ASHOK KUMAR, GHAZIABAD V. ITO, WARD- 1(1), GHAZIABAD

ITA 5595/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 9603 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRAFUL RAWAT
• Keywords: Set aside
• Section: 147; 148; 271(1)(c); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘A’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER ITA No. 5595/Del/2019 (Assessment Year : 2009-10) Ashok Kumar S/o. Sukhbir Singh, Vill Mehrauli, Post Kavi Nagar, Ghaziabad -201002 PAN No. ALXPK 7744 H Vs. ITO Ward – 1(1), Ghaziabad (APPELLANT) (RESPONDENT) Assessee by Shri Praful Rawat, Adv. Revenue by Shri Kanav Bali, Sr. D.R. Date of hearing: 29.09.2022 Date of Pronouncement: 30.09.2022 ORDER PER ANIL CHATURVEDI, AM : This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax (Appeals)-Ghaziabad relating to Assessment Year 2009-10. 2. Brief facts of the case as culled out from the material on record are as under :- 2 3. Assessee is an individual. AO has noted that as per the AIR information, assessee had deposited cash aggregating to Rs.17,57,000/- in his saving bank account during the F.Y. 2008- 09. Notice u/s 148 of the Act was served through affixture. Thereafter, the case was taken up for scrutiny and assessment was framed u/s 147 r.w.s 144 of the Act vide order dated 17.10.2016 and accordingly, the assessment was completed on the total income of Rs.17,57,000/-. On the aforesaid addition, AO by passing penalty order dated 13.02.2017 u/s 271(1)(c) of the Act levied penalty of Rs.4,89,600/-. 4. Aggrieved by the order passed by AO, assessee carried the matter before CIT(A) who vide order dated 31.05.2019 in Appeal No.37/2017-18/Gzb dismissed the appeal on account of non- prosecution. Aggrieved by the order of CIT(A), Assessee is now in appeal before us and has raised the following grounds: i. “That having regard to the facts and circumstances of the case, Learned CIT(A) has erred in law and in facts in confirming the action of the Ld AO in levying penalty of Rs.4,89,600/- u/s 271(1)(c) of the Act being illegal and void ab initio. ii. That in any case and in any view of the matter, the action of the Ld CIT(A) in confirming the action of Ld AO in levying the penalty of Rs.4,89,600/- u/s 271(1)(c) is bad in law and against the facts and circumstances of the case. iii. That having regard to the facts and circumstances of the case, Ld CIT(A) has erred in law and in facts in confirming the action of the Ld AO in levying penalty u/s 271(1)(c) on the addition of Rs.17,57,000/- on account of cash deposit in Saving Bank account made in the Assessment Order and more so when framing the 3 such Assessment order u/s 147/144 dated 17.10.2016 is also contrary to law and in facts. iv. That having regard to the facts and circumstances of the case, Ld CIT(A) has erred in law and in facts in confirming the action of the Ld AO in levying penalty of Rs.4,89,600/- that too without recording mandatory satisfaction as per law. v. That the appellant craves, leave to add, to amend, modify, rescind, delete, supplement or alter any of the grounds of appeal stated herein above either before or at the time of hearing of the appeal.” 5. Before us, Learned AR at the outset, stated that the reasons given by CIT(A) for dismissing the appeal are wrong, insufficient and contrary to facts and evidence on record and in law and while dismissing the appeal he has not decided the issue on merits. He stated that one more opportunity be granted to the assessee to plead its case and he undertakes that the assessee would be represented before the authorities and all the required details called for by authorities will be furnished. 6. Learned DR on the other hand supported the order of AO. 7. We have heard the rival submissions and perused the material available on record. The perusal of CIT(A) order reveals that CIT(A) has passed an ex parte order without deciding the issue on merits. Sub Section (6) of Section 250 of I. T. Act mandate the CIT(A) to state the points in dispute and thereafter assign the reasons in support of his conclusion. We are of the view that by dismissing the appeal without considering the issue 4 on merits, Learned CIT(A) has failed to follow the mandate required in Sub Section (6) of Section 250 of the Act. Further it is also a well settled principle of natural justice that sufficient opportunity of hearing should be offered to the parties and no parties should be condemned unheard. In view of these facts, we set aside the impugned order of CIT(A) and restore the issue to the file of CIT(A) for re-adjudication of the issues after granting sufficient opportunity of hearing to the assessee. Assessee is also directed to furnish the details called for by the lower authorities. In view of our decision to restore the issue to CIT(A), we are not adjudicating on merits the grounds raised by the assessee. Thus the grounds of assessee are allowed for statistical purposes. 8. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 30.09.2022 Sd/- Sd/- (NARENDER KUMAR CHOUDHRY) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 30.09.2022 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI