Raj Kumar Srivastava, Bahraich V. DCIT, CIRCLE Gonda, Gonda

ITA 175/LKW/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5761 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-10-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 08-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Proportionate interest; Set aside; Capital Gains
• Section: 153A; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “SMC”, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA No.175/LKW/2023 A.Y. 2012-13 DCIT, Circle, Gonda Vs. Raj Kumar Srivastava, 1046, Ghasiyaripura, Bahraich 271801 (U.P.) PAN AVHPS 0634G (Respondent) (Appellant) None present for the assessee Appellant by Shri Sanjeev Krishna Sharma, Addl. CIT( DR) Respondent by 18/10/2023 Date of hearing 31/10/2023 Date of pronouncement O R D E R This appeal has been preferred by the assessee against the order dated 10.04.2023 passed by the ld. Commissioner of Income Tax Appeal [hereinafter called the ‘CIT(A)’], Lucknow-3 for A.Y. 2012-13. 2. The brief facts of the case are that during the course of Uttar Pradesh State Assembly Election-2012, cash amounting to Rs.5,00,000/- was found and seized from the possession of the assessee on 05.01.2012 by the SHO, Kotwali Nagar, Barabanki. This information was passed on to the Income Tax Department 2 ITA No. 175/Lkw/2023 and later on the cash seized was requisitioned on 06.01.2012 u/s. 132A of the Income Tax Act, 1961 (hereinafter called the ‘Act’) by the Income Tax Department. Subsequently, statutory notice u/s. 153A of the Act was issued requiring the assessee to furnish the return of income. The Assessing Officer was informed that the return had already been filed declaring a total income of Rs.9,62,070/- which comprised of income from salary to the tune of Rs.5,60,000/-, profit and gains from business to the tune of Rs.5,24,340/- and capital gains of Rs.73,748/-. The assessee had claimed deduction u/s. 24 of the Act to the tune of Rs.96,022/- and had also claimed deduction under Chapter VI-A to the tune of Rs.1,00,000/-. The Assessing Officer made ad hoc disallowances out of the various expenses claimed to the tune of Rs.1,15,695/- and also made a further addition of Rs.5,00,000/- being the cash seized as unexplained money. The assessment was completed at a total income of Rs.15,77,770/-. 3. Aggrieved, the assessee approached the ld. First Appellate Authority challenging the two additions. However, the assessee’s appeal came to be dismissed by the ld. CIT(A) because the assessee did not appear before the ld. CIT(A). As per the 3 ITA No. 175/Lkw/2023 impugned order, sufficient opportunities of being heard were allowed to the assessee but nothing had been submitted by the assessee. 4. Now, the assessee has approached this Tribunal challenging the order of the ld. First Appellate Authority by raising the following grounds of appeal: “Ground No.1: 1. Ld. AO and CIT(A) has erred in law and facts that the cash seized be treated as unexplained u/s 69A in a case where the seized cash itself is a part of income tax return and was completely substantiated by the evidence during assessment proceedings. Ground No.2: 2. Ld. AO and CIT(A) had erred in facts and law while making the addition by disallowing the expenses of Printing & stationery, Advertisement expense, staff welfare, travelling & conveyance, Repair maintenance, Consumables, Diesel expense, Misc. exp on estimate basis while bill and vouchers are available on record and produced too. Ground No. 3: It is prayed to your highness either grant the required relief to assesses or to set aside the order of CIT(A) and remand back the case to concerned officer with instructions to consider the information and material available on record in order to provide the suitable relief to assessee. Ground No. 4: It is prayed to your highness to grant assessee all other benefits such as reduction of proportionate interest, release 4 ITA No. 175/Lkw/2023 of seized cash and set aside of penalty as available under the Income Tax Act 1961. Ground No. 5: It is prayed to your highness to allow the appellant to take additional grounds at the time of hearing of appeal.” 5. None was present on behalf of the assessee when the appeal was called out for hearing nor was any adjournment application placed before me in this regard. It is also seen that the notice of hearing issued by the Registry through RPAD has not been returned. Accordingly, looking into the facts of the case, I deem it appropriate to adjudicate the issue at hand exparte qua the assessee. 6. It is seen that the impugned order passed by the ld. CIT(A) is an ex-parte order wherein, the grounds of appeal raised by the assessee have been dismissed for the reason that the assessee did not avail the opportunities accorded to him for the purpose of explaining the source of cash seized as well as to explain why the ad hoc disallowances out of the expenditure incurred were not sustainable. In my considered opinion, the assessee, on the facts of this case and in the interest of substantial justice deserves one last opportunity to present his case. Accordingly, I restore this appeal to the Office of the ld. 5 ITA No. 175/Lkw/2023 First Appellate Authority with the direction to adjudicate the issue at hand after giving proper opportunity to the assessee to present his case. I also caution the assessee that if he fails to avail the opportunity being granted by this Tribunal to explain the case before the ld. First Appellate Authority, the ld. First Appellate Authority shall be at complete liberty to adjudicate the issue afresh, in accordance with law, through speaking order, even ex-parte qua the assessee. 7. In the final result, the appeal of the assessee stands allowed for statistical purposes. (Order pronounced in the open court on 31/10/2023) Sd/- (SUDHANSHU SRIVASTAVA) JUDICIAL MEMBER Aks – Dtd. 31/10/2023 Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) Departmental Representative (5) Guard File Assistant Registrar