SHRI DAWARKA DASS,JALALABAD ( W) vs. INCOME TAX OFFICER WARD-2 (4), ABOHAR
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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
Per Dr. M. L. Meena, AM:
This captioned appeal has been filed by the assessee against the order of the ld. CIT(A)/National Faceless Appeal Centre (NFAC), Delhi dated 19.07.2023 in respect of Assessment Year 2012-13.
2 ITA No. 258/Asr/2023 Dawaraka Dass v. ITO
The assessee has raised the following grounds of appeal:
“1. That the ld. CIT(A) National Faceless Appeal Centre has erred in confirming the addition of Rs.1485100 made by the AO by invoking the provisions of section 69A.
ThattheId.CIT(A) National Faceless Appeal Centre has erred in holding that no confirmation letters from persons who had advanced the money to assessee for purchase of immovable property was submitted ignoring the fact that the assessee has filed Affidavit of all such persons duly sworn and notarized, which has more authenticity then the confirmatory letters, before AO as well as CIT(A).
That the ld.CIT(A) as well as AO had erred in ignoring the bank statement submitted by persons who had advanced money to assessee justifying the source of payment.
That the ld. CIT(A) National Faceless Appeal Centre has erred in summarily rejecting the submissions made by the assessee without allowing any opportunity to the assessee.
That the ld. CIT(A) National Faceless Appeal Centre has erred in accepting the order of AO on the ground that opening cash in hand shown in Fund Flow Statement of Rs.364900 was not correct.
That the ld. CIT(A) National Faceless Appeal Centre has erred in ignoring the submissions of the assessee that the AO had made order in haste without giving proper opportunity to the assessee.
That the order framed by CIT(A) National Faceless Appeal Centre is bad in law and on facts.
That the appellant craves leave to add or amend the ground of appeal before the appeal is heard and disposed off.”
Apropos ground nos. 4 & 5, the ld. counsel for the assessee has
challenged the order of the ld. CIT(A)/NFAC summarily rejecting the appeal
3 ITA No. 258/Asr/2023 Dawaraka Dass v. ITO of the assessee by ignoring the submissions made by assessee before the
AO without giving proper opportunity of being heard. The counsel has
argued that the ld. CIT(A) had erred in holding that no confirmation letters
from the persons who had advanced the money to the assessee for
purchase of immovable property was submitted, ignoring the fact that the
assessee has filed an affidavit of all persons duly sworn and notarized, and
confirmation letter before the AO as well as CIT(A) which has more
authenticity. He prayed that the matter may be remanded back to the file of
the assessing officer to pass denovo assessment order after granting
adequate opportunity of being heard to the assessee after considering the
documentary evidence filed on record including the affidavit of the persons.
Per Contra, the learned additional CIT (DR) has no objection to the
request of the council of the assessee.
We have heard both the sides, perused record, written submission
and impugned orders. Admittedly, the appellant has submitted the
Affidavits from the persons who have paid the amounts for purchase of plot
along with the bank statement. However, the Ld. CIT(A) rejected the same
bank statement and affidavits merely stating that it does not justify the
creditworthiness/genuineness of the transactions without rebutting the
4 ITA No. 258/Asr/2023 Dawaraka Dass v. ITO contention of the appellant by disproving the authenticity of the aforesaid
documentary evidence by bringing on record any collaborative material
evidence.
It is seen that neither the AO nor the Ld. CIT(A) has addressed the
relevant issue on merits of the case that the assessee had explained the
source of investment in purchase of plot with documentary evidence
amounting to of Rs.14,85,100/- and the AO made addition by invoking the
provisions of section 69A. The observation of the Ld. CIT(A) in holding that
no confirmation letters were filed from persons who had advanced the
money to assessee for purchase of immovable property are factually
incorrect. In our view, the Affidavit and bank statement of all such persons
duly sworn and notarized, were certainly authentic to the confirmatory
letters to justify source of income, unless disproved by the AO or CIT(A).
Thus, the decision of ld. CIT(A) National Faceless Appeal Centre in
summarily rejecting the submissions made by the assessee without
allowing any opportunity to the assessee is not justified.
Under the fact and circumstances of the case, in the present case,
the authorities below ought to have disproved the claim of the assessee by
rebutting appellants contention with support of corroborative documentary
5 ITA No. 258/Asr/2023 Dawaraka Dass v. ITO evidences on record after granting an adequate opportunity of being heard.
The Hon’ble Supreme Court of India in the case of Tin Box Company vs.
CIT reported in 249 ITR 216 in which their Lordships of Supreme Court of
India observed as under:
“Assessment - Opportunity of being heard - Setting aside of assessment - Assessment order must be made after the assessee has been given reasonable opportunity of setting out his case - Same not done - Fact that the assessee could have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is assessment order that counts — Assessment order set aside and matter remanded to assessing authority for fresh consideration.”
Accordingly, in view of the principles of natural justice, we consider it
deem fit to remand back the matter to the file of the Ld. AO to pass de novo
assessment after considering the written submission and evidences filed on
record and may be filed before him during the fresh Assessment
Proceedings after granting sufficient opportunity of being heard to the
assessee. The AO is directed to issue a Show Cause Notice before
passing a reasoned order in accordance with law.
6 ITA No. 258/Asr/2023 Dawaraka Dass v. ITO 9. Accordingly, the Assessment order is set aside and matter is
remanded back to the assessing authority to pass de novo assessment as
per law.
In the result, the appeal of the assessee is allowed for statistical
purposes.
Order pronounced in the open court on 30.10.2023
Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS* Copy of the order forwarded to: (1)The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy By Order
