Sh. Chander Kant Sharma, Chandigarh V. ITO, W-5(5), Chandigarh

ITA 1252/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0661 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO.1252/CHD/2018 ASSESSMENT YEAR: 2010-11 SH. CHANDER KANT SHARMA VS. THE ITO # 1750, HOUSING BOARD, DHANAS W-5(5) CHANDIGARH CHANDIGARH PAN NO. AYCPS0673B (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SH. Y.K. MITTAL, SR. DR DATE OF HEARING : 26/03/2019 DATE OF PRONOUNCEMENT : 26/03/2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 25/07/2018 OF THE LD. CIT(A)-2, CHANDIGARH. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED THE FO LLOWING GROUNDS: 1. THAT THE IMPUGNED ORDER IS AGAINST FACTS AND LAW AND WITHOUT JURISDICTION. 2. THAT THE WORTHY COMMISSIONER OF INCOME TAX(A) HA S ERRED IN CONFIRMING THE ADDITION OF RS. 13,77,400/- ON ACCOUNT OF UNEXP LAINED BANK DEPOSITS IN ICICI BANK AND DETAILS AVAILABLE UNDER FORM 26AS AS THE A PPELLANT DOES NOT HAVE ANY BANK ACCOUNT IN ICICI BANK LTD AT ANY POINT OF TIME AND EXPLANATION OF THE FORM 26AS ALREADY DECLARED IN RETURN OF INCOME. THIS ADD ITION IS UNCALLED FOR AND DESERVES TO BE DELETED AS NO PROPER REASONABLE OPPO RTUNITY BEEN GRANTED TO THE APPELLANT IN ORDER TO EXPLAIN THE EXACT AND COR RECT POSITION. 3. THAT THE WORTHY COMMISSIONER OF INCOME TAX(A) HA S ERRED IN CONFIRMING THE ADDITION OF RS. 139527ON ACCOUNT OF GROSS RECEI PTS RECEIVED BY THE APPELLANT AND DISALLOWING THE DEDUCTION OF CERTAIN EXPENSE AM OUNTING TO RS. 108991/- IT IS RESPECTFULLY SUBMITTED THAT THE APPELLANT HAD ALREA DY DECLARED THE PROFIT AMOUNTING TO RS. 30,536/ - IN HIS RETURN OF INCOME. 4. THAT THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR ADD TO ABOVE GROUNDS OF APPEAL, BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSIN G OFFICER ISSUED A NOTICE TO THE ASSESSEE UNDER SECTION 148 OF THE INC OME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) ON 22/03/2017 ON THE BASIS OF INFORMATION THAT THE ASSESSEE DURING THE YEAR RELEVANT TO THE A.Y. U NDER CONSIDERATION MADE 2 CASH DEPOSITS OF RS. 4,83,940/- IN ICICI BANK LTD. AND AS PER FORM NO. 26AS HE HAD RECEIVED PAYMENT AMOUNTING TO RS. 8,93,460/- BU T NO RETURN OF INCOME WAS FILED. IN RESPONSE TO THE SAID NOTICE THE ASSESSEE FILED THE RETURN OF INCOME ON 02/05/2017 DECLARING AN INCOME OF RS. 6,54,650/- AF TER CLAIMING DEDUCTION OF RS. 99,943/- UNDER CHAPTER VIA OF THE ACT. THE ASSESSIN G OFFICER HOWEVER FRAMED THE ASSESSMENT, EXPARTE UNDER SECTION 144 OF THE AC T AT AN INCOME OF RS. 21,71,577/-. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE BY PASSING THE EX-PARTE ORDER. HE MENTIONED THAT THE NOTICE DT. 02/07/2018 WAS ISSUED TO THE ASSESSEE FOR HEARING ON 25/07/2018 BY REGISTERED POST BUT NONE ATTENDED. HE ALSO MENTIONED IN PARA 5 OF THE IMPUGNED ORDER AS UNDER: 5. THE FACTS OF THE CASE AS NOTED ABOVE ARE THAT T HE APPELLANT HAS NOT PURSUED THE APPEAL DESPITE BEING GRANTED SEVERAL OPPORTUNIT IES. ACCORDINGLY, THE APPEAL IS DECIDED ON THE BASIS OF FACTS AVAILABLE ON RECOR D. THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE A .O. 5. NOW THE ASSESSEE IS IN APPEAL. 6. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE THEREFORE THE APPEAL IS SET DECIDED EX-PAR TE ON MERITS AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR. 7. DURING THE COURSE OF HEARING THE LD. DR SUBMITTE D THAT THE ASSESSEE WAS NON COOPERATIVE AND DID NOT APPEAR BEFORE THE LD. C IT(A), SO, THERE WAS NO ALTERNATIVE EXCEPT TO DECIDE THE APPEAL EXPARTE AND THAT EVEN BEFORE THE ASSESSING OFFICER THE ASSESSEE DID NOT APPEAR, THER EFORE THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT( A) WAS FULLY JUSTIFIED. 8. I HAVE CONSIDERED THE SUBMISSION OF THE LD. DR A ND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) PASSED THEIR RESPECTIVE ORDERS EXPARTE. IN THE IMPUGNED ORDER THE LD. CIT(A) HAS MENTIONED THAT THE NOTICE FOR HEARING WAS ISSUED TO THE ASSESSEE, HOWEVER NOTHING IS BROU GHT ON RECORD TO SUBSTANTIATE THAT THE SAID NOTICE WAS SERVED UPON T HE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTEM . I THEREFORE CONSIDERING THE TOTALITY OF THE FACT S, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT (A) TO BE ADJUDICATED AFRESH IN 3 ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 26/03/2019). SD/- (N.K. SAINI) VICE PRESIDENT PLACE: CHANDIGARH DATED : 26/03/2019 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR