Gaya Prasad Genda, Kanpur V. Income Tax Officer-1(1), Kanpur

ITA 325/LKW/2014

• Counselvise Citation: 32523714 RSA 2014
• Duration Of Justice: 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-03-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 28-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO. 325/LKW/2014 ASSESSMENT YEAR: 2001 - 02 GAYA PRASAD GENDA PROP. AMAR NATH & CO. 51/7, RAMGANJ, KANPUR V. INCOME TAX OFFICER 1(I) KANPUR T AN /PAN : AAUPG6746M (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. K. C. MEENA, D.R. DATE OF HEARING: 17 03 201 5 DATE OF PRONOUNCEMENT: 26 0 3 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH AR E AS UNDER:- 1. BECAUSE THE ORDER PASSED BY THE CIT(A) DISMISSING T HE APPEAL IN DEFAULT IS CONTRARY TO FACTS, BAD IN LAW AND BE SET ASIDE. 2. BECAUSE THERE BEING NO SERVICE OF NOTICE ON THE ASS ESSEE, THE ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE IN NOT COMPLYING THE SAME. 3. BECAUSE THE ORDER PASSED BY THE CIT(A) BEING A NON- SPEAKING ORDER, WITHOUT CONSIDERING THE MATERIAL AVAILABLE O N RECORD AS WELL AS THE STATEMENT OF FACTS AND GROUNDS OF APPEA L, THE ACTION OF THE CIT(A) IN DISMISSING THE APPEAL IS TOTALLY U NWARRANTED AND UNJUSTIFIED. :-2-: 4. BECAUSE THE CIT(A) WAS NOT JUSTIFIED IN UPHOLDING A DDITION OF RS.2,00,000/- IN THE NAME OF SURAJ RAJ NAHATA AND RS.1,00,000/- IN THE NAME OF SANJAY NAHATA, BEING D EPOSITS RECEIVED FROM THEM, AS UNEXPLAINED INCOME FROM UNDI SCLOSED SOURCES U/S.68 OF THE ACT, 1961. 5. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN RELYING UPON THE STATEMENT ON OATH OF SURAJ RAJ NAHATA/SANJ AY NAHATA RECORDED BY THE AO IN THE ABSENCE OF THE ASSESSEE, AND WITHOUT GIVING THE ASSESSEE AN OPPORTUNITY TO REBUT THE SAM E, THEREBY HAS UPHELD THE ADDITION OF RS.2,00,000/- IN THE NAM E OF SURAJ RAJ NAHATA AND RS.1,00,000/- IN THE NAME OF SANJAY NAHATA, WHICH ADDITION BEING BAD IN LAW, WITHOUT JURISDICTI ON BE DELETED. 6. BECAUSE THE CASH CREDITS OF RS.2,00,000/- IN THE NA ME OF SURAJ RAJ NAHATA AND OF RS.1,00,000/- IN THE NAME OF SANJ AY NAHATA' CAN NOT BE TREATED AS UNEXPLAINED IN AS MUCH AS CON FIRMATIONS WERE FILED BY THEM CERTIFYING THE TRANSACTION, THRO UGH ACCOUNT PAYEE CHEQUES, ASSESSED TO INCOME TAX, DISCLOSED IN THEIR RETURN, AND IF ANY WRITTEN SUBMISSION CONTRARY TO I TS CONFIRMATIONS WERE FILED BY THE DEPOSITORS BEFORE A O, NO ADVERSE VIEW AGAINST THE APPELLANT ASSESSEE MAY BE TAKEN UNTIL AND UNLESS AN OPPORTUNITY TO SUBMIT EXPLANATION IN RESPECT THERETO IS PROVIDED. HOWEVER DEPOSITS OF MONEY THRO UGH CHEQUES HAVE NOT BEEN DENIED BY THEM, THEREFORE SAI D CASH CREDITS CANNOT BE TREATED AS UNEXPLAINED AND NO ADD ITIONS TOWARDS INCOME AS INCOME FROM UNDISCLOSED SOURCE AR E JUSTIFIED, MORE SO WHEN THE DEPOSITS HAVE BEEN REPAID WITH INT EREST. 7. BECAUSE THE CIT(A) HAS ERRED ON FACT AND IN LAW IN UPHOLDING THE DISALLOWANCE OF INTEREST PAYMENT TO DEPOSITORS AMOUNTING TO RS.24,500/- AND RS.12,250/-WITHOUT CONSIDERING T HE FACTS AND CIRCUMSTANCES OF THE CASE. 8. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN' LAW I N UPHOLDING :-3-: THE DISALLOWANCE OF COMMISSION PAID TO GAYA PRASAD GENDA HUF RS.67,000/- AND AMAR NATH GENDA HUF RS.51,000/-. SU CH DISALLOWANCE ARE CONTRARY TO FACTS, BAD IN LAW BE D ELETED. 9. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE DISALLOWANCE OUT OF VEHICLE EXPENSES AND DEPREC IATION ON CAR AMOUNTING TO RS.9,087/- AND RS.7,852/- BEING 17 5TH OF THE TOTAL CLAIM. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR T HE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A ) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL OF THE AS SESSEE ON MERIT WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASI DE AND RESTORED TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERIT AFTER AFFOR DING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD. D.R. OPPOSED THE CONTENTIONS OF THE LD. COU NSEL FOR THE ASSESSEE WITH THE SUBMISSION THAT THE ASSESSEE DID NOT APPEAR DESPITE AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT( A), WE FIND THAT THE LD. CIT(A) HAS FIXED TWO DATES OF HEARING, BUT IT IS NOT CLEAR FROM HIS ORDER WHETHER NOTICE OF HEARING WAS EVER SERVED UPO N THE ASSESSEE. FROM A PERUSAL OF THE ORDER OF THE LD. CIT(A), WE FIND T HAT PROPER OPPORTUNITY WAS NOT AFFORDED TO THE ASSESSEE TO PROSECUTE HIS C ASE. THEREFORE, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, ONE MO RE OPPORTUNITY SHOULD BE AFFORDED TO THE ASSESSEE. ACCORDINGLY, WE SET ASID E THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DI RECTION TO DISPOSE OF THE :-4-: APPEAL ON MERIT AFTER AFFORDING AN OPPORTUNITY OF B EING HEARD TO THE ASSESSEE, BY PASSING A REASONED ORDER. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED ON THE CAPTIONED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:26 TH MARCH, 2015 JJ:1703 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR