Sh. Shiv Kumar, Saharanpur V. ITO, Saharanpur

ITA 1761/DEL/2014

• Counselvise Citation: 176120114 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 07-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHIM SINGH
• Keywords: Opportunity of being heard; Source of fund
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - I , NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 1761 /DEL/201 4 : ASSTT. YEAR : 200 8 - 09 SH. SHIV KUMAR, S/O - SH. JODH SINGH, VILL . & PO. - MIRAGPUR, DEOBAND, SAHARANPUR VS SH. BIR SI NGH , INCOME TAX OFFICER , WARD - 3 (4), DEOBAND, DIST. SAHARANPUR (APPELLANT) (RESPONDENT) PAN NO. A UWPK2066N ASSESSEE BY : NONE REVENUE BY : SH. BHIM SINGH, SR. DR DATE OF HEARING : 07 .0 7 .2015 DATE OF PRONOUNCEMENT : 10 .07 .2015 ORD ER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.11.2013 OF LD. CIT (A), MUZAFFARNAGAR . 2 . DURING THE COURSE OF HEARING NOBODY WAS PR ESENT ON BEHALF OF THE ASSESSEE. THEREFORE, T HE CASE IS DECIDED EX - PARTE , ON MERIT AFTER HEARING THE LD. DR. 3 . FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX WITHOUT GOING THROUGH THE MERITS OF THE CASE AND AFFIRMING THE O RDER OF THE ITA NO.1761 /DEL /2014 SHIV KUMAR 2 ASSESSING OFFICER WITHOUT DISCUSS ING THE APPELLANTS SUBMISSION IS WRONG AND UNJUSTIFIED. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE REOPENING OF THE CASE IS UNWARRANTED AND UNJUSTIFIED. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF T HE CASE , THE REOPENING OF THE ASSESSMENT WITHOUT APPROVAL OF THE JOINT/ADDITIONAL COMMISSIONER IS ERRONEOUS AND ILLEGAL. 4. THAT THE ADDITION OF RS. 2,00,000 MADE BY THE ASSESSING OFFICER AND CONFIRMING THE SAME BY THE CIT APPEAL IN EX - PARTE ORDER IS WRON G A ND AGAINST THE FACTS. 5. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , SHRI JODH SINGH, FATHER OF THE APPELLANT HAS A SUFFICIENT BALANCE TO GIVE TO HIS SON FOR THE INVESTMENT IN THE FIRM WHICH HAS NOT BEEN APPRECIATED BY THE LOWER AUTHORITIES, MAY K INDLY BE DELETED FROM THE ASSESSED INCOME. 6. THAT THE ADDITION MADE TO THE RETURN INCOME MAY KINDLY BE DELETED. 4 . THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO. 1 RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT GOING THROUGH THE MER ITS OF THE CASE . 5 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON 15.11.2011 , SHOWING INCOME OF RS. 42,380/ - AND AGRICULTURAL I NCOME OF RS. 95,000/ - . THE AO DURING THE ITA NO.1761 /DEL /2014 SHIV KUMAR 3 COURSE OF ASSESSMENT PROCEEDINGS NOTICED THAT THE ASSESSEE HAD INTRODUCED RS. 2,00,000/ - IN HIS CAPITAL ACCOUNT IN THE PARTNERSHIP FIRM M/S LAXMI ASSOCIATES, DEOBAND. HE ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF I NVESTMENT IN THE SAID FIRM. IN RESPONSE THE ASSESSEE STATED THAT THE AMOUNT OF RS. 2,00,000/ - WAS GIVEN OUT OF HIS CAPITAL ACCOUNT AND HE HAD 25 BIGHA AGRICULTURAL LAND AND BAGH. HE ALSO STATED THAT A LOAN OF RS. 95,000/ - WAS TAKEN FROM THE BANK ON HIS KRI SHI CARD . HOWEVER, THE AO DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND MADE THE ADDITION OF RS. 2,00,000/ - . 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE IMPUGNED ORDER EX - PARTE AND CONFIRMED THE ADDITIO N MADE BY THE AO BY OBSERVING THAT THE ASSESSEE S CLAIM OF SOURCE OF FUND WAS COOKED UP STORY AND HAD NO BASIS. 7 . NOW THE ASSESSEE IS IN APPEAL. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) PASSED THE ORDER EX - PARTE. HE SIMPLY MENTION ED THAT THE NOTICE OF HEARING WAS ISSUED ON 22.11.2013 AND THE DATE FOR HEARING WAS FIXED ON 29.11.2013 BUT THERE WAS NO COMPLIANCE. HOWEVER, NOTHING WAS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE AFORESAID NOTICE ISSUED WAS SERVED UPON THE ASSESSEE, WHICH IS MANDATORY. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . I, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, DEEM IT APPROPRIATE TO SET ASIDE THE EX - PARTE ORDER PASSED BY THE ITA NO.1761 /DEL /2014 SHIV KUMAR 4 LD. CIT(A) AND THE CASE IS REMANDED BACK TO HIS FILE TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCE D IN THE COURT ON 10 /07 /2015 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 10 /07 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR