Prem Suman, Noida V. ITO, New Delhi

ITA 1671/DEL/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6594 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 07-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 06-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI
• Assessee Lawyers: APPLICATION REJECTED
• Keywords: Unexplained cash credit; Principle of natural justice
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I: NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T. A. NO.1671/DEL/2011 ASSESSMENT YEAR : 2006-07 PREM SUMAN, ASSISTANT COMMISSIONER OF INCOME-TAX, D-1/153D, ARAVALI. VS. WARD 24(3), NEW DELHI. APARTMENT, SECTOR-52, NOIDA. PAN: ALSPS7184E (APPELLANT) (RES PONDENT) APPELLANT BY: APPLICATION REJECTED. RESPONDENT BY: MS. BANITA DEVI , SR. DR. O R D E R PER DIVA SINGH, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 08.02.2011 OF THE COMMISSIONER OF INCOME-TAX (APPEA LS)-XXIII, NEW DELHI, PERTAINING TO THE ASSESSMENT YEAR 2006-07. 2 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATI ON WAS MOVED BY THE LEARNED AR FOR THE ASSESSEE REQUESTING FOR TIME IN ORDER TO FILE A PAPER BOOK. THE SAME WAS REJECTED TAKING INTO ACCOUNT THE GROUN DS RAISED BY THE ASSESSEE WHICH READ AS UNDER:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DISMISSING THE APPEAL FOR NON-PROSECUTION AND WITHOUT GIVING A NY DECISION ON LAW AND MERITS, WITHOUT VERIFYING THE FACT OF NO N-SERVICE OF HIS NOTICE ON THE APPELLANT, BEING AGAINST THE PRIN CIPLES OF NATURAL JUSTICE. 2. THE LD. CIT(A) HAS THEREFORE ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER OF AO WHICH IS CONTRARY TO LAW AND WITHOUT JURISDICTION ON ACCOUNT OF NON-SERVICE OF STATUTORY NOTICE U/S 143(2) IN TIME AND AGAINST THE PRINCIPLES OF NATURA L JUSTICE. 3. WITHOUT PREJUDICE TO GOA-1 & 2, THE LEARNED CIT( A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING IN SUB-SILEN TIO, THE IMPUGNED ADDITION OF RS.2,31,036/- MADE BY THE LEAR NED AO ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT U/S. 68 BEING ALLEGED DEPOSITS IN CASH IN THE BANK, BEING AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSMEN T WAS MADE UNDER SEC. 144 OF THE INCOME-TAX ACT BY THE ASSESSING OFF ICER AFTER TAKING INTO ACCOUNT THE FACT THAT THE ASSESSEE AFTER SEEKING VA RIOUS ADJOURNMENTS THROUGH HIS LEARNED AR SHRI S.K. AGGARWAL, CA, ABSTAINED FR OM THE PROCEEDINGS. AS A RESULT OF THIS, AGAINST THE DECLARED INCOME OF RS.98,956/- AND AGRICULTURAL INCOME OF RS.1,10,850/-, THE AO MADE C ERTAIN ADDITIONS ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT RS.3, 53,991/-. IN APPEAL THESE 3 ADDITIONS WERE CHALLENGED. A PERUSAL OF THE IMPUGN ED ORDER SHOWS THAT THE APPEAL WAS FIXED FOR HEARING ON 3.01.2011 AND THERE AFTER AGAIN ON 4.02.2011. ON NONE OF THESE DATES THE ASSESSEE WAS PRESENT NOR ANY REQUEST FOR ADJOURNMENT WAS PLACED. IN VIEW OF THESE FACTS THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION HOLD ING THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. 4. AFTER HEARING THE LEARNED DR, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE ACTION OF THE CIT(A) CANNOT BE UPHELD BY US. SECTION 250(6) OF THE INCOME-TAX ACT MANDATES THAT THE ORDER OF THE SAID AUTHORITY SHALL STATE THE POINTS FOR DE TERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. A PERUSA L OF THE IMPUGNED ORDER SHOWS THAT THE CIT(A) HAS SIMPLY DISMISSED THE APPE AL OF THE ASSESSEE FOR NON-PROSECUTION WHICH IS NOT AS PER THE REQUIREMENT OF LAW. ACCORDINGLY, THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A ) WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEI NG HEARD. IN VIEW OF ADJOURNMENT PETITION MADE BY THE ASSESSEE WHEREIN H E SEEKS TO FILE A PAPER BOOK TAKING INTO CONSIDERATION THE FACT THAT THE AS SESSMENT WAS MADE UNDER SEC. 144, THE LEARNED CIT(A) SHALL ACCEPT THE PAPER BOOK FILED BY THE ASSESSEE AS PER LAW AND DECIDE THE ISSUE ACCORDINGL Y. 4 ITA NO.1671/DEL/2011 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 6. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N THE DATE OF HEARING ITSELF I.E. ON 7 TH JUNE, 2011. SD/- SD/- (B.C. MEENA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7 TH JUNE, 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.