Sh. Bharat Bhushan, Panchkula V. ITO, Ward 6(2), Mohali

ITA 433/CHANDI/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1521 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 27-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA DHAR
• Keywords: Business income; Opportunity of being heard
• Section: 147; 148; 250

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण,च瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठच瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठ ‘‘ए एए ए.’’, च瀃डीगढ़ च瀃डीगढ़च瀃डीगढ़ च瀃डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘A’ CHANDIGARH BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER आयकर आयकरआयकर आयकर अपील अपीलअपील अपील सं संसं सं./ ITA No. 433/CHD/2021 Assessment Year : 2012-13 Shri Bharat Bhushan, House No. 435, Sector 27, Panchkula. बनाम VS The ITO, Ward 6(2), Mohali. 瀡थायी लेखा सं./PAN /TAN No: AAXPB1568M अपीलाथ牸/Appellant 灹瀄यथ牸/Respondent िनधा榁琇रती क琉 ओर से/Assessee by : Shri B.M. Monga & Shri Rohit Kaura, Advocates राज瀡व क琉 ओर से/ Revenue by : Smt. Priyanka Dhar, Sr.DR तारीख/Date of Hearing : 15.03.2022 उदघोषणा क琉 तारीख/Date of Pronouncement : 23.05.2022 आदेश आदेशआदेश आदेश/ORDER PER DIVA SINGH The present appeal has been filed by the assessee assailing the correctness of the order dated 10.11.2021 passed u/s 250 of the Income Tax Act, 1961 by the CIT(A) (NFAC i.e. National Faceless Appeal Centre) Delhi pertaining to 2012-13 assessment year on the following grounds : 1. That the order of Ld. CIT(A) is against the law and facts of the case. 2. That the Learned CIT(A) has grossly erred in not adjudicating all the grounds of appeal and deciding only one or two grounds of appeals and that too by passing a totally non speaking ex parte order. 3. That the Learned CIT(A) is not justified while upholding the reopening u/s 147/148 by deciding only the partial appeal that too without adjudicating the specific ground of appeal of the assessee qua non service of the statutory Notice u/s 148, as the reassessment order has been passed without proper and legal service of statutory Notice u/s 148 on the assessee. 4. That the Learned CIT(A) is not justified in not adjudicating the specific ground of appeal of the assessee as the AO is not justified in passing reassessment order u/s 147 ITA 433 /CHD/2021 A.Y. 2012-13 Page 2 of 4 of the Act, when admittedly the sanction u/s 151 was given mechanically on wrong facts. 5. That the Learned CIT(A) is not justified in not adjudicating the specific ground of appeal of the assessee as the AO has framed reassessment without serving the Assessment Order and Demand Notice within period of limitation thus the order becomes void ab initio. 6. That the Ld. CIT(A) has grossly erred in upholding the reassessment order passed u/s 144 by the AO, without appreciating the fact that reassessment order is without proper jurisdiction and passed without independent application of mind by the AO and only on the basis of borrowed information and dictates of investigation wing. 7. That the Id, CIT(A) has grossly erred in upholding the illegal order passed by the Id. AO whereby AO has made the addition of entire credit entries totaling to Rs. 56,48,897/- u/s 144 as undisclosed income of the assessee without considering the nature of business of the assessee and specifically when the deposits in the bank account were genuine and from the business transactions of the assessee, as it was out of business income of sale and construction of flats. 8. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard and disposed off. 2. At the time of hearing, ld. AR referring to the record submitted that the assessee could not participate in the proceedings before the CIT(A) and agreed that even before the AO the participation could not be made. However, before the CIT(A), it was pleaded that the assessee could not participate on account of the pandemic conditions. Accordingly, it was pleaded that the notices issued by the CIT(A) could not be complied with. In the circumstances, a prayer for remand back of the issue was made. Ld. AR gave his oral understanding stating that the assessee shall participate fairly. 3. The ld. Sr.DR Ms. Dhar referring to the assessment order submitted that even before the AO, the assessee has failed to explain the credit entries totaling Rs. 56,48,000/- ITA 433 /CHD/2021 A.Y. 2012-13 Page 3 of 4 found deposited in the specific Account No.0370040100001429 of the J&K Bank. However, considering the oral pleading on account of pandemic conditions on account of which reasons, the assessee pleads that he could not participate in the proceedings before the First Appellate Authority, she agreed that remand back to the CIT(A) in the circumstances is not opposed. 4. We have heard the rival submissions and perused the material available on record. It is seen that the addition was made by way of the assessment order dated 10.12.2019 on account of the credit entries in the specific account in J&K Bank Ltd. which despite opportunity remained unexplained. However, in the light of the submissions of the parties before the Bench and in the interests of substantial justice considering the record accepting the oral undertaking given by the ld. AR that the assessee shall participate in the proceedings before the CIT(A) in case of a remand, the impugned order is, accordingly, set aside. The issues are restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. 5. At the same time, the assessee in its own interests is directed to ensure full and proper participation in the ITA 433 /CHD/2021 A.Y. 2012-13 Page 4 of 4 proceedings before the CIT(A). It is made clear that in the event of abuse of the opportunity so provided, the First Appellate Authority shall be at liberty to pass an order in accordance with law on the basis of material available on record. Said order was pronounced in the Open Court at the time of hearing itself. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced on 23 rd May,2022. Sd/- Sd/- (VIKRAM SINGH YADAV) (DIVA SINGH) लेखा लेखालेखा लेखा सद瀡य सद瀡यसद瀡य सद瀡य/ Accountant Member 瀈याियक 瀈याियक瀈याियक 瀈याियक सद瀡य सद瀡यसद瀡य सद瀡य/ Judicial Member “Poonam” आदेश क琉 灹ितिलिप अ灡ेिषत/ Copy of the order forwarded to : 1. अपीलाथ牸/ The Appellant 2. 灹瀄यथ牸/ The Respondent 3. आयकर आयु猴/ CIT 4. आयकर आयु猴 (अपील)/ The CIT(A) 5. िवभागीय 灹ितिनिध, आयकर अपीलीय आिधकरण, च瀃डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड榁 फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar