Foram Hemal Dedhia, Mumbai vs Assessee

/Assessee by : Dr. Prakash Jha /Revenue by : Shri Pawan Kumar Beerla

Date of Hearing : 12/01/2015 Date of Pronouncement : 25/02/2015 ORDER

PER R.C.SHARMA (A.M.) :

This is an appeal filed by the assessee against the order of CIT(A)

dated 31-7-2012, for the assessment year 2009-10, in the matter of order

passed u/s.143(3) of the I.T.Act.

2. As per office note, there is a delay of two days in filing the appeal.

The assessee has filed application for condonation of delay along with

affidavit. Considering the application of the assessee for delay in filing the

present appeal, we condone the delay.

3. In this appeal the assessee is aggrieved by the addition confirmed

by the CIT(A) u/s.68 of the I.T.Act.

2 ITA No.6596/2012

4. Rival contentions have been heard and record perused. Facts of

the case in brief are that the assessee derives income from stitching

business and return showing income of Rs.1,76,130/- was filed. During

assessment proceedings only partial details were furnished in response to

the questionnaire and no one attended on 21/12/2011 i.e on the date of

hearing and hence the AO completed the assessment on the basis of

material available on record. From the copy of the bank statement

submitted by assessee it was noted that the appellant deposited cash to

the tune of Rs.24,61,800/- in saving bank account No.017050101113

COSMOS Cooperative bank, Vile Parle Branch standing in the name of

appellant jointly with Hemal B Dedhia and Rs.30,00,000 1 - in saving bank

account no.0170501038261 standing in the joint names of appellant with

Pinak B Dedhia at COSMOS Cooperative bank, Vile Parle Branch. Since

the assessee did not explain the source of cash deposits in the bank a/c

totaling to Rs 54,61,800/-, the AO added the same as unexplained income

u/s 68.

5. At the outset, ld. AR submitted that in case of other family members

of the assessee who were joint holder of the very same bank account

wherein amount was found to be deposited and with reference to which

additions were made by the AO u/s.68, were restored by the tribunal to

the file of AO vide order dated 28-2-2014 and 12-8-2014.

6. We have heard both the parties and perused the orders of the

Revenue Authorities as well as the cited order of the Tribunal. On perusal

of the said order of the Tribunal dated 28-2-2014, we find para 10 is

relevant in this regard and for the sake of completeness of this order the

said para is reproduced here which reads as under: 3 ITA No.6596/2012

"10. From the orders passed by the Id CIT(A), we notice that the first appellate authority has proceeded to decide the issues after considering the submissions made by the assessee. It is not known as to whether the first appellate authority did call for the details relating to the loan transactions of earlier years or not. Similarly it is not known as to whether the Assessing Officer also did call for such kind of details. Hence, we find merit in the claim of the assessees that they did not get sufficient opportunities to substantiate their submissions. Further, we notice that the Ld CIT(A) has proceeded to adjudicate the issue by making certain observations about the failure of the assessee to furnish the details and the said observations are seriously disputed by the Ld AR. Further, the very fact that the assessees have filed copies of the returns of income filed for earlier years as additional evidences would show that they were not furnished before the AO during the course of assessment proceedings. Even though, the Ld DR contends that all those documents have been examined by the Ld CIT(A), yet the fact remains that the ld CIT(A) has made certain presumptions before proceeding to adjudicate the issues and the said presumption entertained by the ld.CIT(A) is being questioned by the assessees. Under these circumstances, in the interest of natural justice, we are of the view that the entire matter needs to be adjudicated afresh at the end of the Assessing Officer. Accordingly, we set aside the orders passed by the Ld CIT(A) in both the cases, insofar as they relate to the additions confirmed by him and restore the same to the file of the Assessing Officer for fresh examination. The AO is directed to examine the issues afresh after affording necessary opportunity of being heard and take appropriate decision in accordance with the law."

7. Considering the above, we are of the opinion that the issue under

consideration should be set aside to the file of the AO for fresh

adjudication. Accordingly, grounds raised by the assessee are allowed for

statistical purposes.

8. Before parting with the matter, we direct the assessee to appear

before the AO within a period of one month from the date of issue of this

order and file the evidence before AO regarding source of funds

deposited in the bank account, and to cooperate the AO in all respect for

early completion of the assessment. In case of any failure on the part of

the assessee, the AO will be at a liberty to pass necessary order as per

materials placed on record. We direct accordingly. 4 ITA No.6596/2012

9. In the result, appeal of the assessee is allowed in part for

statistical purposes.

Order pronounced in the open court on this 25th Feb.2015.

Sd/- Sd/- ( ) ( ) (VIVEK VARMA) (R.C.SHARMA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER Mumbai; Dated 25/02/2015 /pkm, PS

Copy of the Order forwarded to : 1. / The Appellant 2. / The Respondent. 3. / The CIT(A), Mumbai. / BY ORDER, 4. / CIT 5. / DR, ITAT, Mumbai

6. Guard file.

//True Copy// (Asstt. Registrar) / ITAT, Mumbai