Mr.Rodi Lal Banjara, Chittorgarh V. ITO, Ward-2, Chittorgarh

ITA 412/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6591 (ITAT-JODHPUR)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 13-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO. 412/JODH/2018 (ASSESSMENT YEAR-2011-12) MR. RODI LAL BANJARA, C/O J.S. BABEL & CO., 328-331, EMERALD TOWER, HATHIPOLE, UDAIPUR 313001 VS THE ITO, WARD (2), CHITTORGARH (APPELLANT) (RESPONDENT) PAN: AAIPB8948F REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY NONE (WRITTEN SUBMISSIONS OF SHRI AMIT BABEL, CA DATE OF HEARING 30.04.2019 DATE OF PRONOUNCEMENT 30. 04.2019 O R D E R PER N. K. SAINI, V.P. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 25.01.2017 OF LD. COMMISSIONER OF INCOME TAX (APPE ALS), UDAIPUR. 2 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 1. THE LD. INCOME TAX OFFICER, WRD-2, CHTTORGARH HAS ERRED IN TREATING THE CASH SALES DEPOSITED IN THE BANK, AS INCOME FORM UNDISCLOSED SOURCES. THE DEPOSIT REPRESENTS THE SALE PROCEEDS. HENCE, THE ADDITION IS UNJUST, UNREASONABLE AND UNWARRANTED. THE ADDITION MADE SHOULD BE DELETED AND / OR THE ORDER PASSED U/S 143 / 144 SHOULD BE SET ASIDE AS PROPER OPPORTUNITIES WARE NOT GIVEN TO THE ASSESSEE. THE PENALTY ORDER IMPOSED U/S 271 (1) (C)SHOULD BE QUASHED. 2. THE CIT(A)-1, UDAIPUR HAS ALSO ERRED IN NOT CONSIDERING THE FACTS OF REPLY SUBMITTED AND DISMISSED THE APPEAL OF YOUR APPELLANT. 3. YOUR APPELLANT SHOULD BE ALLOWED TO ADD, AMEND OR DELETE ANY GROUND OR GROUND OF APPEAL. 3. DURING THE COURSE OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE AND ADJOURNMENT LETTER HAS BEEN FILED STAT ING THEREIN THAT EITHER THE CASE MAY BE ADJOURNED OR EX-PARTE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) MAY BE SET ASI DE. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE FILED RETURN OF INCOME ON 29.9.2011 DECLARING AN INCOME RS. 2,39,18 0/-. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFIC ER PASSED THE EX- PARTE ORDER U/S 144 OF THE ACT AND MADE THE ADDITIO N OF RS. 56,79,779/-. 3 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WHO DISMISSED THE APPEAL BY PASSING THE IMPUGNED ORDER EX-PARTE. NOW THE ASSESS EE IS IN APPEAL. 6. THE LD. SR. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE NEITH ER APPEARED BEFORE THE ASSESSING OFFICER NOR LD. COMMISSIONER OF INCOM E TAX (APPEALS), THEREFORE, THE ADDITIONS MADE BY THE ASSESSING OFFI CER WAS RIGHTLY SUSTAINED BY THE LD. COMMISSIONER OF INCOME TAX (A PPEALS). 7. WE HAVE CONSIDERED THE SUBMISSIONS FOR LD. SR. D R AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT C ASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) MENTIONED THAT MOST OF THE TIME WHEN THE CASE WAS FIXED FOR HEARING, NEITHER ANYBOD Y ATTENDED NOT ANY APPLICATION FOR ADJOURNMENT WAS FILED. IT HAS BEEN MENTIONED THAT THE NOTICE WAS ISSUED ON 6.1.2017 FOR THE HEARING ON 24 .1.2017 WHICH RETURNED BACK. IN THE PRESENT CASE, NO COMMENTS OF THE POSTMAN HAVE BEEN MENTIONED ALTHOUGH IT IS STATED AT PAGE 4 OF T HE IMPUGNED ORDER THAT THE COMMENTS FOR THE POSTMAN WERE AS UNDER:- . BUT NOTING IS MENTIONED THAT WHAT WERE THE COMMENTS OF THE POSTMAN AS THE SPACE HAS BEEN SHOWN BLANK. IT IS A LSO NOT CLEAR AS TO WHETHER ANY EFFORT WAS MADE TO SERVE THE NOTICE OF HEARING ON THE 4 ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APP ROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 30..04.2019) SD/- SD/- (N.K. CHOUDHRY) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED :. 04.2019 .. / 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