LEELA DEVI JAIN,TONK vs. ITO, WARD- TONK, TONK

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 218/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2011-12 cuke Leela Devi Jain Income-tax Officer Plot No. 04, Bhanwar Vs. Ward-Tonk, Colony, Tonk Zila, in front of Rajasthan Pustakalaya, Tonk- Rajasthan LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AGAPJ 2195 F vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Muzaffar Iqbal (Adv.) jktLo dh vksj ls@ Revenue by : Smt Monisha Choudhary (Addl. CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 24/05/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 14/06/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 10/02/2023 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2011-12 which in turn arise from the order dated 28.12.2018 passed under section 143(3) r.w.s 147 of the Income Tax Act by Income-tax Officer, Ward, Tonk.

2 ITA No. 218/JP/2023 Leela Devi Jain, Tonk vs. ITO, Tonk

grounds:-

“1. That on the facts and circumstances of the case the ld. CIT(A) grossly erred in passing the ex-parte order and confirming the addition made by the ld. Assessing Officer. 2. That on the facts and circumstances of the case and in law the ld. CIT(A) authorities grossly erred in confirming the addition of Rs. 8,68,028/- u/s 68 of the Act vide Assessment order u/s 143(3) r.w.s 147 of the Act. 3. The appellant craves leave to add, alter, modify or amend any ground on or before the date of hearing.”

assessee had deposited cash at Rs. 28,70,000/- in his saving bank

account with IDBI Bank, Tonk [a/c no. 683104000006231] during

financial year 2010-11. The assessee had filed her return of

income on 30.03.2015 being belated showing total income of Rs.

1,77,350/-. Since no return of income was filed within time allowed

u/s 139 and also the income disclosed by the assessee in her

belated return, prima facie, does not justify the source of cash

deposited, therefore, proceeding u/s 147 was initiated and notice

u/s 148 was issued on 29.03.2018 after recording reasons and

getting.

3.1 During the assessment copy of bank statement was obtained

from the bank u/s. 133(6) of the Act, this shows that the account is

3 ITA No. 218/JP/2023 Leela Devi Jain, Tonk vs. ITO, Tonk in joint name wherein the assessee has deposited a sum of Rs.

8,68,028/- on various dates. The assessee is basically a house

wife. Her Husband is government servant in state government for

last 21 years. The assessee never filed her return of income prior

to the year under consideration. Therefore, the assessee was

asked to explain the source of cash deposited. In reply, the

assessee explained that cash was deposited out of savings of the

husband and withdrawals from this account from time to time. A

cash flow statement has been filed. A chart of gross and net salary

of Shri Padam Chand Jain for last 21 years has been filed wherein

total gross salary of Rs. 27,64,176/- was received by him during his

service tenure. In addition, sources from GPF withdrawals, State

Insurance & Housing loan have been explained. The ld. AO noted

that the assessee failed to prove the genuineness of these

transaction as well as credit worthiness of the credit in the bank

account and since the assessee failed to discharge her burden to

prove the genuineness of the transaction as well as identity and

creditworthiness of the credit entry of Rs. 8,68,028/-, the same was

treated as unexplained income of the assessee withing the

meaning of section 68 of the Act.

4 ITA No. 218/JP/2023 Leela Devi Jain, Tonk vs. ITO, Tonk

before the ld. CIT(A). A propose to the grounds so raised by the

assessee the relevant findings of the ld. CIT(A) is reproduced here

in below:

“7.2 As mentioned in paragraph 7 of this appeal order, this office has issued several letters to file written submission, however, neither any adjournment was sought for nor was any written submission filed. The letters were issued through ITBA system at the mail ID provided by the appellant. It is verified that all the mails sent through the ITBA are delivered to his email Id, however, no reply is submitted in support of the grounds of appeal filed. From the above conduct of the appellant, it is evident that the appellant is no more interested in pursuing the appeal. Hon'ble Supreme Court in the case of CIT Vs B.N. Bhattacharjee and others [1979] 10 CTR 354 (SC) observed that preferring an appeal, means effectively pursuing it. Hon'ble M.P. High Court in the case of Estate of Late Tukojirao Holkar Vs CWT [1979] 223 ITR 480 (M.P.) dismissed the reference filed at the instance of the assessee for default and for not taking necessary steps. Considering the conduct of the assessee in the present circumstance, I am of the view that the assessee is not interested in pursuing the appeal. This view has been affirmed by Hon'ble ITAT Ahmedabad in case of Amitkumar H. Shah Vs. ACIT in ITA No. 2985/Ahd/2010 vide their order dated 31.12.2013, wherein following the order of ITAT Delhi Bench in the case of CIT Vs Multiplan India Pvt. Ltd., [1991] 38 ITD 320 (Del), ITAT has dismissed the appeal filed by the assessee for want of persuasion. Under these circumstances, the current appeal of the appellant is dismissed.”

the assessee is a house wife and she has not been given

appropriate opportunity in the appeal filed before the ld. CIT(A) and

even the ld. CIT(A) has not disposed off the appeal of the assessee

on merits. The ld. AR of the assessee also submitted that the

authorities below have not appreciated the facts in right perspective

5 ITA No. 218/JP/2023 Leela Devi Jain, Tonk vs. ITO, Tonk and have grossly erred in determining the income of the assessee. He also submitted that saving of house wife is also not considered

by the lower authorities and therefore, he has relying upon the following orders:-

• Virendra Singh Verma vs. ITO in ITA No. 962/JP/2019 dated 25.04.2022. • Sidharth Choudhary vs. ITO in ITA No. 890/DEL/2020 dated 19.01.2023. • DCIT vs. Trans Freight Containers Ltd. in ITA No. 2337/Mum/2016 dated 24.02.2017. • Hindustan Steel Ltd. v. State of Orissa (SC) (1972) 83 ITR 26. 6. The ld DR is heard who has relied on the findings of the lower

authorities and more particularly submitted that the assessee was given sufficient opportunity of being heard by the ld. CIT(A) and the assessee has not submitted the arguments on merits. The ld. DR

also submitted that if the matter is to be set a side then it may be sent back to the ld. AO so as to make the sufficient finding on facts by the ld. AO.

6 ITA No. 218/JP/2023 Leela Devi Jain, Tonk vs. ITO, Tonk 7. We have heard the rival contentions and perused the material

placed on record. We have also persuaded the decision relied

upon by both the parties. It is not disputed fact that the order of the

ld. CIT(A) is ex-party and the same is passed without dealing with

the merits of the case. The bench noted that the assessee is a

house wife she has deposited the cash on various dates in the

saving account maintained jointly with her husband. During the

proceeding before the lower authority the assessee has not

explained the source of cash deposited in to her bank account. We

also note that the submission of the assessee has not been dealt

with by the assessing officer so as to consider the savings of the

assessee, withdrawal out of salary of her husband lying with her

and the cash flow statement submitted by her why were not

appropriate is not dealt with by passing a speaking order.

Considering this peculiar circumstances argued before us we are of

the considered view that the assessing officer should hear the

assessee submission on merits after affording proper opportunity of

being hear and passed speaking order in the matter and therefore,

the matter is set a side to the file of the learned assessing officer.

At the same time the assessee is also directed to represent all the

facts before the assessing officer and should not ask for the

7 ITA No. 218/JP/2023 Leela Devi Jain, Tonk vs. ITO, Tonk adjournment on frivols grounds and is directed to participate in this

remand proceeding. At this stage we remand back the issue

without commenting upon the merits of the case and the ld. AO is

directed to complete the assessment in accordance with the law.

In the result, appeal of the assessee is allowed for statistical

purpose.

Order pronounced in the open Court on 14/06/2023 Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judcial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 14/06/2023 *Ganesh Kr. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Leela Devi Jain, Tonk 2. izR;FkhZ@ The Respondent- Income-tax Officer, Ward-Tonk, Rajasthan 3. vk;dj vk;qDr@ CIT vk;dj vk;qDr@ CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 5. xkMZ QkbZy@ Guard File { ITA No. 218/JP/2023} 6. vkns'kkuqlkj@ By order सहायक पंजीकार@Aेेज. त्महपेजतंत