Dinesh Kumar Lahoti, Hyderabad V. Income Tax Officer , Ward-8(2), Hyderabad

ITA 1777/Hyd/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 2691 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 08-10-2018
• Assessment Year: 2014-2015
• Appeal Filed On: 30-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Assessee Lawyers: Y V BHANU NARAYAN RAO
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO. 1777 /HYD/ 2017 ASSESSMENT YEAR: 20 16 - 17 DINESH KUMAR LAHOTI, HYDERABAD. PAN: AAZPL 8609 H VS. ITO, WARD - 8(2), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI Y. V. BHANU NARAYAN RAO REVENUE BY: SRI NILANJAN DEY, DR DATE OF HEARING: 08 . 10 .2018 DATE OF PRONOUNCEMENT: 12 . 10 .2018 ORDER PER SMT. P. MADHAVI DEVI, J.M.: THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2016 - 17 FILED AGAINST THE ORDER OF THE CIT(A) - 2, HYDERABAD DATED 31.07.2017. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE O RDER PASSED BY THE LEARNED CIT(A) IS ERRONEOUS AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEAL FILED BY THE ASSESSEE FOR NON - APPEARANCE ON THE GIVEN DATE OF HEARING. 3. THE LD. CIT (A) OUGHT NOT HAVE UPHELD THE ADDITION MADE BY THE A.O. U/S 69A OF THE IT ACT, 1961 OF AN AMOUNT OF RS. 99,02,613/ - BEING THE ENTIRE AMOUNT OF CASH DE3POSITED IN THE SAVINGS BANK ACCOUNT FOR THE YEAR UNDER REVIEW. 4. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) ERRED IN TREATING THE ENTIRE AMOUNT OF CASH OF RS. 99,02,613/ - DEPOSITED IN THE BANK AS INCOME IGNORING THE BASIC FACT THAT ONLY INCOME ELEMENT NEEDS TO BE TAXED. 2 2. FURTHER, ASSESSEE HAS ALSO RAISED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE TREATED THE AMOUNT OF RS. 99,02,613/ - BEING THE ENTIRE AMOUNT OF CASH DEPOSITED IN THE SAVIN GS BANK ACCOUNT FOR THE YEAR UNDER REVIEW AS DIFFERENCE IN TURNOVER / GROSS RECEIPTS AS SHOWN IN ITR AND DEPOSITS INTO THE BANK. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE PROFIT MARGIN @ 8% OF THE ABO VE SAID AMOUNT IN THE ABSENCE OF MAINTENANCE OF PROPER BOOKS OF ACCOUNT INSTEAD OF TREATING THE ENTIRE AMOUNT AS INCOME U/S 69A OF THE I.T. ACT, 1961. 3. DURING THE COURSE OF HEARING, IT IS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THOUGH THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT, IT WAS AN EX - PARTE ORDER WITHOUT GIVING THE ASSESSEE ANY OPPORTUNITY OF SUBMITTING THE EXPLANATION FOR THE SOURCES O F CASH DEPOSITS IN THE ASSESSEES BANK ACCOUNT. HE FURTHER SUBMITTED THAT EVEN BEFORE THE CIT(A), THE ASSESSEE HAD NOT BEEN GIVEN SUFFICIENT OPPORTUNITY OF REPRESENTATION. HE POINTED OUT THAT THE CIT(A) HAD GIVEN ONLY TWO DATES OF HEARING OF THE CASE AND HAS DISMISSED THE APPEAL FOR NON - APPEARANCE, WITHOUT DISCUSSING ANYTHING ON THE MERITS. H E ALSO REFERRED TO THE PAPER BOOK FILED BEFORE US TO SUBMIT THAT ALL THESE DOCUMENTS FILED THEREIN ARE NECESSARY FOR DISPOSAL OF THE ASSESSEES APPEAL. HE THEREFORE, PRAYED THAT TH E ISSUE MAY BE REMITTED FOR RE - CONSIDERATION OF THE ISSUE ON MERITS. 4. LEARNED DEPARTMENTAL REPRESENTATIVE WAS ALSO HEARD. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT THE A.O. AS WELL AS THE CIT(A) HAVE PASS ED THE ORDER EX - PARTE . B EFORE THE CIT(A) , THE CASE WAS FIRST POSTED FOR HEARING ON 19.06.2017 AND SECONDLY ON 31.07.2017, ON WHICH 3 DATE THE FINAL ORDER WAS PASSED BY THE CIT(A) . THEREFORE, WE ARE SATISFIED THAT THE ASSESSEE HAS NOT BEEN AFFORDED A REASONA BLE OPPORTUNITY OF BEING HEARD. FURTHER , ASSESSEE HAS ALSO FILED PAPER BOOK CONTAINING DOCUMENTS PERTAINING TO THE PRESENT APPEAL WHICH NEEDS VERIFICATION. IN VIEW OF THE SAME, WE DEEM IT FIT AND PROPER TO REMIT THE ISSUE TO THE FILE OF THE A.O TO CONSIDE R THE ISSUE AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, GROUNDS OF APPEAL AND THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RE SULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT O N 12 TH OCTOBER , 2018. SD/ - SD/ - (S. RIFAUR RAHMAN) (P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: OCTOBER , 2018 OKK COPY TO: - 1) Y.V. BHANU NARAYANA RAO, CHARTERED ACCOUNT, 10 - 2 - 195, OPP. DECCAN CLUB, EAST MAREDPALLY, SECUNDERABAD 500026. 2) THE INCOME TAX OFFICER, WARD - 8(2), HYDERABAD. 3) THE CIT(A) - 2 , HYDERABAD 4) THE PR. CIT - 2 , HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE