Assessing Officer that the assessee had made investment of Rs.5,00,000/- in Bond/Debentures of State Bank of India during the year under consideration. Since, the assessee had not filed his return of income, ITA.536/SRT/2023/AY.2011-12 Viral Shailesh Shah thus, the sources of investment was unexplained therefore, assessing officer made addition of Rs.5,00,000/-.
6. The Assessing Officer also noted that assessee has received salary from Ventura Commodities Pvt. Ltd. amounting to Rs.5,46,524/-. The salary receipts were even though exceed, the minimum taxable income, assessee has not furnished the return of income, as required u/s 139 of the I.T. Act and even in response to notice u/s 148 of the Act. Hence, Assessing Officer presumed that the assessee has no objection regarding above addition. Therefore, the salary of Rs.5,45,524/- received by the assessee from Ventura Commodities Pvt. Ltd. was treated as undisclosed income and the same was added to the total income of the assessee. This way, Assessing Officer made total addition of Rs.10,46,524/- (Rs.5,00,000 + Rs. Rs.5,45,524) 7. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A), who has confirmed the action of Assessing Officer. The ld CIT(A) noted that assessee has only submitted the computation of total income and the copy of salary certificate issued by Ventura Commodities Pvt Limited. The assessee has not submitted any other documentary evidences like the loan sanctioned letters, correspondences and the loan application etc. submitted by the assessee to the Ventura Commodities Pvt. Limited. Therefore, in view of the above facts, the ld CIT(A) confirmed the addition made by the assessing officer.
8. Aggrieved by the order of ld. CIT(A), the assessee is in appeal before this Tribunal.
ITA.536/SRT/2023/AY.2011-12 Viral Shailesh Shah 9. Shri P. M. Jagasheth, Learned Counsel for the assessee, argued that assessee is a salaried employee and filed the following documents and evidences before ld CIT(A) viz: (1) Computation of income for AY.2011-12 along with challan (vide Pb.4 to 6), (2) Form No.16 (Salary Certificate) issued by Ventura Commodities Pvt. Ltd. along with Annexure-B for details of TDS deducted by Employer (vide Pb.7 to 9), (3) Confirmation Account of Ventura Securities Limited for FY.2010-11 (vide Pb.10) and (4) Contract Note of Ventrua Securities Ltd. (vide Pb.11). The Ld. Counsel stated that Assessing Officer made addition on account of salary, however on salary TDS has been deducted. The Ld. Counsel also took me through the confirmation account of Ventura Securities Limited and stated that no addition should have been made in the hands of the assessee, as the transaction is genuine and at arm’s length. The Ld. Counsel also submitted that assessee has deposited more TDS on salary, therefore assessee is entitled to claim refund, therefore, there is no any income escaped from assessment in the assessee’s case under consideration, hence addition made by the Assessing Officer may be deleted.
On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity.
I have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. Before me, the assessee filed a ITA.536/SRT/2023/AY.2011-12 Viral Shailesh Shah computation of total income wherein the income from salary, income from house property and income from capital gain etc. were shown by the assessee. The income from salary has supported by Form No.16 (salary certificate) and TDS deducted by the employer on such salary. On salary income, the employer has deducted more TDS, which is refundable to the assessee, therefore genuineness of the salary cannot be doubted. The Ld. Counsel also submitted the statement of short term capital gain wherein I do not find any factual error. I have gone through the contract note of Ventura Securities Limited and found that the assessee has disclosed the transaction in his computation of total income.
Moreover, I note that assessee submitted computation of income for AY.2011-12 along with TDS challan, Form No.16 (salary certificate) issued by the employer and TDS deducted by the employer. I have also gone through the confirmation of accounts of Ventura Securities Limited and also examined the contract note of Ventura Securities Limited. I note that ld. CIT(A) did not find any mistake in these documents and evidences. I note that ld CIT(A) has not refuted or discredited these evidences and documents. The ld CIT(A) does not mention why he is not accepting these evidences. On the contrary, the ld CIT(A) has just brushed aside these evidences without even a word on why they are not acceptable. It is a well settled Law that when an assessee has all the possible evidence in support of its claim, they cannot be brushed aside based on surmises. Hence, I am not inclined to accept the contention of the ld CIT(A), in any manner and hence the addition so made is deleted. Hence, I delete both the additions and therefore assessee`s appeal is allowed.
ITA.536/SRT/2023/AY.2011-12 Viral Shailesh Shah 13. In the result, appeal filed by the assessee is allowed.
Order is pronounced on 29/12/2023 in the open court.