SHRI AJAY BALI , SAMBA V. INCOME TAX OFFICER WARD , SAMBA

ITA 245/ASR/2023

AI Insights

The case involves Ajay Bali, the appellant, who contested the addition of Rs. 7,46,000 to his income for the Assessment Year 2017-18, which was attributed to unexplained cash deposits in old SBN notes during demonetization. The Income Tax Officer (ITO) initially made this addition under section 143(3) of the Income Tax Act, 1961, and it was upheld by the Commissioner of Income Tax (Appeals) in an ex parte order. The appellant argued that he was not given a proper opportunity to be heard and that the addition was unjustified as he had explained the source of the deposits. The tribunal found that the notice for the appeal proceedings might not have been properly served, leading to the decision to remit the case back to the CIT(A) for a fresh hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 114953 (ITAT-AMRITSAR)
• Duration Of Justice: 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-09-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 24-08-2023
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 69; 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No.245/Asr/2023 Assessment Year: 2017-18 Ajay Bali Bali Communication Bari Brahmana, Samba 181133 Jammu & Kashmir. [PAN: -ARDPB1050B] (Appellant) Vs. ITO-Ward, Samba. (Respondent) Appellant by Sh. P. N. Arora, Adv. Respondent by Sh. Manoj Aggarwal, Sr. DR Date of Hearing 12.09.2023 Date of Pronouncement 20.09.2023 ORDER Per:Anikesh Banerjee, JM: The instant appeal of the assessee was filed against the order of the ld. Commissioner of Income Tax (Appeals), NFAC, Delhi,[in brevity the ‘CIT (A)’], order passed u/s 250 of the Income Tax Act 1961, [in brevity ‘the Act’] for A.Y. 2017-18. The impugned order was emanated from the order of the ld. ITO Ward- Samba, [in brevity ‘the AO’] order passed u/s 143(3)of the Act. I.T.A. No.245/Asr/2023 Assessment Year: 2017-18 2 2. The assessee filed the appeal with delay of 40 days. The assessee placed that the condonation petition with OPD slip of Ayushman Bharat Comprehensive Primary Health Care and as a proof of his illness and the affidavit of the assessee. The ld. AR explained the delay for filing appeal due to medical emergency. The ld. DR had made the objection about the condonation of delay. But the interest of justice the delay of 40 days is condoned. 3. The assessee has taken the following ground: “1. That the Assessment Order dated 18/12/2019 passed by the Income Tax Officer, WardSamba u/s 143(3) of the Income Tax Act, 1961 and the order of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi thereby confirming the order of the Assessing Officer (AO) are both against the facts of this case and are untenable under the law. 2. That the AO has grossly erred in making the addition of Rs.7,46,000/- by invoking theprovisions of section 69 of the IT Act, 1961. Similarly, the Ld. CIT(A) has also grossly erred in confirming the same without applying his mind and without appreciating the facts of this case. 3. That no reasonable and proper opportunity of being heard was allowed by the AssessingOfficer before making the addition of Rs.7,46,000/- by invoking the provisions of section 69 of the IT Act, 1961. The provisions of section 69 are not at I.T.A. No.245/Asr/2023 Assessment Year: 2017-18 3 all applicable to the present facts and circumstances of this case. As such the assessment order passed is liable to be cancelled. Further, the worthy CIT(A), NFAC, Delhi has also grossly erred in confirming the addition made by the AO without any rhyme & reason. As such the order passed by the Learned CIT(A) is also bad in the eyes of law and the same is also liable to be cancelled. 4. That the AO as well as the CIT(A) have not appreciated that no addition at Rs.7,46.000'-is at all called for and the Ld. CIT(A) without applying his mind and without appreciating the facts of this case has confirmed the addition made by the A.O. The CIT(A) did no: appreciate that the assessee never received any notice of hearing from the Ld. CIT( A» As such the worthy CIT(A) was not at all justified in deciding the case ex-parte andthe order passed is bad in the eyes of law and the same is liable to be cancelled. 5. That the worthy CIT(A) while deciding the case ex-parte has not decided the case on legal issue as well as on merits. As such the worthy CIT(A) was not at all justified in deciding the case ex-parte and as such the order passed is bad in the eyes of law and the same is liable to be cancelled. 6. That the CIT(A) did not appreciate that the assessee was running Mobile Recharge shop under the name and style of Bali Communications at Bari Brahmna, Samba, Jammu. The assessee has duly submitted the reply on 03-12-2019 thereby I.T.A. No.245/Asr/2023 Assessment Year: 2017-18 4 stating that the assessee is carrying on trading of Recharge Coupons and Local Area Payment Unit (LAPU). It was duly explained before the AO that the source of deposit is out of cash in hand as on 08/11/2016 from the business which is being done. 7. That the authorities below did not appreciate that the assessee has shown the sales to thetune of Rs.30,29,200/- and the return was filed u/s 44AD, copy of which is made part and parcel of grounds of appeal. 8. That the AO has allowed the credit of Rs.2,50,000/-. There was no reason and occasionfor the CIT(A) for sustaining the addition of Rs.7,46,000/- by the AO. Thus, the worthy CIT(A) should have deleted the addition. Alternatively, the addition made is very high & excessive. 9. That the AO did not appreciate the reply submitted along-with bank certificate issued on06-12-2019 thereby proving that the assessee has deposited the old currency during demonetization which was lying with him. Thus, the AO was not at all justified in making the addition. As such the addition made may be deleted. Alternatively, the addition made is very high & excessive. I.T.A. No.245/Asr/2023 Assessment Year: 2017-18 5 10. That theassessee should have allowed the credit of lifetime savings from time to timeand also the credit of amount received from other family members. 11. That any other grounds of appeal which may be argued at the time of hearing of the appeal.” 4. Brief fact of the case is that the assessment was completed u/s 143(3) with addition amount of Rs.7,46,000/- in relation to the deposited cash in old SBN notes amount of Rs.7,46,000/- during demonetisation. The assessee was unable to explain the source of the old SBN currency. So, the entire amount deposited in the bank was added back with the total income of the assessee. Aggrieved assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) passed the ex parte order without considering the merit of the case and upheld the assessment order. Being aggrieved, the assessee filed an appeal before us. 5. The ld. AR vehemently argued and placed that no notice was received by the assessee during appeal proceeding. The ld. AR invited our attention in para 3 of the appeal order which is reproduced as below: “3. Facts of the case: The appellant, an individual, its filed the return of income for the A.Y. 2017-18, on 25/01/2018, declaring total income at Rs. 2,95,400/-. The AO passed the order u/s 143(3) of the IT Act, 1961 and made disallowance of Rs. 7,46,000/- u/s 69. Aggrieved by the said order, appellant is on appeal. I.T.A. No.245/Asr/2023 Assessment Year: 2017-18 6 4. The hearing in this case was fixed on the following dates with due intimation electronically. Sl. No. Date of Notice Date of Hearing Remarks 1. 08/02/2021 18/02/2021 No Reply 2. 31/05/2022 07/06/2022 No Reply 3. 26/09/2022 03/10/2022 No Reply 4. 25/10/2022 31/10/2022 No Reply 5.1 The ld. AR placed that the date of notice and date of hearing are mentioned in appeal order but there is no indication about the date of issue of notice that is the most important ingredient related to service of notice. The assessee was unable to submit the documents before the ld. CIT(A). So, the ld. AR prayed for one more opportunity to submit the documents before the ld. CIT(A). 6. The ld. DRvehemently argued and placed that in the modern technology the date of notice almost the date of service of the notice. The notice, it is automatically served to the assessee’s portal. But no evidence was able to submit before the bench related to the service of the notice. 7. We heard the rival submission and considered the documents available in the record. It is factually correct that the assessee was allowed several dates for hearing before the ld. CIT(A). The ex parte order was passed without considering any merit. Accordingly, the revenue was unable to submit the details about the issuance of the notice which is vital essence for service of notice to the assessee. In view of our consideration, we remit back the matter to the file of the ld. CIT(A) for I.T.A. No.245/Asr/2023 Assessment Year: 2017-18 7 further adjudication afresh. The assessee should get another opportunity in the interest of natural justice. We are, therefore, of the opinion that interest of justice would be sub served if the impugned order is set aside and the matters are remitted back to the file of the ld. CIT(A) for consideration thereof afresh. We are not expressing any views on the merits of the case so as to limit the appellate procedure before the Ld. CIT(A). Theassessee should be diligent in set aside proceeding. Needless to say, the assessee should get a reasonable opportunity of hearing for setting aside proceedings. 8. In the result, the appeal of the assessee ITA No. 245/Asr/2023 is allowed for statistical purposes. Order pronounced in the open court on 20.09.2023 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE ) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order