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TMI Blog2022 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... el truth, and the matter is required to be restored to AO for denovo assessment , after making proper verification . Thus, the matter is required to be set aside and restored to the file of the AO for denovo assessment by the AO, after giving proper opportunity of being heard to the assessee. The appeal of the assessee is allowed for statistical purposes - ITA No. 249/VNS/2019 - - - Dated:- 9-11-2022 - Shri Vijay Pal Rao, Judicial Member And Shri Ramit Kochar, Accountant Member For the Assessee : None For the Revenue : Shri A.K. Singh, Sr. DR ORDER PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: This appeal, filed by assessee, being ITA No.249/VNS/2019, is directed against the appellate order dated 12.07.2019 passed by learned Commissioner of Income Tax(Appeals), Gorakhpur (hereinafter called the CIT(A) ) in Appeal No. CIT(A)/GKP/2017-18, for assessment year (ay) 2009-10, the appellate proceedings had arisen before Learned CIT(A) from assessment order dated 21.12.2016 passed by learned Assessing Officer (hereinafter called the AO ) under Section 144/147 of the Income-tax Act, 1961 (hereinafter called the Act ). We have heard both the parties th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.04.2008 and Rs. 40,000/- on 09.02.2009. The AO further observed that the assessee has received saving bank interest of Rs. 6,823/- on the above saving bank account. The AO observed that the assessee had admitted before the learned ADIT (Inv.), Gorakhpur that he had never filed return of income. The AO verified the records with its office, and observed that the assessee has not filed his return of income for the assessment year 2009-10. The AO recorded reasons and obtained necessary sanction / approval from ld. Principal CIT, Gorakhpur and notice dated 17.03.2016 u/s 148 of the 1961 Act was issued by the AO, which was claimed by the AO to have been duly served on the assessee , on 28.03.2016 , requiring assessee to file return of income for ay: 2009-10. The assessee, however, did not comply with the aforesaid notice and no return of income was filed by the assessee, even in response to notice u/s 148. The AO issued notice u/s 142(1) dated 25.05.2016 which was also claimed by the AO to have been duly served on 27.05.2016, but again there was no compliance on the part of the assessee. Thereafter, further notices u/s 142(1) were issued by the AO but again there was no compliances by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed first appeal with learned CIT(A). The assessee entered appearance before ld. CIT(A) through Advocate. The assessee filed appeal belatedly with ld. CIT(A) late by 350 days beyond the time statutorily allowed u/s 249(2), and the ld. CIT(A) condoned the delay. It is pertinent to mention that the appeal before ld. CIT(A) was filed by Smt. Manorma Jha who is legal heir to Shri Nelambar Jha( assessee), as the assessee has in the meantime expired. The assessee explained before learned CIT(A) that the money in construction of commercial complex was invested , from the following sources:- 1. Money received against the sale of land Rs. 40,00,000/- 2. Loan from Shri Umesh Pandey Rs. 12,00,000/- 3. Money received from the purchaser of shops Rs. 18,00,000/-/ Further, it was explained by assessee that cash deposits in the saving bank account with UBI were made out of advance received from the purchasers of the shops , as under:- Shri Kanahaiya Baitha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unexplained investment Rs. 22,17,420/- The AO, further , observed in remand proceedings that the so far as cash deposits of Rs. 20,40,000/- in bank is concerned, the assessee has explained that he has received advance of Rs. 27,36,000/- from following persons , as under: SI. No. Name Amount Date 1 Shri Kanahaiya Baitha Rs. 5,01,000/- 29.03.2008 2 Shri K.P. Singh Rs. 5,00,000/- 05.04.2008 3 Mohd. Salim Khan Rs. 16,95,000/- 15.04.2008 4 Shri Uma Shankar Rs. 40,000/ 16.02.2009 As per AO , that since, the assessee could not explain the identity and creditworthiness of the aforesaid deposits with their PAN , ITR s , c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate order passed by ld. CIT(A), the assessee has filed second appeal before tribunal , and has raised as many as eight grounds of appeals. This appeal was taken up for hearing before Division Bench(DB) on 21st April, 2022 , when none appeared on behalf of the assessee nor any adjournment application was filed . The DB adjourned the hearing. On the next date of hearing before DB on 26th May, 2022, none appeared for assessee the hearing was adjourned by DB to 07th July, 2022 on the written request of the assessee. When this matter again came up for hearing before DB on 7th July, 2022 , again none appeared on behalf of the assessee and the matter was adjourned to 25th August, 2022 at the written request of the assessee. On 25th August, 2022, when this matter again came up for hearing before DB, Advocate Shri S N Mani appeared before DB and request was made for adjourning the matter, the DB adjourned the matter to 13th October, 2022. When this matter came up for hearing through Virtual Court before DB on 13.10.2022, there was internet problem and the Bench could not function properly, and matter got adjourned to 03rd November , 2022. . When this matter came up for hearing before DB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere confirmed by ld. CIT(A). Further , the ld. Sr. DR submitted that cash deposit of Rs. 20.40 Lac in the bank account remained unsubstantiated. On being asked by the Bench as to the details of the persons from whom the assessee claimed to have received Rs. 27,36,000/- as advance and claim is made that two of the persons filed FIR against the assessee and the copy of judgment of Session Judge in bail application filed by the assessee, as to whether any verification was done by ld. CIT(A) and/or AO during remand proceedings, under Section 133(6)/131 with respect to explanation given by the assessee, the ld. Sr. DR submitted that as it emerges from records, the contentions of the assessee were rejected by the authorities below without making any verifications. Further, on being asked by the Bench, that the assessee has claimed that cash was deposited in the bank account out of the advance received from sale of shops, and whether is it the double additions as to firstly advance was added and secondly when the cash as claimed by the assessee was deposited in bank account out of the advance received, the ld. Sr. DR submitted that this need verification. It was also submitted by ld. Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot substantiate its claim so far as advance of Rs. 27,36,000/- received , as to identity and creditworthiness of the parties from whom the assessee has claimed to have received the advance, out of which claim was made by the assessee that he invested Rs. 18 lacs in construction of commercial complex. The assessee has claimed before us through written submissions that the sale deed dated 07th December, 2007 for Rs. 4,45,910/- was duly submitted before ld. CIT(A) , and the finding of ld. CIT(A) is factually incorrect that no sale deed dated 07th December, 2007 was submitted. In any case, the assessee has now filed sale deed dated 07th December, 2007 for Rs. 4,45,910/- , which is treated as additional evidence and since it goes to root of the matter and also in the interest of justice, we admit this additional evidence and remit the matter to the file of AO for verification and framing of denovo assessment. So far as advance of Rs. 27,36,000/- received by the assessee , out of which Rs. 18,00,000/- stood added as part of unexplained construction cost, the assessee has submitted that two of the persons namely Mr. Mohammad Salim Khan and Mr. K P Singh, filed FIR against the assessee , a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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