TMI Blog2022 (4) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... be in the interest of proper adjudication of the issues at hand, the same are hereby admitted and the matter is set-aside to the file of AO to examine the same and decide the matter as per law after providing reasonable opportunity to the assessee as the earlier order disputed is also passed u/s 144 and therefore we deem it fit to remand it back to the file of AO. The impugned order passed by the Lower authority is hereby quashed and set aside. The appeal is remanded to the AO, who shall make an endeavour to dispose of the entire appeal in accordance with law - Appeal of the assessee is allowed for statistical purposes. - ITA. No. 245/JP/2021 - - - Dated:- 30-3-2022 - Dr. S. Seethalakshmi, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Shri Kranti Mehta (C.A.) For the Revenue : Smt. Runi Pal (Addl. CIT) ORDER PER: DR. S. SEETHALAKSHMI, J.M. This is an appeal filed by the assessee directed against the order of the National Faceless Appeal Centre, Delhi (hereinafter called as NFAC ) dated 12.08.2021 penalty of ₹ 3,87,000/- levied u/s. 271 (1) (c) of the Income Tax Act, 1961 (in short the Act ) for the Assessment year 2017-18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issing the appeal in limine by mentioning that additional evidences cannot be produced without application under Rule 46A even when in the absence of service of notices, the impugned assessment order was completed u/s 144. He further erred in not appreciating the fact that the amount of ₹ 900000/- was never deposited in the bank account of the appellant and the remaining amount of ₹ 330000/- deposited in bank was business income of proprietary concern of the appellant. Accordingly, the impugned addition of ₹ 1230000/- deserves to be deleted. 4. That the appellant prays to add or alter any ground of appeal at or before the time of hearing. 6. Brief facts of the case are that the assessee during the demonetization period, i.e. 09.11.2016 to 31.12.2016 has deposited cash in the bank accounts and no return of income was filed even issuance of notice u/s 142(1) on 12.03.2018. Therefore the case was picked for scrutiny. Thereafter a detailed query letter along with notice u/s 142(1) was issued on 14.11.2018 for filing reply by 20.11.2018 but no reply received from the assessee. Again notice u/s 142(1) was issued on 27.11.2018 for 30.11.2018 was also not compli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh was deposited to ₹ 12,30,000/- during the period under consideration. (2) It is submitted that the appellant is proprietor of Arpit Marbles, Jaipur By Pass Road, Madanganj, Kishangarh (Dist. Ajmer) which is carrying on the business of Marble and maintaining its regular books of account. An amount of ₹ 3,30,000/- was deposited in ICICI Bank Ltd., the source of which was from the regularly maintained books of account of the proprietary business of the appellant M/s Arpit Marbles. Copy of Capital A/c and Balance Sheet of the appellant for AY 2017-18 as well as Profit and Loss A/c and Balance Sheet of Arpit Marbles, Kishangarh are enclosed herewith for your kind perusal. (3) So lar as the amount of ₹ 9,00,000/- is concerned, it is submitted that the appellant is partner in Mohit Marble Industries, Kishangarh (Dist. Ajmer) and from the regularly kept books of account of this lirm, ₹ 9,00,000/- were deposited in United Commercial Bank (UCO Bank), Makrana Road, Kishangarh as detailed below- ₹ 5,00,000/- Cash deposited on 18.11.2016 ₹ 4,00,000/- Cash deposited on 01.12.2016 (4) Copy of Bank account and certificate dated 09.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the above submissions there was no opportunity/occasion available with appellant to produce necessary evidences before the ITO Ward 2(3), Alwar. Firstly, the ITO Ward 2(3), Alwar had no jurisdiction to issue notices to or pass assessment order of a person who is residing in District Ajmer. Secondly, the notices u/s 142(1) by the ITO were never served, notice u/s 144 was served after the assessment order was passed. The Faceless CIT (Appeals) has not decided these grounds. (2) 1 therefore, request your honour to kindly admit the additional evidences under Rule 29 of Income Tax Tribunal Rules since the appellant was prevented by sufficient cause from producing the evidences before the ITO Ward 2(3), Alwar and no sufficient opportunity was given to the appellant to adduce the evidences as narrated above. It is very humbly submitted that all these evidences are relevant to the grounds of appeal and go to the root of the case to determine the amount of deposits made in the bank. These evidences were submitted to The Faceless CIT (Appeals), but he did not consider the same on the technical ground of not filing application for accepting additional evidences. I theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned, in clauses (a), (b ), (c) and (d) of rule 46A(1) additional evidence can be adduced. Rule 46A itself contains the principles of natural justice. That being so, sub-rule (4) of rule 46A does not permit to accept any additional evidence in contravention of the provisions of sub-rules (2) and (3) of rule 46A. The appellate authority is not permitted to act whimsically while exercising the jurisdiction under rule 46A of the Rules. 14.3 In this regard, We have gone through the decisions of various High Courts in the cases : 1. [2006] 153 TAXMAN 31 (GUJ. ) High Court Of Gujarat N.B. Surti Family Trust Vs. Commissioner Of Income-Tax. 2. [2007] 162 Taxman 257 (Gau.) High Court Of Gauhati Commissioner Of Income- Tax Vs.Ranjit Kumar Choudhury. 3. [2018] 89 Taxmann.Com 126 (Allahabad) High Court Of Allahabad Dr. Prabhu Dayal Yadav Vs. Commissioner Of Income Tax. We noted from the following judgments, that considering the fact that these additional evidences which are now sought to be admitted would be in the interest of proper adjudication of the issues at hand, the same are hereby admitted and the matter is set-aside to the file of AO to examine the same and decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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