SHRI MOHMMAD FAROOQ MALIK, JAMMU V. INCOME TAX OFFICER WARD-1(2), JAMMU

ITA 268/ASR/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4738 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 23-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 44AD; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR (CAMP BENCH AT JAMMU) BEFORE: SHRI. N. K. SAINI, HONBLE VICE PRESIDENT A ND SHRI R.L. NEGI, HONBLE JUDICIAL MEMBER ITA NO. 268/ASR/2019 ASSESSMENT YEAR : 2008-09 MOHD. FAROOQ MALIK, H.NO. 158, SECTOR-3, VASANT VIHAR, TRIKUTA NAGAR, JAMMU VS. THE ITO WARD 1(2), JAMMU PAN NO. ANDPM8843R APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : RAKESH KUMAR, D.R. DATE OF HEARING : 04/02/2021 DATE OF PRONOUNCEMENT : 04/02/2021 ORDER PER N. K. SAINI, VICE PRESIDENT : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 13/03/2019 OF LD. CIT(A), JAMMU. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. ALTHOUGH, AN APPLICATION DATED 21.01. 2021 HAS BEEN MOVED FOR ADJOURNMENT BY THE ASSESSEE, HOWEVER, CONSIDERING T HE SMALLNESS OF THE MATTER, THE APPEAL IS DECIDED EX-PARTE QUA THE ASSESSEE AFT ER CONSIDERING THE SUBMISSIONS OF THE LD. DR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L; 1) THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS ), JAMMU HAS ERRED IN LAW & ON FACTS IN DISMISSING THE APPEAL OF THE A SSESSEE EX-PARTE FOR NON PURSUING THE APPEAL BY THE ASSESSEE BEFORE HIM. 2) THAT THE ASSESSEE IS A SMALL ILLITERATE TRADER AND HAS TO STAY OUTSTATION FOR LONG PERIODS IN ORDER TO PURSUE THE TRADING OF SHAW LS ETC. & THE NOTICE DID NOT REACH HIM. 2 3) THAT THE APPELLANT PRAYS THAT THE APPEAL MAY KINDLY BE SENT BACK TO THE FILE OF WORTHY COMMISSIONER OF INCOME TAX (APPEALS) , JAMMU FOR FRESH DISPOSAL ON MERITS. 4) ALTERNATIVELY THE INCOME OF THE ASSESSEE MAY BE DIR ECTED TO BE COMPUTED U/S 44AD OF THE INCOME TAX ACT, 1961 AS BO TH THE ASSESSING OFFICER & COMMISSIONER OF INCOME TAX (APPEALS), JAMMU HAVE FA ILED TO APPRECIATE THAT CASH DEPOSITS REPRESENT SALE PROCEED OF BUSINESS. 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND N O. 1 RELATES TO THE EXPARTE ORDER PASSED BY THE LD. CIT(A). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE BASIS OF THE INFORMATION THAT THE ASSESSEE DEPOSITED CASH OF RS. 17,77,000/- IN HIS BANK ACCOUNT INITIATED THE PROCEEDINGS UNDER SECTION 147 R.W.S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). SINCE THERE WAS NO COMPLIANCE FROM THE ASSESSEE SIDE, THE A.O. PASSED THE IMPUGNED ORDER E XPARTE AND ASSESSED THE INCOME AT RS. 24,41,500/- WHICH WAS THE AMOUNT DEPO SITED IN THE BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH J&K BANK LTD. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE IMPUGNED ORDER EXPARTE BY OBSERVING THAT THE VARIOUS NOTICES WERE ISSUED TO THE ASSESSEE BUT THERE WAS NO COMPLIANCE. 6. NOW THE ASSESSEE IS IN APPEAL. 7. DURING THE COURSE OF HEARING THE LD. DR STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND FURTHER SUBMITTE D THAT CONSIDERING THE NON COOPERATIVE ATTITUDE OF THE ASSESSEE THERE WAS NO A LTERNATIVE EXCEPT TO PASS THE IMPUGNED ORDER EX-PARTE. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EXPARTE. H E SIMPLY STATED THAT AFTER 3 SEVERAL OPPORTUNITIES PROVIDED BY THE A.O. THE ASSE SSEE FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSIT. HOWEVER NOTHING IS BROUGHT ON RECORD AS TO WHETHER THE SAID NOTICES WERE SERVED UPON THE ASSESSEE OR NOT. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUD I ALTERAM PARTEM . 9. WE THEREFORE BY KEEPING IN VIEW THE PRINCIPLES O F NATURAL JUSTICE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF LD. AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALS O DIRECTED TO CO-OPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENT. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED ON 04/02/2021). . SD/- SD/- (R. L. NEGI) (N. K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 04/02/2021 AG COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, CAMP BENCH, JAMMU 6. GUARD FILE.