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Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: SHRI R.P. TOLANI, VICE- & SHRI AMARJIT SINGH
PER R.P. TOLANI, VICE-PRESIDENT :- These are three Revenue’s appeals and one assessee’s Cross-objection. These three Revenue’s appeals are directed against the order of the CIT(A), Gandhinagar dated 14.12.2012 for AY 2008-09 and a common order of the CIT(A), Gandhinagar dated 25.08.2015 for AYs 2009-10 and 2010-11 respectively. The Cross-objection filed by the assessee is directed against the order of the CIT(A), Gandhinagar dated 14.12.2012 for AY 2008-09. The assessee being same, all these appeals/CO are disposed of by this common order for the sake of convenience.
ITA Nos. 525 of 13, 3169, 3170/Ahd/2015 & CO 124/Ahd/2013 ITO vs. Yogeshkumar N Patel AY : 2008-09, 2009-10 & 2010-11 2 2. At the outset, we observe that the assessee has not been appearing before the Tribunal in the several earlier hearings. For hearing on 23.05.2017, the notice was served on the address of the assessee and the same was received by the father of the assessee Shri Narendrabhai Hargovandas Patel, which is on record. The ld. Departmental Representative contends that the assessee has been habitually not appearing in these Revenue’s appeals; therefore, these appeals may be decided ex- parte, qua the assessee, after considering the material available on record and contentions of ld. Departmental Representative.
We find merit in the contentions of the ld. Departmental Representative. Due to non-appearance of assessee before the Tribunal inspite of service of notice, we are left with no choice but to decide the appeal ex-parte on the basis of material available on record and arguments of ld. Departmental Representative.
The common ground raised in Revenue’s appeals for all three assessment years is as under:-
On the facts and circumstances of the case, the CIT(A) has erred in law and on facts in deleting the additions made by the AO on account of unexplained cash credits; therefore, the order of the Assessing Officer is required to be upheld. The additions made by the AO are as under:- AY 2008-09 - Rs.6,17,56,018/- AY 2009-10 - Rs.8,80,77,088/- AY 2010-11 - Rs.1,14,08,750/-
The assessee has raised cross-objection for AY 2008-09, which reads as under:-
“The learned CIT(A) erred in law in determining the estimated income at 2% as against 0.25% as afford by assessee without substantiating any reasons.”
ITA Nos. 525 of 13, 3169, 3170/Ahd/2015 & CO 124/Ahd/2013 ITO vs. Yogeshkumar N Patel AY : 2008-09, 2009-10 & 2010-11 3 6. At the time of hearing, ld. Departmental Representative contends that the ld. CIT(A) has granted substantial relief without considering the pertinent aspects necessary for proper adjudication of appeals which are as under:- “(1) Bank account is in the name of assessee. Onus is on him to explain source thereof or details of user of such bank accounts.
(2) There is no proof that the assessee was engaged in any commission business or in the business of issuing bogus bills or was an entry provider and thus reliance by CIT(A) on this self serving statement/submission is misplaced. (3) CIT(A) has not considered cash deposit at Rs. 23,36,000/- in Bank and source thereof. (4) CIT(A) has shifted the onus to verify source of deposits on A.O. which is not proper. (5) Destination of cash withdrawal is not provided by assessee and thus payments thereof to issuer of cheque as believed by CIT(A) is improper and without any basis. Further, there is no evidence regarding purchases or expense though sales were made and some purchasers confirmed receipt of material as per bills. (6) Parties from whom cheque received, the details thereof were furnished by assessee with no confirmation. Further, these do not correspond to deposit amounts in bank eg first entry of Rs. 1 crore deposit on 21.9.2007 does not tally with any of the party. This is not considered by CIT(A). (7) A.O. could not locate them (parties) when verified on test check method. He failed to consider the report of ITI dated 29.12.2011 that on making personal enquiries of 4 parties, the same were not located as discussed in assessment order on Page 11 of Assessment order.”
We have heard the ld. Departmental Representative and perused the material available on record. In our considered view, ld. CIT(A) has not appreciated the issues raised by the ld. CIT-DR as mentioned above. Due to the non-appearance of the assessee in the proceedings, we are not in a position to ascertain the relevant facts and clarify the discrepancies mentioned by the ld. CIT-DR. Besides, they will require fresh re-look on the
ITA Nos. 525 of 13, 3169, 3170/Ahd/2015 & CO 124/Ahd/2013 ITO vs. Yogeshkumar N Patel AY : 2008-09, 2009-10 & 2010-11 4 facts and documents available on record. In consideration of all the above facts and circumstances, in the interest of justice, we set aside the issues raised in the Revenue’s appeals and the assessee’s Cross-Objection back to the file of the Assessing Officer to re-decide the issues after giving the assessee an opportunity of being heard.
In the result, all three appeals filed by the Revenue and the Cross- Objection filed by the assessee are allowed for statistical purposes.
Order pronounced in the Court on 23rd May, 2017 at Ahmedabad.
Sd/- Sd/-
(AMARJIT SINGH) (R.P. TOLANI) ACCOUNTANT MEMBER VICE-PRESIDENT (AZ) Ahmedabad; Dated 23/05/2017 *Biju T., Sr PS
आदेश क� �ितिलिप अ�ेिषत/Copy of the Order forwarded to : आदेश क� �ितिलिप अ�ेिषत आदेश क� �ितिलिप अ�ेिषत आदेश क� �ितिलिप अ�ेिषत 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबंिधत आयकर आयु� / Concerned CIT आयकर आयु�(अपील) / The CIT(A) 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file.
देशानुसार/ BY ORDER, आदेशानुसार देशानुसार देशानुसार