Rahul Mittal, Lucknow vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH "A", LUCKNOW

BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER

ITA Nos.327 & 328/LKW/2013 Assessment Years:2005-06 & 2008-09

Rahul Mithal v. ACIT Lucknow Range III, Lucknow PAN:AFYPM6068F (Appellant) (Respondent)

Appellant by: Shri. Yogesh Agarwal, Advocate Respondent by: Shri. Alok Mitra, D.R. Date of hearing: 15 07 2014 Date of pronouncement: 21 07 2014

ORDER

PER SUNIL KUMAR YADAV:

These appeals are preferred by the assessee against the respective order of the ld. CIT(A) almost on common grounds, which are as under:-

GROUNDS IN I.T.A. NO.327/LKW/2013:

I. The Learned Commissioner of Income Tax (Appeals)-I, Lucknow [here-in-after referred to as the Ld. CIT (A)'s] erred on facts and in law in confirming the order of the A.O. and in not affording any opportunity to the Appellant to have its say or make necessary compliance of the reasons relied upon him while passing the present order.

II. While passing the present order the Ld. CIT(A)'s grossly erred on facts and in law in not affording opportunity to the appellant to furnish the documents and evidences in support of its contention more so on account of the fact that the appellant was undergoing treatment in Mumbai as he was suffering from chronic kidney disease coupled with pancreatic & sepsis and

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was thus prevented by sufficient cause in not providing the necessary details and documents or appear personally to adduce evidence.

Without Prejudice to Ground No. I taken above:-

III. The Ld. CIT (A)'s erred on facts and in law in conforming the addition of Rs.2,33,302/- on account of payment of credit card and in not accepting the source of payment being reimbursement from the employer and payments made by self from funds available with him and thus the addition so confirmed only on notions and presumptions may kindly be ordered to be deleted.

IV. The Ld. CIT (A)'s further erred on facts and in law in confirming the addition of Rs.50,000/- as alleged unexplained cash deposit in bank account which such money was deposited from out of the maturity of the NSC's which such explanation was duly given before the AO himself but documentary evidence could not furnished only due to the indifferent health of the appellant and thus the addition so sustained may kindly be ordered to be deleted.

V. The Ld. CIT (A)'s grossly erred on facts and in law in confirming the addition of Rs.6,60,120/- as alleged credit entry in bank account without appreciating the fact that the same was from out of personal loan taken from Kotak of Rs.1,90,120/-, sale of car Rs.4,01,000/- and maturity of LIC Policy Rs.69,000/- and thus to presume that the same represents unexplained money is wholly erroneous on the facts of the case and thus the addition sustained on whims and fancies may kindly be ordered to be deleted. VI. The Ld. CIT(A)'s further erred on facts and in law in not giving any finding on the interest so charged u/s 234A, 234B & 234D by the AO in the assessment order and in holding that the same is consequential.

VII. The additions so confirmed are highly excessive, contrary to facts, laws and principles of natural justice and fair-play and thus may kindly be ordered to be quashed/annulled. VIII. That, the Ld. CIT (A)'s did not afford the appellant any proper or sufficient opportunity to have its say or make necessary compliance of the reasons relied upon by him in confirming the

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additions and thus the order so passed without affording adequate opportunity may kindly be ordered to be quashed.

GROUNDS IN I.T.A. NO.328/LKW/2013:

I. The Learned Commissioner of Income Tax (Appeals)-I, Lucknow [here-in-after referred to as the Ld. CIT (A)'s] erred on facts and in law in confirming the order of the A.O. and in not affording any opportunity to the Appellant to have its say or make necessary compliance of the reasons relied upon him while passing the present order.

II. While passing the present order the Ld. CIT(A)'s grossly erred on facts and in law in not affording opportunity to the appellant to furnish the documents and evidences in support of its contention more so on account of the fact that the appellant was undergoing treatment in Mumbai as he was suffering from chronic kidney disease coupled with pancreatic & sepsis and was thus prevented by sufficient cause in not providing the necessary details and documents or appear personally to adduce evidence.

Without Prejudice to Ground No. I taken above:-

III. The Ld. CIT (A)'s erred on facts and in law in conforming the addition of Rs.28,164/- being deduction claimed on account of interest on loans and bank advances from out of the income disclosed under the head other sources as the appellant could not substantiate the claim only on account of his indifferent health and indisposition and thus the addition so confirmed may kindly be ordered to be allowed.

IV. The Ld. CIT (A)'s further grossly erred on facts and in law in making an addition of Rs.9,09,269/- on account of payment of credit card and in not accepting the source of payment being reimbursement from the employer and payments made by self from funds available with him and thus the addition so confirmed only on notions and presumptions may kindly be ordered to be deleted.

V. The Ld. CIT(A)'s further erred on facts and in law in not giving any finding on the interest so charged u/s 234B by the AO in

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the assessment order and in holding that the same is consequential.

VI. The additions so confirmed are highly excessive, contrary to facts, laws and principles of natural justice and fair-play and thus may kindly be ordered to be quashed/annulled.

VII. That, the Ld. CIT (A)'s did not afford the appellant any proper or sufficient opportunity to have its say or make necessary compliance of the reasons relied upon by him in confirming the additions and thus the order so passed without affording adequate opportunity may kindly be ordered to be quashed.

2. During the course of hearing of the appeals, the ld. counsel for the assessee has invited our attention that the ld. CIT(A) has dismissed the appeals ex-parte without affording proper opportunity of being heard to the assessee. The ld. counsel for the assessee has further invited our attention to the assessment order with the submission that the additions were made by the Assessing Officer on account of certain credit entries found in the bank account. Certain cash deposits in the bank and credit card payments were also doubted by the Assessing Officer. The assessee could not place relevant evidence before the Assessing Officer. Though he intended to place the same before the ld. CIT(A), but the ld. CIT(A) has dismissed the appeals ex-parte without affording opportunity of being heard to the assessee. The ld. counsel for the assessee has placed enormous evidence before us to explain the payment through credit cards, bank deposits and credit entries found in the bank account with the submission that in the interest of justice, the matter may be remanded back to the Assessing Officer for re-adjudication of the issues in the light of evidence filed before the Tribunal.

3. The ld. D.R. has placed reliance upon the order of the ld. CIT(A). He, however, agreed that the issues are required to be adjudicated in the light of evidence filed before the Tribunal.

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4. Having carefully examined the orders of the lower authorities and the documents placed before us in the light of rival submissions, we find that the assessee has filed enormous evidence in order to explain the payments through credit card, cash deposits in the bank and credit entries found in the bank account. All these materials were not available before the Assessing Officer while making addition on the impugned issues. The ld. CIT(A) could have examined these issues after affording opportunity of being heard to the assessee, but he has disposed of the appeals ex-parte and dismissed the same. We have carefully examined the detailed evidence filed before us with regard to the payments through credit card, cash deposits in the bank and credit entries found in the bank account, but all these documents require proper verification by the Assessing Officer. We, therefore, in the interest of justice, set aside the orders of the ld. CIT(A) and restore the matter to the file of the Assessing Officer with a direction to re-adjudicate the issues afresh in the light of evidence filed before the Tribunal after affording an opportunity of being heard to the assessee.

5. In the result, appeals of the assessee are allowed for statistical purposes.

Order pronounced in the open court on 21.7.2014.

Sd/- Sd/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER

DATED:21st July, 2014 JJ:1507

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Copy forwarded to:

1. Appellant

2. Respondent

3. CIT(A)

4. CIT

5. DR Assistant Registrar

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