DURGA PRASAD CHAWARE, DURG,DURG vs. INCOME TAX OFFICER-1(4), BHILAI, DURG
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Income Tax Appellate Tribunal, RAIPUR BENCH “SMC”, RAIPUR
Before: SHRI RAVISH SOOD
आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 26.06.2023, which in turn arises from the order passed by the AO under Sec. 144/147 of the Income-tax Act, 1961 (in short ‘the Act’) dated 04.12.2018 for assessment year 2013-14. The assessee has assailed the impugned order on the following grounds of appeal:
“1) That order of CIT(A) is bad-in-law, illegal and void-ab-initio. 2) Without prejudice to ground no. 1, CIT(A) has erred in dismissing appeal by stating that no written submission was filed by the assessee whereas the assessee had duly submitted written submissions before him in support of his grounds of appeal on 18.06.2023 and then again on 23.06.2023. 3) Without prejudice to ground no. 1, CIT(A) has erred in dismissing appeal without deciding appeal on legal issues and merit of the case properly and judicially. 4) Without prejudice to ground no. 1, CIT(A) has erred in confirming addition of Rs.17,15,000/- u/s 68 only on the basis of transactions of cash deposits appearing in the bank passbook of the assessee despite the same being covered by the decision of jurisdictional hon'ble ITAT Raipur Bench in favor of the assessee. The assessee prays that the addition of Rs. 17,15,000/- be deleted. 5) Without prejudice to ground no. 1, CIT(A) has erred in confirming addition of Rs.17,15,000/- made by the AO by treating entire cash deposited in saving bank account as unexplained cash credit without considering the facts and circumstances of the case properly and judicially. The assessee prays that the addition of Rs.17,15,000/- be deleted. 6) The assessee reserves the right to add, amend, or alter/withdraw any ground/grounds of appeal at the time of hearing.”
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Based on the information that the assessee had made cash deposits of Rs.17,15,000/- in his savings bank account during the year under consideration but had not filed his return of income, the A.O. initiated proceedings u/s.147 of the Act. Notice u/s. 148 of the Act dated 09.03.2018 was issued to the assessee.
As the assessee, despite having been intimated about the hearing of the appeal, had failed to put up an appearance before the A.O; therefore, the latter was constrained to proceed with the matter after considering the material available on record. Observing that the assessee had failed to explain the source of the cash deposits of Rs.17,15,000/-, the A.O. added the same by treating it as unexplained cash credit u/s.69 (sic) of the Act. Accordingly, the A.O. vide his order passed u/s.144 r.w.s.147 of the Act dated 04.12.2018 assessed the income at Rs.17,15,000/-.
Aggrieved the assessee carried the matter in appeal before the CIT(Appeals). As the assessee failed to put up an appearance before the CIT(Appeals) on the various dates on which the same was fixed for hearing, viz. 01.03.2021, 24.03.2023, 09.06.2023 & 22.06.2023; therefore, the latter finding no infirmity in the view taken by the A.O upheld the addition of Rs.17,15,000/-, observing as under:
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“5.3. As regards, the cash credits appearing in the savings bank account of the appellant, the onus is solely on the appellant to establish the identity, genuineness and creditworthiness of the transactions. During the appellate proceedings also, the appellant has not furnished any evidence in support of the contention of the appellant to explain the source. Therefore, I do not find any reason to interfere with the findings of the AO. As the appellant has not established identity, genuineness and creditworthiness of the transactions with respect to the cash credits appearing in the savings account of the appellant, I am of the considered opinion that the AO has rightly added the said amount of Rs.17,15,000/- to the total income of the appellant. 5.4. However, it is stated that the addition has been made by the AO under Section 69 of the Act. In this regard, it is stated that the AO ought to have made addition u/sec.68 of the Act and not u/sec.69 of the Act. Therefore, the section for the addition is corrected in the appellate order as 68. Accordingly, the addition made, is hereby confirmed u/sec. 68 of the Act.”
The assessee, being aggrieved with the order of the CIT(Appeals), has carried the matter in appeal.
The assessee appellant had chosen to be represented by his “Written submissions” a/w documents, which evidence uploading of replies/documents in the course of proceedings before the CIT(Appeals). On a perusal of the documents above filed by the assessee appellant, it transpires that the assessee has filed a copy of “View Response to Notice ID 100063508047”, wherein it is stated as under :
“assessee has already filed reply dated 08.06.2023 along with twenty nine enclosures on 08.06.2023 in response to the hearing notice dt.01.06.2023 and copies of three acknowledgements o filing reply on 08.06.2023 and reply filed on 08.06.2023 are attached. Kindly go through the IT portal and do the needful.”
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Also, the assessee had filed a copy of “View Response to Notice ID 100063145951”, wherein it is mentioned as under:
“Reply dated 08.06.2023 along with nine enclosures out of total twenty nine enclosures due to limitation of number of attachments in IT portal, are attached.”
On a perusal of the documents above in the backdrop of “ground of appeal no. 1” raised by the assessee appellant before us, it transpires that he had tried to fortify his claim that the CIT(Appeals) had grossly erred in disposing the appeal without considering the substantial documentary evidence that was filed with him in the course of the hearing. The assessee claims that the CIT(Appeals), NFAC, had disposed of the appeal without considering his reply dated 08.06.2023 a/w. nine enclosures (out of twenty nine enclosures) that were placed on his record. Also, a perusal of the reply dated 23.06.2023, wherein referring to his earlier response dated 08.06.2023 (supra), the assessee had attached three acknowledgments evidencing filing of the same a/w the reply that he had earlier uploaded on 08.062023. Referring to the aforesaid facts, the assessee claims that the CIT(Appeals) had erred in disposing of the appeal without considering the documents that the assessee had filed on 08.06.2023 and 23.06.2023. Based on the aforesaid factual position, the assessee claims that the CIT(Appeals) had while disposing of the
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appeal, wrongly observed that the assessee had not filed any written submissions in the course of proceedings before him.
Per contra, the Ld. Departmental Representative (for short, ‘DR’) relied on the orders of the lower authorities. On being confronted with the fact that the CIT(Appeals) had failed to consider the “written submissions” that were filed by the assessee with him on 08.06.2023 a/w. enclosures, the Ld. DR fairly admitted the said factual position.
I have heard the ld. Authorized representatives of both the parties, perused the orders of the lower authorities and material available on record.
Admittedly, it is a matter of fact borne from the record that the assessee had neither complied with the notice issued u/s 148 of the Act, dated 09.03.2018; nor adhered to the notice(s) u/s 142(1)/letter dated 02.05.2018, 04.07.2018 and 17.10.2018, and had evaded both his participation in the assessment proceedings as well as furnishing of reply/submissions before the A.O. On appeal, it transpires from a perusal of the record that the assessee had complied with the notices on two occasions (out of four occasions), but as observed by the CIT(Appeals), he had not furnished any written submissions or documentary evidence to drive home his claim that no addition was called for in his case. Also, as observed by the CIT(Appeals), the assessee had failed to avail the final opportunity that was afforded to him to
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furnish written submissions/documentary evidence in support of his claim by 22.06.2023. On a perusal of the record, it transpires that due to the failure of the assessee to either put up an appearance or furnish written submissions/documentary evidence in support of his claim, the CIT(Appeals) was constrained to proceed with and dispose of the appeal based on the material available on record.
Be that as it may, it is brought to my notice by the assessee that he had uploaded his reply on 08.06.2023 a/w. twenty nine enclosures (nine enclosures were uploaded due to limitation on attachments on IT portal) with the CIT(Appeals). For the sake of clarity, the content of the letter mentioned above that was uploaded by the assessee with the CIT(Appeals) on 08.06.2023 is culled out as follows:
“Assessee has already filed reply dated 08.06.2023 along with twenty nine enclosures on 08.06.2023 in response to the hearing notice dt.01.06.2023 and copies of three acknowledgements o filing reply on 08.06.2023 and reply filed on 08.06.2023 are attached. Kindly go through the IT portal and do the needful.”
Apart from that, I find that the assessee had after that uploaded another letter dated 23.06.2023, wherein referring to his earlier reply dated 08.06.2023 (supra), he had attached three acknowledgments evidencing filing of the same a/w the reply that he had earlier uploaded. Contents of the aforesaid letter dated 23.06.2023 (supra) read as follows:
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“Reply dated 08.06.2023 along with nine enclosures out of total twenty nine enclosures due to limitation of number of attachments in IT portal, are attached.”
On a perusal of the order of the CIT(Appeals), I find that he had failed to take cognizance of the aforesaid reply a/w. enclosures uploaded by the assessee on two occasions, i.e, on 08.06.2023 and 23.06.2023. It is not so that the CIT(Appeals) had considered the replies a/w. twenty nine enclosures (nine enclosures uploaded) that the assessee filed before him.
Based on my observations above, I find substance in the assessee's claim that the replies a/w. enclosures that were filed by him on 08.06.2023 and 23.06.2023 had not been considered by the CIT(Appeals). In fact, the aforesaid letters dated 08.06.2023 and 23.06.2023 that were filed by the assessee a/w enclosures in the course of the proceedings before the CIT(Appeal), therein renders his observation that the assessee had not filed any written submissions/documentary evidence before him, as perverse. Considering the aforesaid facts, I am of the view that in the totality of the facts involved in the present appeal, the matter in all fairness requires to be restored to the file of the CIT(Appeals) with a direction to him to re-adjudicate the same after considering the aforesaid written submissions/documentary evidence that the assessee had filed before him on 08.06.2023 and 23.06.2023 and affording a reasonable opportunity of being heard to the assessee appellant.
9 Durga Prasad Chaware Vs. ITO-1(4), Bhilai ITA No. 271/RPR/2023
As I have restored the matter to the file of the CIT(Appeals) for re- adjudication, I refrain from adverting to and dealing with the other contentions/submissions filed by the assessee before me based on which he had both assailed the validity of the jurisdiction assumed by the A.O for framing the assessment, as well as the additions made in the backdrop of the merits of the case, which, the assessee would remain at liberty to raise before the CIT(Appeals) in the course of the set-aside proceedings.
In the result, the assessee's appeal is allowed for statistical purposes.
Order pronounced in open court on 15th day of September, 2023. Sd/- (रवीश सूद /RAVISH SOOD) �या�यक सद�य/JUDICIAL MEMBER रायपुर/ RAIPUR ; �दनांक / Dated : 15th September, 2023. ***#SB आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant. 2. ��यथ� / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G) 4. The Pr. CIT-1, Raipur (C.G) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण,रायपुर ब�च, रायपुर / DR, ITAT, Raipur Bench, Raipur. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, // True Copy // �नजी स�चव / Private Secretary आयकर अपील�य अ�धकरण, रायपुर / ITAT, Raipur.
