RAZAK ISMAILBHAI DODAPOTRA,,JAMNAGAR vs. THE INCOME TAX OFFICER, WARD-3(5), , JAMNAGAR

This assessee’s appeal for A.Y. 2009-10, arises from order of the CIT(A), Jamnagar dated 22-06-2018, in proceedings under section 250 of the Income Tax Act, 1961; in short “the Act”.

I have not escaped any Income for the said A.Y. 2009 - 10. I have not filed my income tax return for the A.Y. 2009 - 10 as my income was below the taxable limit for the said assessment year. My main source of income was from Jobwork and I had share transaction during the A.Y. 2009 - 10 in which there was a Short Term Capital Loss.

The brief facts of the case are that during the course of assessment, the assessing officer observed that there was a cash deposit of � 17,65,609/- in the savings bank account of the assessee. The assessing officer made an addition in respect of the aforesaid cash deposit as the assessee’s unexplained income, in the order passed ex parte u/s 144 of the Act.

In appeal before Ld. CIT(Appeals), the assessee challenged the assessment order on the ground that same had been received by the assessee beyond the due stipulated date and accordingly, the assessment order was barred by limitation. Secondly, the assessee requested that this is a fit case for filing of additional evidence under Rule 46A since the assessment order was passed u/s 144 of the Act and the assessee did not get adequate opportunity to represent his case on merits and adduce evidence to show the genuineness of the aforesaid transaction. Thirdly, the assessee submitted that the assessee had shifted from the aforesaid address to which the notices had been issued by the assessing officer and accordingly, this was the reason Page No 4 Razak Ismailbhai Dodapotra vs. ITO why he could not cause appearance before the assessing officer during the course of assessment proceedings.

The Ld. CIT(Appeals) dismissed all the aforesaid contentions raised by the assessee and also did not allow the assessee to produce additional evidence under Rule 46A on the ground that the assessing officer had given adequate opportunity to the assessee to represent his case on merits and file relevant details/evidence in support of the aforesaid transaction, however, the assessee has not been able to explain the circumstances which prevented him to file the aforesaid details during the course of assessment proceedings. Accordingly, the Ld. CIT(Appeals) confirmed the additions in the hands of the assessee.

The assessee is in appeal before us against the aforesaid additions confirmed by Ld. CIT(Appeals). At the outset, the counsel for the assessee submitted that there was no mala fide intention on the part of the assessee in causing non-appearance before the assessing officer during the course of assessment proceedings. However, despite the same, Ld. CIT(Appeals) erred in fact and in law, in not permitting the assessee to produce additional evidence in order to prove the genuineness of the transaction in terms of Rule 46A of the Income Tax Rules. In response, the Ld. DR placed reliance on the observations made by the Ld. CIT(Appeals) and the assessing officer in their respective orders.

We have heard the rival contentions and perused the material on record. We are of the considered view that in the instant facts, Ld. Page No 5 Razak Ismailbhai Dodapotra vs. ITO CIT(Appeals) should have permitted the assessee to place on record the requisite material/evidence in support of the merits of the case under Rule 46A of the IT Rules. Therefore, in our considered view, in the interest of justice, the matter is being restored to the file of Ld. CIT(Appeals), so as to allow the assessee to present his case on merits and to produce supporting evidence in support of his case. In result, the appeal of the assessee is a restored to the file of Ld. CIT(Appeals) with the above directions.

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