IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-1, NEW DELHI Before Sh. N. K. Saini, Accountant Member ITA No. 2066/Del/2015 : Asstt. Year : 2010-11 Sh. Ajay Kumar, Vs Income Tax Officer, H/No.-11C-192, Nehru Nagar, Ward-1(1), Ghaziabad (UP)-201001 Ghaziabad (UP) (APPELLANT) (RESPONDENT) PAN No. ANTPK6951G Assessee by : Sh. Anoop Sharma & Sanjay Prasahar, Advs. Revenue by : Sh. F. R. Meena, Sr. DR Date of Hearing : 21.09.2016 Date of Pronouncement : 07.10.2016 ORDER This is appeal by assessee against order dated 29.01.2016 of ld. CIT(A), Ghaziabad. 2. Following grounds have been raised in this appeal: 1. That Ld. CIT(A) Ghaziabad erred in law, on facts and surroundings circumstances in upholding whopping additions of Rs. 1127940/- being entire cash credits appearing in two saving bank accounts maintained by appellant, on illogical, and irrelevant grounds having no sanctity in law. 2. That Ld. CIT(A), further erred in law, on facts and surrounding circumstances in ignoring altogether non applicability of section 68 of IT. Act. vis-a-vis findings of jurisdictional ITAT Bench 'C', Delhi in land mark judgment in case of Km. Mayawati vs. DCIT Central Circle-ll Poll, New Delhi, heavily relied upon by appellant, without assigning single logical 2 ITA No. 2066/Del/2015 Ajay Kumar word, knowingly well that it was of binding nature for jurisdictional taxation authorities. 3. That, with due apology, Ld, CIT(A) in his zeal to sustain impugned additions made u/s 68 of IT. Act. by Ld. A.O. and in order to defeat impact of above cited judgment of jurisdictional ITAT, Delhi, invoked plenary powers of co-terminus, vested in CIT(A), by converting impugned additions u/s 69 of IT. Act, in sweeping manner, leading to travesty of natural law and justice. 4. That in doing so, Ld. CIT(A) further erred in law, on facts and surrounding circumstances in failing to provide reasonable opportunity of being heard resulting in breach of principle of 'audi alteram partem'. 5. That Ld. CIT(A) also erred in law on facts and surrounding circumstances in out rightly rejecting application u/r 46A of IT. Rules, without any speaking order, in arbitrary and fanciful manner leading to closure of doors of justice to appellant. 6. That keeping in view, binding nature of above land mark judgment coupled with various other decisions, having direct applicability on facts and circumstances of appellant case, impugned additions are liable to be deleted in interest of natural law and justice. appellant seeks permission to add, amend or withdraw any ground(s) of appeal. 3. From above grounds it is gathered that main grievance of assessee vide Ground Nos. 4 to 6 relates to opportunity of being heard not provided and rejection 3 ITA No. 2066/Del/2015 Ajay Kumar of application moved by assessee under Rule 46A of Income Tax Rules, 1962 by ld. CIT(A). 4. Facts of case in brief are that assessee filed return of income on 28.03.2011 declaring income of Rs.1,54,433/-. Later on, case was selected for scrutiny. AO framed assessment at income of Rs.12,90,026/- by making addition of Rs.11,27,940/- on account unexplained cash credits in bank account and Rs.40,653/- as income from other sources. 5. Being aggrieved assessee carried matter to ld. CIT(A) and filed application for admission of additional evidences under Rule 46A of Income Tax Rules, 1962. ld. CIT(A), however, rejected application of assessee and did not admit additional evidences by observing that assessee did not produce depositor despite specific requirement and opportunity given by AO. 6. Now assessee is in appeal. ld. Counsel for assessee submitted that his uncle late Sh. Chater Singh Yadav used to give him cash which was deposited in bank account and returned back on demand to his wife. However, ld. CIT(A) did not accept additional evidence in form of death certificate of Late Sh. Chater Singh Yadav and affidavit 4 ITA No. 2066/Del/2015 Ajay Kumar of his wife Smt. Krishna Yadav, said documents goes to root of matter and fully supports claim of assessee. It was stated that assessee could not procure those documents earlier, therefore, this could not be furnished before AO. He requested that matter may be sent back to AO because ld. CIT(A) also changed and addition was made u/s 69 instead of 68 of Act. 7. In his rival submissions ld. DR strongly supported impugned order and reiterated observations made by ld. CIT(A). 8. I have considered submissions of both parties and perused material available on record. In present case, it appears that AO made addition on account of cash deposits in two saving bank accounts maintained by assessee with Oriental Bank of Commerce. claim of assessee was that amount was received by him from his uncle Sh. Chater Singh Yadav who later on expired, however, he could not produce wife of his uncle before AO for recording of statement but later on assessee procured affidavit of Smt. Krishna Yadav widow of Sh. Chater Singh Yadav and also obtained death certificate of Sh. Chater Singh Yadav. In my opinion, ld. CIT(A) ought to have admitted additional evidences furnished by 5 ITA No. 2066/Del/2015 Ajay Kumar assessee and then decided case on merit. It is also noticed that AO made addition u/s 68 of Act, however, ld. CIT(A) changed addition u/s 69 instead of Section 68 of Act but it is not clear why addition was sustained by ld. CIT(A) under different section of IT Act. In present case, it appears that assessee was prevented by reasonable cause for producing additional evidences before AO because depositor Sh. Chater Singh Yadav expired. Later on, assessee obtained death certificate of Sh. Chater Singh Yadav as well as affidavit of his widow and furnished same before ld. CIT(A). I, therefore, deem it appropriate to set aside this case back to file of AO for fresh adjudication in accordance with law after providing due and reasonable opportunity of being heard to assessee. 9. In result, appeal of assessee is allowed for statistical purposes. (Order Pronounced in Court on 07/10/2016) Sd/- (N. K. Saini) ACCOUNTANT MEMBER Dated: 07/10/2016 Subodh Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5.DR: ITAT ASSISTANT REGISTRAR Ajay Kumar v. Income-tax Officer, Ward-1(1), Ghaziabad (UP)