Mr.Kishan Lal Sargara, Chittorgarh V. ITO, Ward-2, Chittorgarh

ITA 411/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4081 (ITAT-JODHPUR)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 13-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH (SMC), JODHPUR BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO. 411/JODH/2018 (ASSESSMENT YEAR-2011-12) SHRI KISHAN LAL SARGARA, NEAR SHARMA NURSING HOME, ADARSH COLONY, NIMBAHERA, CHITTORGARH (RAJ.) VS THE ITO, WARD-2, CHITTORGARH (APPELLANT) (RESPONDENT) PAN: CJTPS7537L REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY NONE, (WRITTEN SUBMISSIONS BY SHRI AMIT BABEL, CA) DATE OF HEARING 03.05.2019 DATE OF PRONOUNCEMENT 07.05.2019 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 3.2.2017 OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, UDAIPUR . 2. DURING THE COURSE OF HEARING, LD. COUNSEL FOR TH E ASSESSEE HAS MOVED AN APPLICATION DATED 1.5.2019 STATING THEREIN AS UN DER:- 2 'RE: MR. KISHAN LAI SARGARA, TEHSIL- NIMBAHEDA (RA J.) APPEAL NO. 411 /JODH/2018 WITH REFERENCE TO THE ABOVE MENTIONED CASE WE WOULD LIKE TO DRAW YOUR KIND ATTENTION TOWARDS THE FACT THAT AS WE WER E NOT BEING HEARD IN THE APPEAL AND NEITHER OUR SUBMISSIONS WERE CONS IDERED, THE ORDER WAS MADE EX-PARTE. KINDLY REQUEST YOU TO PLEA SE SET ASIDE THE CASE. THE DATE OF HEARING OF THE CASE OF MR. KISHAN LAL SARGARA IS FIXED ON MAY 3 RD , 2019, DUE TO CERTAIN UNAVOIDABLE REASONS, THE UNDERSIGNED WILL NOT BE ABLE TO BE PRESENT ON THAT DATE, SO REQUEST YOU TO EITHER SET ASIDE THE CASE OR PROVIDE ADJOURN MENT OF THE SAME TO ANY OTHER DAY. PLEASE DO THE NEEDFUL AND OBLIGE. THANKING YOU IN ANTICIPATION. YOURS FAITHFULLY, FOR M/S J.S. BABEL & CO. (CHARTERED ACCOUNTANTS) SD/- CA, AMIT BANEL (PARTNER) 3. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 1. THE LEARNED INCOME TAX OFFICER, WARD-2 , CHITTOR GARH HAS ERRED IN TREATING THE CASH SALES DEPOSITED IN T HE BANK, AS INCOME FROM UNDISCLOSED SOURCES. THE DEPOSITS REPRE SENTS THE SALES PROCEEDS. HENCE THE ADDITION IS UNJUST, UNREA SONABLE AND UNWARRANTED. THE ADDITION MADE SHOULD BE DELETE D AND / OR THE ORDER PASSED U/S 143/144 SHOULD BE SET ASIDE AS PROPER OPPORTUNITIES WERE NOT GIVEN TO THE ASSESSEE. THE P ENALTY ORDER IMPOSED U/S 271 (1) (C) SHOULD ALSO BE QUASHE D. 1. 2. THE COMMISSIONER OF INCOME-TAX (APPEALS)-L, UDAIPUR HAS ALSO ERRED IN NOT CONSIDERING THE FACTS OF REPL Y SUBMITTED AND DISMISSED THE APPEAL OF YOUR APPELLANT. 3 3. YOUR APPELLANT SHOULD BE ALLOWED TO ADD, AMEND O R DELETE ANY GROUND OR GROUND OF APPEAL. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE ELECTRONICALLY FILED THE RETURN OF INCOME ON 30.9.2011 DECLARING AN INCO ME OF RS. 2,24,590/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX AC T, 1961 (IN SHORT 'THE ACT'). LATER ON, THE CASE WAS SELECTED FOR SCRUTIN Y. THE ASSESSING OFFICER FRAMED THE EX-PARTE ASSESSMENT AND MADE THE ADDITIO N OF RS. 45,54,200/- ON ACCOUNT OF CASH DEPOSITS WITH ICICI BANK. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICE R BY PASSING AN EX-PARTE ORDER. 6. NOW THE ASSESSEE IS IN APPEAL. 7. THE LD. SR. DR SUPPORTED THE ORDERS OF THE AUTHO RITIES BELOW. THE LD. COUNSEL FOR THE ASSESSEE IN HIS WRITTEN SUBMISSIONS HAS STATED THAT THE ASSESSEE WAS NOT HEARD AND EVEN THE SUBMISSIONS WER E NOT CONSIDERED WHILE FRAMING THE EX-PARTE ORDER BY THE LD. CIT(A). 8. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) PASSED THE EX- PARTE ORDER BY OBSERVING THAT THE NOTICES OF HEARIN G WERE ISSUED TO THE ASSESSEE FOR VARIOUS DATES BUT NOBODY ATTENDED. SH E ALSO POINTED OUT THAT THE LAST NOTICE FOR HEARING ON 23.1.2017 WAS ISSUED ON 6.1.2017 BY REGISTERED POST BUT NEITHER ANYBODY ATTENDED NOR ANY APPLICATI ON FOR ADJOURNMENT WAS 4 FILED. HOWEVER, NOTHING IS BROUGHT ON RECORD TO SUB STANTIATE THAT ANY NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . I, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PRO VIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 07.05.2019) SD/- (N.K. SAINI) VICE PRESIDENT DATED : 07.05.2019 .. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , ! , $ / DR, ITAT, JODHPUR 6. ' / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR