Darvinkumar Jethabhai Gajera, Surat V. ITO, Ward-2(3)()1), Surat

ITA 362/SRT/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 2569 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-12-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 11-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Unexplained cash credit; Non compliance
• Section: 68; 148; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND Dr. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No.362/SRT/2019 (AY 2009-10) (Hearing in Virtual Court) Darvinkumar Jethabhai Gajera, 255, Chhitu Nagar Society, Nr.Sita Nagr, PUna Gam, Surat. PAN: AKEPG 5669 H Vs. The Income Tax Officer, Ward-2(3)(1), Surat. Applicant Respondent Assessee by None Revenue by Mrs. Anupama Singla – Sr.DR Date of hearing 20.12.2021 Date of pronouncement 24.12.2021 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the orders of ld. Commissioner of Income Tax (Appeals)-1, Surat, arising out of assessment order under section 143(3) of the Income Tax Act, 1961 dated 10.10.2016 for the Assessment Year (AY) 2009-10. The assessee raised the following grounds of appeal: “1. On the facts and circumstances of the case as well as law on the subject, the learned CIT(A’s) erred in dismissing the appeal, without considering the facts properly. 2. The notices were sent on registered email id of the assessee. But the said email id was of the disgruntled accountant, who had not responded to the notices. Thus the non compliance was unintentional and bonafide. 3. The learned CIT (A’s) had given two opportunities of being heard. The Appellant is uneducated person. He neither has the knowledge of law nor understanding of the importance of documents / notices. Therefore, non compliance was unintentional and bonafide. 4. Therefore, under the Principles of Natural Justice appellant should be given opportunity to present his case. ITA No.362/SRT/2019 Darvinkumar Jethabhia Gajera (AY 2009-10) 2 5. Further, the learned AO has also not responded to the ITNS Form No.35 and 51.” 2. Brief facts of the case are that assessee has not filed his return of income for the assessment year (A.Y.) 2009-10. The assessing officer (AO) received information through ITS details that the assessee had deposited cash in ICICI Bank amounting to Rs.12,84,850/- during the year under consideration. On the basis of such information the AO has reason to believe that the income of the assessee escaped from assessment. The AO recorded reasons of reopening and issued notice under section 148 of the Act dated 30.03.2016. the notice under section 148 was served upon the assessee. In response to the notice, the assessee filed his return of income on 27.04.2016 for the year under consideration declaring total income of Rs.1,38,960/-. On perusal, of details furnished with return of income that AO noted that the assessee has not offered Rs.12,84,850/- for taxation. The AO issued notice under section 142(1) of the Act dated 20.05.2016 to furnish the bank statement. In response to the said notice, the Representative of assessee attended on 12.07.2016, wherein he was directed to submit the proof of cash deposits, bank statement, bank book, cash book, nature of business during the year and proof of business activities and also to submit the Bank Statement for the period 01.04.2008 to 31.03.2010 by 18.07.2016. The AO recorded that no compliance by assessee, therefore, a fresh notice under section 142(1) of the Act was issued on 12.08.2016 on the assessee. The AO recorded that again as there ITA No.362/SRT/2019 Darvinkumar Jethabhia Gajera (AY 2009-10) 3 is no compliance was made. Thus, a final a show cause notice dated 05.09.2016 was issued as to why the addition of Rs.12,84,866/- should not be made to his total income. The AO again recorded that again no compliance was made. The AO recorded that he was having definite information about the undisclosed transaction made by the assessee. The AO made addition under section 68 of Rs. 12,84,866/- on account of unexplained deposit. On appeal before the ld.CIT(A), the action of AO was confirmed. The ld. CIT(A) confirmed the addition in the ex-parte order dated 20.06.2018. Thus, further aggrieved, the assesse filed the present appeal before this Tribunal. 3. None appeared on behalf of assessee despite service of notice of hearing through RPAD. Therefore, we left no option except to decide the case after hearing the submissions of learned Departmental Representative (DR) for the revenue and on the basis of material available on record. 4. The ld. Senior DR for the revenue submits that the assessee made no compliance before ld CIT(A), despite granting numerous opportunities, even before the AO, the assessee has not furnished requisite details called during assessment. The ld CIT(A) has no option except to decide the appeal on the basis of material available on record. The ld. CIT(A) on the basis of record available before him concluded that the assessee is not interested in filing any details during the appellate proceedings. 5. We have considered the rival submission of ld.Sr.DR for the Revenue and have gone through the orders of lower authorities. We find that the AO while ITA No.362/SRT/2019 Darvinkumar Jethabhia Gajera (AY 2009-10) 4 passing the assessment order made addition on account of unexplained credits in Bank under section 68 of the Act. The ld. CIT(A) confirmed the action of AO by taking view that there is non-compliance on the part of the assessee. Though, neither the assessee nor his representative appeared despite the service of notice. We instead of going into controversy, whether the assessee defaulted in attending the proceedings before the ld.CIT(A). We find that the order of the ld.CIT(A) is not in accordance with mandate of section 250(6) of the Income Tax Act. Section 250(6) of the Act mandates that the Ld. CIT(A) while deciding the appeal is required to pass order on points of determination (grounds of appeals), decision therein on and reasons for such decision. Therefore, considering the facts and circumstances of the case, the appeal of the assessee is restored back to the file of the ld.CIT(A) to decide all the grounds of appeal on merit in accordance with law. The assessee is directed to appear before the ld.CIT(A) as and when the date of hearing is fixed and to provide all necessary evidence and information without any further delay and not to seek the adjournment without any valid reasons. Accordingly the ground of appeal by assessee is allowed for statistical purpose. 6. In the result, appeal of the Assessee is allowed for statistical purpose. Order announced on 24 December, 2021 at the time of hearing in virtual court hearing. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 24/12/2021 / SGR* Copy to: ITA No.362/SRT/2019 Darvinkumar Jethabhia Gajera (AY 2009-10) 5 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By order / / TRUE COPY / / Sr.Pvt. Secretary, ITAT, Surat