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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR.
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
ORDER Per:Anikesh Banerjee, JM:
The instant appeal of the assessee is directed against the order of the ld.
Commissioner of Income Tax (Appeal), NFAC, Delhi, [in brevity the ‘CIT (A)’] bearing appeal DIN & Order No. ITBA/NFAC/S/250/2021-22/1038064915(1), date of order 23.12.2021, the order passed u/s 250of the Income Tax Act 1961, [in brevity the Act] for A.Y. 2017-18.The impugned order was emanated from the order of the ld. Income Tax Officer Ward, Udhampur, (in brevity the AO) order passed u/s 144 of the Act date of order 31.10.2019. The assessee took the following grounds which are extracted as below:
1. That the orders passed by the Assessing Officer and worthy Commissioner of Income Tax (Appeals) are both against the facts of the case and are untenable under the law.
2. That no reasonable and proper opportunity of being heard was allowed before passing the said order. As such the assessment order passed by the Income Tax Officer, Ward, Udhampur is bad in the eyes of law and the order passed by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (Delhi) thereby confirming the same is also bad in the eyes of law and the same is liable to be cancelled.
3. That the ex-parte order passed by the CIT(A) is illegal, invalid and void abinitio and the same is liable to be cancelled. The CIT(A) has grossly erred in confirming the addition of Rs.3,71,111/- on account of bank deposits which were out of business transactions and the same were transferred to Airtel Limited and was not the income of the assessee.
That the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (Delhi) did not apply his mind and did not appreciate the facts of the case and there was no earthly reason for treating the same as income of the assessee. As such the addition confirmed by the CIT(A) at Rs.3,71,111/- which was made by the A.O. may kindly be deleted. Alternatively the addition made is very high & excessive.
5. That any other ground of appeal which may be argued at the time of hearing of the appeal.”
Assessee has filed an application for condonation of delay of 172 days wherein, assessee stated that ld. counsel’s brother was suffered from cancer and went to Delhi for diagnosed. The ld. Sr. DR has not made any strong objection for condonation of delay. Therefore, the delay of 172 days is condoned.
Brief fact of the case is that the assessee is a dealer of M/s Airtel Ltd. and selling the SIM card on behalf of the company. During Financial Year 2016-17 assessee deposited cash in 03 (three) bank accounts of Devika Urban Co-operative Bank total amount of Rs.30,69,780/-. Out of the total amount of Rs.26,98,669/- was transferred to M/s Airtel Ltd. during demonetisation period. The difference amount of Rs.3,71,111/- was added back with the total income of the assessee for unexplained income u/s 69 of the Act. The assessee filed an appeal before the ld.CIT(A) and the ld. CIT(A) upheld the order of the ld. AO. Being aggrieved assessee filed an appeal before us.
4. During hearing the counsel of the assessee has submitted the paper book before the bench. In fact, the assessee was unable to substantiate its claim and to submit documents before any of the lower authorities. As per the claim of the assessee that the same amount of Rs.3,71,111/- is the commission for collection of SIM card sales. After deducting the profit part from gross amount the rest amount was transferred to the Airtel. But the amount of cash was deposited in the demonetisation period which was never be explained before any of the lower authority. In persuasion of the argument the ld. counsel submitted the bank account of the assessee’s paper book page nos. 4 to 56 and the copy of the account statement in the books of Airtel for A.Y. 2016-17 APB page nos. 83 to 119.
The ld. Sr. DR vehemently argued & has not able to bring any contradictory fact against the submission of the assessee. We find that the assessee had received the amount on behalf of the Airtel and after deducting the commission the rest amount was paid to party. But the entire document was not submitted before any of the lower authorities for substantiate its claim. In our considered view, we set aside the case to the ld. AO for verification de novo.Needless to say, that the AO shall provide proper and adequate opportunity of being heard to the assessee in set aside proceedings. The evidence/explanations submitted by assessee in its defence shall be admitted by AO, and adjudicated by AO on merits in accordance with law. We order accordingly.
In the result, the appeal of the assessee bearing is allowed for statistical purposes.
Order pronounced in the open court on 26.12.2022