THE ITO, WARD-2(5), BARODA vs. SHRI SATISHKUMAR OMPRAKASH PANDEY, BARODA

PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-

This Revenue’s appeal for A.Y. 2011-12, arises from order of the CIT(A)-5, Vadodara dated 05-02-2015, in proceedings under section 144 of the Income Tax Act, 1961; in short “the Act”.

I.T.A No. 1756/Ahd/2015 A.Y. 2011-12 Page No 2 “1. On the facts and in the circumstances of the case and in law, the order of the Ld. CIT(A) is perverse on facts & in law in so far as he failed to appreciate that there was no reason for the assessee not to produce evidences before Assessing Officer during the assessment proceeding and that acceptance of fresh evidence was without justification.

I.T.A No. 1756/Ahd/2015 A.Y. 2011-12 Page No 3 CIT(A) has allowed the appeal of the assessee by observing as under:- “4. 3. I have considered the submissions of the learned Authorized Representative and the order of the Assessing Officer. At the outset, it is seen that the appellant did not cooperate with the Assessing Officer during the assessment proceedings which compelled the Assessing Officer to pass order u/s 144. The Assessing Officer has also levied penalty u/s 271(1)(b) of the Act against which no appeal is filed by the assessee. Thus, the passing of order u/s 144 of the Act is fully justified. In appeal it is stated that the appellant was transferred to Surat and, therefore, could not file requisite details before the Assessing Officer. He filed Addl. Evidence before me which were forwarded to the Assessing Officer for verification. The Assessing Officer initiated enquiry but in unproductive manner. He misdirected himself and started probing the financial worth of the persons who paid cash to the appellant for purchase of policies of Future Generali India Life Insurance Company Limited with whom the assessee is employed during the year under consideration as agent. Though, the Assessing Officer asked the assessee to co-relate the dates of the alleged demand drafts/pay orders issued by the United Bank of India vis-a-vis the amounts debited from his account, he failed to appreciate that in fact each and every cash deposit in bank is followed by demand draft/pay order in favour of Future Generali India Life Insurance Company Limited which has acknowledged receipts of those demand draft/pay orders along with the agent's code number and policy numbers issued to the prospective buyers. The Assessing Officer had called several persons and examined them. None of them has denied payment cash to the appellant for buying policies of Future Generali India Life Insurance. Thus, no adverse inference was drawn by the Assessing Officer even during remand proceedings about the contention of the appellant that the source of cash deposits to his account are the prospective clients. The Assessing Officer may have doubts about the source of cash available with the clients but that is not the subject matter of appeal. It is also found that in most of the cases, the pay orders/bank drafts are issued by the bank on the same day on which cash is deposited by the appellant. Thus, from the detailed written submissions of the AR, Remand Report of the Assessing Officer, copies of the acknowledgements issued by Future Generali India Life Insurance to its clients, copies of the pay orders/bank drafts and copy of the bank statement of the appellant, it clearly transpires that the cash deposits of in his savings account No.1454010002592 maintained with United Bank of India, amounting to Rs.28,59,100/- are fully explained. In view of the detailed discussion above, the addition made by the Assessing Officer is directed to be deleted.”

I.T.A No. 1756/Ahd/2015 A.Y. 2011-12 Page No 4

I.T.A No. 1756/Ahd/2015 A.Y. 2011-12 Page No 5 Generali India Life Insurance Company Ltd. After considering the above, we observed that the assessment in his case was finalized u/s. 144 as the assessee had not submitted the required specific details before assessing officer in respect of cash deposit received from the clients for purchase of policies as stated supra in this order. Therefore, in the interest of justice, we considered it will be appropriate to restore this case to the file of the assessing officer to decide the matter relating to subject matter of the appeal afresh after affording adequate opportunities to the assessee .