D.N. Patel, J - (1.) This Civil Miscellaneous Petition has been preferred under order xli rule 21 of the code of civil procedure wherein tax appeal being was dismissed ex-parte, as submitted by the counsel for the petitioner (original respondent). Counsel appearing for the petitioner has submitted that the aforesaid Order XLI Rule 21 is to be read with Section 260A (7) of the Income Tax Act, 1961. 2. Counsel appearing for the petitioner (original respondent) has relied upon the decision of the Hon'ble High Court of Madhya Pradesh, in the case of Shrinath Buliyan Refinery V. Commissioner of Income-tax, 2002 125 Taxman 1018 (M.P.). 3. Having heard counsel for both the sides, looking to the reasons stated in para 04 to 09 of the Civil Miscellaneous Petition and in view of the aforesaid decision, as per order xli rule 21 to be read with section 260a (7) of the income tax act, 1961, ex-parte order passed in appeal can be challenged by the respondent and the said ex-parte order passed in the appeal can be restored as sufficient cause is available. 4. We, therefore, recall the order passed by this Court dated 14.09.2010 in Tax Appeal No.38 of 2008 and Tax Appeal No.38 of 2008 is restored to its original file with the same number. 5. This Civil Miscellaneous Petition is allowed and disposed of. Tax Appeal No.38 of 2008 1. This Tax Appeal is taken for its final hearing upon the consent of the counsel for both the sides.
(2.) Counsel appearing for the appellant has submitted that this respondent is the partnership firm. The assessment for the year 2001 2002 had already been made and the Commissioner of Income Tax while exercising power under Section 263 of the Income Tax Act (revisional power) opened the assessment mainly on the grounds that huge amount of cash was brought to the partnership firm by two partners namely, Ranjan Jaiswal and Anju Jaiswal. Ranjan Jaiswal brought cash of Rs.9,46,126/- and Anju Jaiswal brought cash at Rs.9,51,563/-. No details have been given as to how the cash has been obtained by Ranjan Jaiswal and Anju Jaiswal. The Assessing Officer has not properly investigated as to how the cash has been brought in the partnership firm. The Assessing Officer had not examined the identity, genuineness of transaction and creditworthiness of the donors. Opportunities were given to the assessee to produce the donors, but, the donors were never produced. The order passed by the Commissioner of Income Tax under section 263 of the income tax act dated 03.06.2005 was challenged by the assessee by way of an appeal being Income Tax Appeal No.48/ PAT/ 06, which the Income Tax Appellate Tribunal, Circuit Bench, Ranchi allowed vide order dated 23.11.2007 mainly on the ground that the assessee is the partnership firm who got amount by cheque/ demand drafts. Details whereof have been given by Ranjan Jaiswal and Anju Jaiswal. These facts are not in dispute. As the appeal was allowed by the Income Tax Appellate Tribunal, Circuit Bench, Ranchi, the present Tax Appeal has been preferred by the department mainly on the aforesaid ground of the identity of the donors, genuineness of the transaction and the creditworthiness of the donors. These aspects of the matter have not been properly investigated by the Assessing Officer, and hence, the order passed by the Income Tax Appellate Tribunal, Circuit Bench, Ranchi dated 23.11.2007 in Income Tax Appeal No.48/ PAT/ 06 for the assessment year 2001-02, deserves to be quashed and set aside.
(3.) Counsel appearing for the respondent (assessee) has submitted that no error has been committed by the Income Tax Appellate Tribunal, Circuit Bench, Ranchi in allowing the appeal preferred by the assessee mainly for the reasons that the assessee is the partnership firm which has received amount by cheques or demand drafts, details whereof are on record. These cheques or demand drafts have been given by Ranjan Jaiswal and Anju Jaiswal for the amount of Rs.9,46,126/- and for the amount of Rs.9,51,563/- respectively. It is submitted by the counsel for the respondent that this assessee- partnership firm has already explained that without any ambiguity and without any equivocalness of the source of the amount. It is submitted by the counsel for the respondent that the department is in search of the source of source which is not permissible. From where Ranjan Jaiswal and Anju Jaiswal obtained the amount, that can be asked to Ranjan Jaiswal and Anju Jaiswal by re-opening their re-assessment, but, the facts remain that the partnership firm has received the amount by cheques or demand drafts. Thus, the source of the amount has already been explained. This aspect of the matter has been properly appreciated by the Income Tax Appellate Tribunal, Circuit Bench, Ranchi while allowing the appeal preferred by the assessee by order dated 23.11.2007.;