Sh. S.L. Arora, Mohali V. ITO, W-6(2), Mohali

ITA 1311/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3437 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 17-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: PARIKSHIT AGGA RWALCA
• Keywords: Opportunity of being heard
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO.1311/CHD/2018 ASSESSMENT YEAR: 2010-11 SH. SOHAN LAL ARORA VS. THE ITO H.NO. 123, PHASE 3B1 WARD-6(2) MOHALI MOHALI PAN NO. ACLPA9483C (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PARIKSHIT AGGARWAL,CA REVENUE BY : SH. MANJIT SINGH, SR. DR DATE OF HEARING : 20/02/2019 DATE OF PRONOUNCEMENT : 20/02/2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 27/09/2018 OF LD. CIT(A)-2, CHANDIGARH. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED THE FO LLOWING GROUNDS: 1. THAT ON THE FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) IN APPEAL NO. 10471/2/17-18 DATED 27.09.2018 HAS ERRED IN PASSING THAT ORDER IN CONTRAVENTION OF THE PROVISIONS OF S. 250( 6) OF THE INCOME TAX ACT, 1961. 2. THAT ON FACTS, CIRCUMSTANCES OF THE CASE AND IN LAW , THE WORTHY CIT(A) HAS ERRED IN PASSING THE ORDER ON EX-PARTE BASIS EVEN W HEN REASONABLE OPPORTUNITY OF BEING HEARD WAS NOT ALLOWED AND THERE EXISTED REASO NABLE CAUSE FOR NON- APPEARANCE ON THE APPOINTED DATE. 3. THAT ON FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. AO IN INITIATING, CONTINUING AND THEN CONCLUDING THE IMPUGNED ASSESSMENT U/S 147 R.W .S. 148 OF THE ACT AND HENCE THE IMPUGNED ASSESSMENT DESERVES TO BE QUASHE D. 4. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE, T HE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS. 33,00,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSIT IN HDFC BANK EVEN WHEN SUCH CREDITS WERE FROM DECLARED SOURCES. 5. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITION, D ELETION OR AMENDMENT IN THE GROUNDS OF APPEAL ON OR BEFORE THE DISPOSAL OF THE SAME. 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND N O. 2 RELATES TO THE EX- PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVID ING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSIN G OFFICER ON THE BASIS OF INFORMATION AVAILABLE IN NON-FILING MONITORING SYST EM NMS THAT THE ASSESSEE HAS 2 DEPOSITED CASH OF RS. 33,00,000/- IN HIS SAVING BAN K ACCOUNT MAINTAINED WITH HDFC BANK LTD. INITIATED THE PROCEEDINGS UNDER SECT ION 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). THE A SSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING SUBMITTED THAT HE HAD ENTERED INTO AN AGREEMENT TO SELL THE PROPERTY TO ONE SHRI SANDEEP KUMAR FOR A C ONSIDERATION OF RS. 1,50,00,000/- AGAINST WHICH HE HAD RECEIVED RS. 6,0 0,000/- ON 21/04/2009 AND RS. 24,00,000/- ON 15/06/2009 WHICH WERE DEPOSITED IN T HE BANK ACCOUNT MAINTAINED WITH HDFC BANK LTD. THE ASSESSING OFFICE R ASKED THE ASSESSEE TO FURNISH IDENTITY PROOF OF SHRI SANDEEP KUMAR AND TO PROVE THE GENUINENESS OF THE TRANSACTION AS WELL AS CREDIT WORTHINESS OF SHRI SA NDEEP KUMAR. ACCORDING TO THE ASSESSING OFFICER THE ASSESSEE DID NOT FILE ANY EXP LANATION, HE THEREFORE MADE THE ADDITION OF RS. 33,00,000/-. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL BY PASSING THE EX-PARTE ORDER. 6. NOW THE ASSESSEE IS IN APPEAL. 7. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO N OTICE FOR HEARING WAS SERVED UPON THE ASSESSEE WHO WAS OUT OF INDIA AT TH E RELEVANT TIME WHEN THE APPELLATE PROCEEDINGS WERE UNDERTAKEN BY THE LD. CI T(A). HE FURNISHED THE AFFIDAVIT DT. 20/02/2019 OF THE ASSESSEE IN THIS RE GARD, WHICH IS PLACED ON RECORD. HE ALSO FURNISHED THE COPY OF PASSPORT IN SUPPORT O F HIS SUBMISSION THAT THE ASSESSEE WAS OUT OF COUNTRY FROM 29/05/2018 TO 17/1 1/2018 AND WAS NOT HAVING ANY KNOWLEDGE OF THE DATES OF HEARING. HE REQUESTED TO SET ASIDE THE CASE TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN HIS RIVAL SUBMISSION THE LD. SR. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 9. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE I T IS AN ADMITTED FACT THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EX-PARTE. HE S IMPLY STATED THAT THE NOTICE FOR HEARING ON 27/09/2018 WAS ISSUED ON 17/09/2018 BUT NOBODY ATTENDED, HOWEVER, IT IS NOT BROUGHT ON RECORD AS TO WHETHER THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. IT IS ALSO NOTICED THAT THE ASSE SSEE WAS NOT IN INDIA DURING THE PERIOD WHEN THE LD. CIT(A) ISSUED THE NOTICE FOR HE ARING WHICH IS EVIDENT FROM THE AFFIDAVIT AS WELL AS COPY OF THE PASSPORT FURNI SHED BY THE ASSESSEE. I 3 THEREFORE CONSIDERING THE TOTALITY OF THE FACTS DEE M 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 REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 20/02/2019.) SD/- (N.K. SAINI) VICE PRESIDENT PLACE: CHANDIGARH DATED : 20/02/2019 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR