M/s Subhas Chand Upadhyay, Agra V. I.T.O.- 4(2), Agra

ITA 34/AGR/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72792 (ITAT-AGRA)
• Duration Of Justice: 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 21-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 34/AGRA/2014 ASST. YEAR : 2005-06 M/S. SUBHASH CHAND UPADHYAY, VS. INCOME-TAX OFFIC ER, THEKA DESI SHARAB, 4(2), AGRA. BYE PASS ROAD, FATEHPURSIKRI, THE. KIRAWALI, AGRA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ MISHRA, C.A. RESPONDENT BY` : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 04.03.2014 DATE OF PRONOUNCEMENT : 04.03.2014 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-II, AGRA DATED 22.02.2012 FOR THE ASSESSMENT YEAR 2005- 06. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH T HE PARTIES AND PERUSED THE FINDINGS OF AUTHORITIES BELOW. 3. THE AO MADE ADDITION OF RS.60,000/- ON ACCOUNT O F UNEXPLAINED CAPITAL INTRODUCED BY ONE OF THE PARTNERS OF THE ASSESSEE F IRM, SHRI PHOOL SINGH. THE PARTNER HAS INTRODUCED RS.1,00,000/- IN THE ASSESSE E FIRM AND THE AO ACCEPTED HIS ITA NO. 34/AGRA/2014 2 CAPACITY TO MAKE DEPOSIT FOR RS.40,000/- ONLY AND R EST OF THE AMOUNT OF RS.60,000/- WAS ADDED IN THE HANDS OF THE FIRM. THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN DEFAULT ON THE PART OF TH E ASSESSEE IN PUTTING APPEARANCE BEFORE HIM. 4. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, I AM OF THE VIEW, THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T(A). THE LD. COUNSEL FOR THE ASSESSEE PLACED ON RECORD COPY OF THE APPLICATION D ATED 18.11.2013 FILED BEFORE THE LD. CIT(A)-II, AGRA REQUESTING THE FIXATION OF HIS APPEAL BECAUSE NO NOTICE OF HEARING HAS BEEN RECEIVED AND THE ASSESSEE REQUESTE D FOR FIXATION OF APPEAL AT THE EARLIEST BECAUSE THE AO WAS MAKING PRESSURE TO DEPO SIT THE DEMANDED AMOUNT. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASS ESSEE HAS NOT BEEN SERVED WITH ANY NOTICE OF HEARING AND ONLY AFTER MOVING OF THIS APPLICATION, THE ASSESSEE CAME TO KNOW THAT THE APPEAL OF THE ASSESSEE HAS BEEN HE ARD EXPARTE AND DECIDED AGAINST HIM. IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE AS SESSEE MADE A REQUEST FOR EARLY FIXATION OF APPEAL BEFORE THE LD. CIT(A) BECAUSE NO NOTICE WAS SERVED UPON THE ASSESSEE OF THE DATE OF HEARING BEFORE THE LD. CIT( A). THE EXPLANATION OF THE ASSESSEE IS, THEREFORE, ACCEPTED THAT NO NOTICE HAS BEEN SERVED UPON THE ASSESSEE OF THE DATE OF HEARING. FURTHER, THE LD. CIT(A) EVEN I F PROCEEDED EXPARTE HAS NOT GIVEN REASONS FOR DECISION IN THE APPELLATE ORDER AND DIS MISSED THE APPEAL OF THE ASSESSEE ITA NO. 34/AGRA/2014 3 IN DEFAULT OF PUTTING APPEARANCE BEFORE HIM. IT VIO LATES THE PROVISIONS OF SECTION 250(6) OF THE IT ACT. 5. IN VIEW OF THE ABOVE DISCUSSION, THE IMPUGNED OR DER IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF L D. CIT(A)-II, AGRA WITH THE DIRECTION TO RE-DECIDE THE APPEAL OF THE ASSESSEE B Y GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE LD. CIT(A) SHALL DECIDE THE APPEAL IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY