Shri Ajit Darda, Indore V. THE ITO 2(3), Indore

ITA 156/IND/2017

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5679 (ITAT-INDORE)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 68; 144

Judgement Text

AJIT DARDA ITA NO.156/IND/2017 : A.Y. 2009-10 PAGE 1 OF 6 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .. , . . , !'!# BEFORE SHRI C. M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER . . $ /. I.T.A. NO.156/IND/2017 %& / ASSESSMENT YEAR: 2009-10 SHRI AJIT DARDA 163-A, BRINJESHWAR ANNEX INDORE VS. INCOME TAX OFFICER 2(3) INDORE / // / APPELLANT / // / RESPONDENT . . ./ PAN: AEXPD 4727Q / // / APPELLANT BY NONE / // / RESPONDENT BY SHRI MOHD. JAVED / // / DATE OF HEARING 21.03.2017 / // / DATE OF PRONOUNCEMENT 27.03.2017 / // / O R D E R PER BENCH THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, INDORE [HE REINAFTER REFERRED TO AS THE CIT (A)] DATED 16.11.2016. THIS APPEAL PERTAINS TO ASSESSMENT YEAR 2009-10 AS AGAINST APPEAL DECIDED I N RESPECT OF ASSESSMENT ORDER DATED 16.12.2011 PASSED U/S. 144 O F INCOME TAX AJIT DARDA ITA NO.156/IND/2017 : A.Y. 2009-10 PAGE 2 OF 6 2 ACT, 1961(HEREIN AFTER REFERRED TO AS 'THE ACT) BY THE ITO 2(3), INDORE [HEREINAFTER REFERRED TO AS THE AO]. 1. AT THE TIME OF HEARING, NONE ATTENDED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING INSPITE OF NOTICE. THE LEARN ED DR WAS HEARD. 2. THE SUM AND SUBSTANCE OF THE GROUNDS OF APPEAL OF THE ASSESSEE IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFI ED IN CONFIRMING THE ADDITION OF RS.14,27,056/- MADE BY THE ASSESSIN G OFFICER U/S 68 OF THE ACT IN RESPECT OF CASH DEPOSITS MADE BY T HE ASSESSEE IN HIS SAVINGS BANK ACCOUNT WITHOUT CONSIDERING THE MA TERIAL FACT THAT THE ENTIRE CASH DEPOSITS WERE MADE BY THE ASSESSEE OUT OF THE EXPLAINED SOURCES ONLY . 2.1 SUCCINCTLY, FACTS AS CULLED OUT FROM THE ORD ERS OF LOWER AUTHORITIES ARE THAT THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 25.3.2010 DECLARING TOTAL INCOME AT RS. 1,98,650 /-. THE CASE WAS SELECTED FOR SCRUTINY AND FIRST NOTICE U/S 143( 2) OF THE ACT WAS ISSUED ON 18.8.2010 FIXING THE HEARING OF THE CASE FOR 9.9.2010. THE NOTICE WAS SERVED ON THE ASSESSEE ON 25.8.2010. HOW EVER, THERE WAS NO REPRESENTATION ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING. THEREAFTER DETAILED QUESTIONNAIRE ALONG WI TH NOTICES U/S 143(2) AND 142(1) WERE ISSUED TO THE ASSESSEE ON 20 .1.2011 BY AJIT DARDA ITA NO.156/IND/2017 : A.Y. 2009-10 PAGE 3 OF 6 3 SPEED POST FIXING THE DATE OF HEARING ON 11.2.2011. ON THIS DATE ALSO, NONE ATTENDED ON BEHALF OF THE ASSESSEE. THE ASSESSING OFFICER AGAIN ISSUED ANOTHER NOTICE U/S 142(1) ON 1 4.2.2011 FIXING THE DATE OF HEARING ON 8.3.3011. HOWEVER, ON THIS D ATE ALSO, NEITHER ANYBODY ATTENDED NOR ANY REPLY WAS FILED ON BEHALF OF THE ASSESSEE. FURTHER THE ASSESSING OFFICER ISSUED NOTICE U/S 143 (1) ON 25.5.2011 FIXING THE DATE OF HEARING ON 9.6.2011 BUT TO NO AV AIL. AS LAST OPPORTUNITY, THE ASSESSING OFFICER AGAIN ISSUED A N OTICE U/S 142(1) OF THE ACT ON 6.7.2011 FIXING THE CASE FOR HEARING ON 15.7.2011. THE ASSESSING OFFICER ISSUED QUESTIONNAIRE VIDE NOT ICE DATED 20.1.2011 IN RESPONSE TO WHICH THE AR OF THE ASSESS EE ATTENDED AND FILED WRITTEN REPLY. VIDE NOTE SHEET ENTRY DATE D 3.11.2011 THE ASSESSING OFFICER ASKED THE ASSESSEE TO SUBMIT THE REQUISITE INFORMATION AND DOCUMENTS BY FIXING THE CASE FOR HE ARING ON 10.11.2011. HOWEVER, ON THIS DATE ALSO, NEITHER THE ASSESSEE ATTENDED NOR FILED ANY REPLY. SINCE IT WAS A TIME BARRING CASE AND THE ASSESSMENT WAS TO BE MADE BY 31.12.2011, THEREF ORE, FINALLY NOTICE U/S 143(2)/142(1) OF THE ACT DATED 25.11.201 1 WAS ISSUED TO THE ASSESSEE FIXING THE CASE FOR HEARING ON 25.11.2 011 BY CLEARLY MENTIONING THEREIN THAT AS A LAST OPPORTUNITY, YOU ARE ONCE AGAIN AJIT DARDA ITA NO.156/IND/2017 : A.Y. 2009-10 PAGE 4 OF 6 4 REQUESTED TO FURNISH THE REQUISITE INFORMATION AS P ER NOTICES ABOVE ON 12.12.2011 AT 11 AM OTHERWISE YOUR ASSESSMENT HAS B EEN COMPLETED ON THE BASIS OF FACTS AND RECORD UNDER SE CTION 144 OF THE ACT FOR WHICH ARE ONLY RESPONSIBLE. HOWEVER, THE ASSESSEE DID NOT CARE TO RESPOND. IN VIEW OF THIS CONDUCT OF THE ASS ESSEE, THE ASSESSING OFFICE HAD NO ALTERNATE BUT TO PROCEED TO MAKE THE ASSESSMENT U/S 144 OF THE ACT ON THE BASIS OF MATER IAL AVAILABLE ON RECORD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS DEPOSITED AN AM OUNT OF RS.14,27,056/- IN THE SAVINGS BANK ACCOUNT WITH STA NDARD CHARTERED BANK. HOWEVER, THE ASSESSEE DID NOT FILE ANY SOURCE OF PROOF OF THE SAID DEPOSIT WITH THE RETURN OF INCOME OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSING OFF ICER, THEREFORE, OBSERVED THAT THE ASSESSEE HAS NO PROOF REGARDING T HE SOURCE OF CASH DEPOSIT AND THIS MONEY HAS BEEN DEPOSITED BY H IM OUT OF HIS UNDISCLOSED INCOME. HE, THEREFORE, ADDED THIS UNDIS CLOSED INCOME OF RS.14,27,056/- TO THE TOTAL INCOME OF THE ASSESS EE U/S 68 OF THE ACT. 2.2 FELT AGGRIEVED WITH THE ABOVE ADDITION MADE BY THE ASSESSING OFFICER, THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LEARNED CIT(A). AJIT DARDA ITA NO.156/IND/2017 : A.Y. 2009-10 PAGE 5 OF 6 5 THE LEARNED CIT(A) CONSIDERING THE SUBMISSIONS OF T HE ASSESSEE IN THE WAKE OF THE FACTS OF THE CASE, CONFIRMED THE AC TION OF THE ASSESSING OFFICER. 2.3 AGAINST THE CONFIRMATION OF ADDITION BY THE LE ARNED CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 2.4 THE LEARNED DR SUPPORTED THE ORDERS OF THE A UTHORITIES BELOW. THE LEARNED DR SUBMITTED THAT SINCE THE ASSESSEE HA S BEEN PROVIDED A NUMBER OF OPPORTUNITIES, THE ASSESSEE IS NOT ENTITLED FOR FURTHER OPPORTUNITY. 2.5 AFTER CAREFUL CONSIDERATION OF THE SUBMISS IONS OF THE PARTIES IN VIEW OF THE FACTS OF THE CASE, WE FIND THAT IN T HIS CASE THE ASSESSING OFFICER HAS MADE THE ASSESSMENT U/S 144 O F THE IT ACT. IT IS A WELL SETTLED PRINCIPLE OF NATURAL JUSTICE T HAT NO-BODY SHOULD BE CONDEMNED UNHEARD. PRINCIPLE OF NATURAL REQUIRES THAT SUFFICIENT OPPORTUNITY OF BEING HEARD SHOULD BE PROVIDED TO TH E ASSESSEE BEFORE DECIDING THE ISSUE AGAINST HIM. WE ARE OF T HE VIEW THAT SINCE THE ASSESSING OFFICER HAS DECIDED THE MATTER WITHOU T HEARING THE ASSESSEES IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY, THIS APPEAL NEEDS TO BE RESTORED TO HIS FILE FOR DECIDING THE SAME AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE AJIT DARDA ITA NO.156/IND/2017 : A.Y. 2009-10 PAGE 6 OF 6 6 ASSESSEES. WE, THEREFORE, FOLLOWING THE PRINCIPLE O F NATURAL JUSTICE, RESTORE THIS APPEAL TO THE FILE OF THE ASSESSING OF FICER WITH THE DIRECTION TO FRAME FRESH ASSESSMENT AFTER PROVIDING THE ASSESSEES DUE OPPORTUNITY OF BEING HEARD. NEEDLESS TO MENTION THAT THE ASSESSEE IS AT LIBERTY TO FILE EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM BEFORE THE ASSESSING OFFICER. 2. IN THE RESULT, THE APPEAL OF THE ASSESSEES IS A LLOWED FOR STATISTICAL PURPOSES. 3. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH MARCH, 2017. SD/ - SD/- ( . . ) (C.M.GARG) JUDICIAL MEMBER ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER / DATED : 27 TH MARCH , 2017 DN/-