Ambuja Ballav Samantray, Patna V. ITO, Ward 4(1), , Patna

ITA 128/PAT/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9632 (ITAT-PATNA)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY KUMAR
• Assessee Lawyers: A K RASTOGI RAKESH KUMAR; A K AGRAWAL ADVS
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH SMC , PATNA BEFORE SH. N. K. SAINI, ACCOUNTANT MEMBER ITA NO. 12 8 /PAT./2016 : ASSTT. YEAR : 2010 - 1 1 AMBUJA BALLAV SAMANTRAY, FLAT NO. A/74, ASHOKA PLACE, EXHIB ITION ROAD, PATNA - 800001 VS INCOME TAX OFFICER, WARD - 4 (1), PATNA (APPELLANT) (RESPONDENT) PAN NO. A SMPS4818G ASSESSEE BY : SH. A. K. RASTOGI, RAKESH KUMAR & SH. A. K. AGRAWAL, ADVS. REVENUE BY : SH. ABHAY KUMAR , SR. DR DATE O F HEARING : 07 .03 .201 8 DATE OF PRONOUNCEMENT : 08 . 0 3 .201 8 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30 .09.2016 OF LD. CIT(A) - 2 , PATNA . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. FOR THAT THE LE ARNED CIT(APPEALS) HAS ERRED IN ASSESSING THE PASSING THE ORDER EX - PARTE WHEN THE ASSESSEE WAS NOT AVAILABLE ON HIS ADDRESS SINCE LAST ONE YEAR. 2. FOR THAT THE LEARNED CIT(APPEALS) ERRED IN TREATING THE WHOLE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF THE A SSESSEE AS UNDISCLOSED INVESTMENT OF THE ASSESSEE AS THE SAME WERE OF VARIOUS CLIENTS AND ACCEPTED BY THE ASSESSEE TO INVEST ON BEHALF OF THEM. 3. FOR THAT THE LEARNED CIT(APPEALS) ERRED IN IGNORING THE APPLICATION OF AMOUNT DEPOSITED AS THE SAME WERE UTI LIZED FOR INVESTING IN VARIOUS DEPOSITS/SHARES ON BEHALF OF VARIOUS CLIENTS. 4. FOR THAT THE LEARNED CIT(APPEALS) HAS ERRED IN APPRECIATING THE FACTS. ITA NO. 128 /PAT. /201 6 AMBUJA BALLAV SAMANTRAY 2 5. FOR THAT THE WHOLE ORDER IS BAD IN FACT AND LAW AND IS FIT TO BE MODIFIED. 6. FOR THAT OTHER GROUND S, IF ANY, SHALL BE URGED AT THE TIME OF HEARING OF THE APPEAL. 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO. 1, RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INC OME ON 23.07.2010 SHOWING TOTAL INCOME OF RS.5,73,680/ - . LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE AO MADE THE ADDITION OF RS.35,19,946/ - U/S 69 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON ACCOUNT OF DEPOSITS ON VARIOUS DATE S IN THE DIFFERENT BANK ACCOUNTS MAINTAINED BY THE ASSESSEE. 5 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION BY PASSING THE EX - PARTE ORDER. THE LD. CIT(A) MENTIONED THAT THE NOTICE FOR HEARING WAS ISSUED TO THE ASSESSEE FIXING THE LAST DATE OF HEARING ON 04.08.2016 BUT NOBODY APPEARED ON THE DATE OF HEARING. 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE FOR HEARING WAS RECEIVED BY THE ASSESSEE. THEREFORE, THE LD . CIT(A) WAS NOT JUSTIFIED IN DECIDING THE APPEAL EX - PARTE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 8. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. ITA NO. 128 /PAT. /201 6 AMBUJA BALLAV SAMANTRAY 3 CIT(A) MENTIONED THAT VARIOUS NOTICE WERE ISSUED TO THE ASSESSEE FOR HEARING AND THERE WAS NO COMPLIANCE. HOWEVER, IT IS NOT B ROUG HT ON RECORD THAT ANY OF THE NO TICE ISSUED TO THE ASSESSEE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. I , THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE PRES ENT CASE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A ) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORD E R PRONOUNCED IN THE COU RT ON 08 /0 3 /2018 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 08 /03 /2018 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR