PINKI GUPTA, GHAZIABAD V. ITO, WARD -2(2)(1), GHAZIABAD

ITA 2127/DEL/2023

AI Insights

The case involves Pinki Gupta, the appellant, who filed an appeal against the order of the CIT(A), National Faceless Appeal Centre, Delhi, concerning the Assessment Year 2016-17. The primary contention was the dismissal of the appeal by the CIT(A) in limine, without proper hearing, as the assessee claimed not to have received any notice of the hearing. The Income Tax Officer (ITO) had earlier made an addition of Rs.45,40,900 as unexplained cash credit under section 68 of the Income-tax Act, 1961, based on re-assessment proceedings initiated under section 147. The Tribunal, considering the principles of natural justice and the fact that the CIT(A) had dismissed the appeal ex parte, decided to set aside the CIT(A)'s order and remand the matter back for a fresh hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115858 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-09-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 24-07-2023
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARUN KUMAR AGGARWAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Earning of tax free income; Borrowed satisfaction; Set aside; Capital Gains
• Section: 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA No.2127/Del/2023 Assessment Year: 2016-17 Pinki Gupta, 11-C/208, Nehru Nagar, Ghaziabad, Uttar Pradesh – 201002. PAN: ADUPG9256F Vs ITO, Ward-2(2)(1), Ghaziabad. (Appellant) (Respondent) Assessee by : Shri Arun Kumar Aggarwal, Advocate Revenue by : Shri Om Parkash, Sr. DR Date of Hearing : 06.09.2023 Date of Pronouncement : 14.09.2023 ORDER This appeal by the assessee pertaining to Assessment Year 2016-17 is filed against the order of the ld.CIT(A), National Faceless Appeal Centre, Delhi, dated 30 th January, 2023. The assessee has raised the following grounds of appeal:- “1. Because, order of ld. CIT (Appeals) is bad in law and against the facts and circumstances of the case. 2 Because, ld, CIT (Appeals) erred in dismissing the appeal summarily on the line of in limine, without providing proper opportunity of being heard as assessee was prevented with sufficient cause in not appearing on the date of hearing in as much no notice of hearing was served/received on address for communication given in appeal memo. ITA No.2127/Del/2023 2 3 Because, ld. CIT(A) manifestly wrong in not even considering any of the jurisdictional grounds, thus order is against the provisions of section 250/251 of Act. 4 Because, ld, CIT(A) erred in not appreciating the fact ld. AO passed order mechanically/ hurriedly without providing proper opportunity of being heard, wherein neither objection raised/material places considered nor request to provide for relevant material is acceded when law is settled that taxes are to be levied fairly and not to be punitive. 4 Because, ld. CIT(A) failed to appreciate that neither jurisdictional notice u/s 148 is valid which is issued merely on borrowed satisfaction nor jurisdictional condition for issuance of notice are complied which is issued without any application of mind of AO/approving authority, thus notice u/s 148 itself is void. 5 Because, ld, CIT(A) further failed to appreciate that on merits that addition is made as per premeditated mind but contrary to evidences and explanation placed on record which is against the basic tenet of law. Therefore, it is very respectfully prayed that this Hon’ble Court may kindly be pleased to quash the order of ld. lower authority with the directions as deemed fit or alternatively to hear the matter on other legal/merit grounds.” 2. The facts giving rise to the present appeal are that the assessee has e-filed the return of income declaring an income of Rs.3,45,300/- and has claimed long term capital gains exempt income of Rs.60,40,332/- u/s 10(38) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’). On the basis of information received and on the belief that an income of Rs.45,40,900/- had escaped assessment, the AO initiated re-assessment proceedings u/s 147 of the Act and notice u/s 148 of the Act dated 30.03.2021 was issued. The AO made an addition of Rs.45,40,900/- treating the same as unexplained cash credit u/s 68 of the IT Act. Aggrieved by this, the assessee preferred appeal before the CIT(A) who dismissed the appeal ex parte qua the assessee. ITA No.2127/Del/2023 3 3. At the outset, the ld. Counsel for the assessee stated that the ld. CIT (A) erred in dismissing the appeal in limine, without providing proper opportunity of being heard, as assessee had sufficient cause that prevented the assessee from appearing on the date of hearing inasmuch as no notice of hearing was received at the address for communication given in appeal memo. It was also submitted that the jurisdictional ground was not considered at all by the ld. CIT(A) and the ld.CIT(A) also erred in not appreciating the fact that the ld. AO passed the order mechanically/hurriedly without providing adequate opportunity and without considering the objection raised/material placed. It was, therefore, submitted that another opportunity of hearing may be provided to the assessee before the ld.CIT(A). 4. On the other hand, the ld. DR opposed the submissions of the assessee and supported the orders of the authorities below. He contended that the assessee should not be given the benefit of his own negligence. 5. I have heard the rival contentions and perused the material available on record. There is no dispute with regard to the fact that the ld.CIT(A) has passed the orders ex parte qua the assessee. It is the contention of the assessee that the assessee had not received the notice of hearing. Therefore, looking to the facts available on record and also in view of the principles of natural justice, I set aside the impugned order and restore the issue to the file of the ld.CIT(A) for deciding the ITA No.2127/Del/2023 4 same afresh, after providing adequate opportunity of hearing to the assessee. The grounds raised by the assessee are allowed for statistical purposes. 6. In the result, the appeal of the assessee is allowed for statistical purposes only. Order pronounced in the open court on 14.09.2023. Sd/- (KUL BHARAT) JUDICIAL MEMBER Dated: 14 th September, 2023. dk Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi