Rajendra Singh, Bulandshahr V. ITO, Ward-3(3), Bulandshahr

ITA 3884/DEL/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 5396 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDRA MEENA
• Assessee Lawyers: VAIBHAV GUPTA
• Keywords: Opportunity of being heard
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER I.T.A. NO. 3884/DEL/2018 A.Y.: 2009-10 SHRI. RAJENDRA SINGH, 162, DEVI PURA, BULANDSHAHR, U.P. VS. ITO, WARD - 3(3), BULANDSHAHR [APPELLANT] [RESPONDENT] ASSESSEE BY: SH. VAIBHAV GUPTA, CA RESPONDENT BY: SH. SURENDRA MEENA, SR. DR DATE OF HEARING: 04 10 2018 DATE OF PRONOUNCEMENT: 09 10 2018 O R D E R N.K. SAINI, A.M: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 28.03.2018 OF THE LEARNED CIT(A), GHAZIABAD. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL:- 1. THE LD. ASSESSING OFFICER WAS ERRED IN TAKING S HARE OF THE ASSESSEE AT 9.5% INSTEAD OF 7.5%. 2. THAT THE LD. ASSESSING OFFICER WAS ERRED IN MAKI NG AN ADDITION OF RS. 3,13,170/- ON ACCOUNT OF UNEXPLAINED SOURCE OF INVE STMENT. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) WAS ERRED IN NOT TAKING INTO CONSIDERATION THE ORDER OF LD. ASSESSIN G OFFICER WARD-3(1), BULANDSHAHR WHO HAS TAKEN THE SHARE OF CO-PARTNER A T THE RATE OF 7.5%. 4. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND LD. ASSESSING OFFICER WARD-3(3), BULANDSHAHR IS AGAINST LAW AND FACTS AND FACTS OF THE CASE AND BASED ON SURMISES AND CONJECTURE. ITA NO. 3884/DEL/2018 2 2. FACTS OF THE CASE IN BRIEF ARE THAT THE AO ON TH E BASIS OF AIR INFORMATION ISSUED NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 TO THE ASSESSEE. IN RESPONSE THE ASSESSEE FILED THE RETURN OF INCOME ON 27.5.2016 DECLARING AN INCOME OF RS. 40,000/-. THE AO, HOWEVE R MADE THE ADDITION OF RS. 3,13,170/- BY OBSERVING THAT THE ASSESSEE FAILED TO EXPLAIN THE EXACT SOURCE OF INVESTMENT AND ALSO COULD NOT PRODUCE ANY SUPPORTIV E MATERIAL. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LE ARNED CIT(A) WHO DISMISSED THE APPEAL BY PASSING THE EX PARTE ORDER. 3. NOW THE ASSESSEE IS IN APPEAL. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE LEARNED CIT(A) PASSED AN EX PARTE ORDER WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD. THEREFORE, THE MATTER M AY BE RESTORED TO THE LEARNED CIT(A). IN HIS RIVAL SUBMISSIONS, THE LEARN ED SR. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LEARNED CIT(A). 5. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESEN T CASE, IT IS NOTICED THAT THE LEARNED CIT(A) MENTIONED IN PARA 4.1 OF THE IMPUGNE D ORDER THAT THE CASE WAS FIXED FOR HEARING ON 19.3.2018 AND THE ASSESSEE FIL ED ADJOURNMENT APPLICATION, THE CASE WAS ADJOURNED TO 26.3.2018. HOWEVER, IT IS NOT CLEAR AS TO WHETHER THE SAID DATE OF HEARING WAS COMMUNICATED TO THE AS SESSEE. I, THEREFORE, DEEM IT APPROPRIATE TO REMIT THIS CASE BACK TO THE FILE OF THE LEARNED CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDI NG DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 3884/DEL/2018 3 (ORDER PRONOUNCED IN THE OPEN COURT ON 09.10.2018. ) SD/ - [ N.K. SAINI ] ACCOUNTANT MEMBER DATED: 09.10.2018 SH COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR DATE 1. DRAFT DICTATED ON 4 .10.2018 PS 2. DRAFT PLACED BEFORE AUTHOR 5 .10.2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 11. DATE OF UPLOADING .10.2018