Shri Mahijit Kumar, Mandi Gobindgarh V. ITO, W-2, Mandi Gobindgarh

ITA 1434/CHANDI/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2760 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Audi alteram partem
• Section: 234B; 148; 144

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH (VIRTUAL COURT) .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.1434/CHD/2019 ASSESSMENT YEAR : 2010-11 MAHIJIT KUMAR S/O SHRI OM PARKASH, H.NO. 166, SECTOR-1C MANDI GOBINDGARH THE ITO WARD NO. 2, MANDI GOBINDGARH HQ AT SIRHIND PAN NO: ACIPK4347G APPELLANT RESPONDENT !' ASSESSEE BY : NONE (ADJOURNMENT APPLICATION OF SH RI. R.N. ARORA, ADVOCATE) #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 21/10/2021 '()*! & DATE OF PRONOUNCEMENT : 21/10/2021 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 21/08/2019 OF LD. CIT(A), PATIALA. 2. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSE. 3. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L. 1. THAT THE FIRST APPELLATE AUTHORITY HAVE NOT CONSIDE RED THAT THE ASSESSING OFFICER HAS ERRED IN REOPENING THE CASE U/S 148 OF THE INCOME TAX ACT, 1961. 2 2. THE FIRST APPELLATE AUTHORITY HAVE NOT CONSIDERED T HAT THE ASSESSING HAS ERRED IN NOT CONSIDERING THAT THERE WAS NO BELIEVE OR COGENT MATERIAL WITH THE INCOME TAX OFFICER TO FORM BELIEF THAT THE INCOME OF THE ASSESSE HAS E SCAPED ASSESSMENT. 3. THAT THE FIRST APPELLATE AUTHORITY HAVE NOT CONSIDE RED THAT THE ASSESSING OFFICER HAS ERRED IN ASSESSING THE INCOME AMOUNTING TO RS. 2359772/-. 4. THAT THE FIRST APPELLATE AUTHORITY HAS NOT CONSIDERED THAT NO SUFF ICIENT OR REASONABLE OPPORTUNITY WAS AFFORDED TO THE ASSESSE TO HEAR THE CASE. 5. THAT THE FIRST APPELLATE AUTHORITY HAVE NOT CONSIDE RED THAT THE ASSESSING OFFICER ASSESSED THE INCOME OF RS. 2359772/- AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE 6. THAT THE FIRST APPELLATE AUTHORITY HAVE NOT CONSIDE RED THAT NOTICE U/S 271(L)(B), 271(L)(C) HAS BEEN WRONGLY ISSUED AND INTEREST U/S 234A AND 234B HAS BEEN WRONGLY CHARGED. 7. THAT THE APPELLANT CRAVES LEAVES TO ADD OR AMEND AN Y OF GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OF. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. FRA MED THE ASSESSMENT EXPARTE UNDER SECTION 144 R.W.S 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) BY OBSERVING THAT AS PER THE INFORMATION AVAILABLE WIT H THE DEPARTMENT IN NMS, THE ASSESSEE HAS MADE FINANCIAL TRANSACTION AMOUNTING T O RS. 77,90,000/- WHICH REPRESENTED CASH DEPOSITS DURING THE F.Y. 2009-10 R ELEVANT TO A.Y. 2010-11. HE THEREFORE ISSUED THE NOTICE UNDER SECTION 148 R.W.S 147 OF THE ACT. SINCE THERE WAS NO COMPLIANCE FROM THE ASSESSEE SIDE THE A.O. M ADE THE ADDITION OF RS. 23,59,772/- BY OBSERVING THAT THE ASSESSEE HAD MADE CREDIT ENTRIES OF RS. 471954580/- IN HIS ACCOUNT MAINTAINED WITH STATE BA NK OF INDIA, MANDI GOBINDGARH. HE TREATED THE SAID AMOUNT AS UNACCOUNT ED TURNOVER OF THE ASSESSEE AND BY APPLYING THE G.P. RATE OF 0.5% WORK ED OUT THE PROFIT OF RS. 23,59,772/-. 3 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION BY PASSING THE EXPARTE ORDER . HE MENTIONED THAT WHENEVER THE NOTICE FOR HEARING WAS ISSUED NONE ATT ENDED EXCEPT FOR HEARING ON 11 & 16/03/2019 WHEN THE ADJOURNMENT WAS SOUGHT. 6. NOW THE ASSESSEE IS IN APPEAL. 7. THE LD. SR. DR STRONGLY SUPPORTED THE IMPUGNED O RDER PASSED BY THE LD. CIT(A) AND REITERATED THE OBSERVATIONS MADE THEREIN . 8. I HAVE HEARD THE SUBMISSIONS THE LD. DR AND PERU SED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTICED THAT THE A.O. ISSUED NOTICES UNDER SECTION 148 R.W.S 147 OF THE ACT BY O BSERVING THAT THE INFORMATION AVAILABLE WITH THE DEPARTMENT IN NMS WAS THAT THE A SSESSEE HAD MADE FINANCIAL TRANSACTIONS OF RS. 77.90 LACS. HOWEVER H E TREATED THE AMOUNT OF RS. 471954580/- AS UNACCOUNTED TURNOVER OF THE ASSESSEE , SO THERE IS CONTRADICTION IN THE STAND OF THE A.O. MOREOVER THE A.O. PASSED T HE ASSESSMENT ORDER EXPARTE AND THE LD. CIT(A) ALSO PASSED THE IMPUGNED ORDER E XPARTE. THE LD. CIT(A) SIMPLY STATED THAT THE NOTICES FOR HEARING WERE ISS UED TO THE ASSESSEE AND LAST ONE WAS ON 31/07/2019 FOR HEARING ON 14/08/2019. HO WEVER NOTHING IS BROUGHT ON RECORD AS TO WHETHER THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PARTEM . 4 9. I THEREFORE KEEPING IN VIEW THE PECULIAR FACT OF THIS CASE RESTORE THIS ISSUE BACK TO THE FILE OF THE A.O. TO BE ADJUDICATED AFRE SH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF B EING 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 21/10/2021 ) SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 21/10/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE