Jai Prakash Verma, Ballia V. Income Tax Office, Ward - 2 (4), Ballia

ITA 7/VNS/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 6287 (ITAT-VARANASI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 13-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Non compliance
• Section: 147; 148; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT BENCH ‘SMC’ VARANASI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA No.07/Vns/2020 Assessment Year 2011-12 I.T.O., 2(4), Ballia, Vs. Jai Prakash Verma, Bara Pokhara, Maniar, Ballia (U.P.) PAN –AIIPV3936E (Respondent) (Appellant) Shri Janak Kumar Pandey, Advocate Appellant by Shri A.K. Singh, Sr. D.R. Respondent by 21/03/2022 Date of hearing 22/03/2022 Date of pronouncement O R D E R This appeal of the assessee is directed against the order dated 5.11.2019 of ld. CIT(A), Varanasi for the Assessment Year 2011-12. The assessee has raised the following grounds: “1. Service of notice u/s 148 was not proper (Never Received). 2. Order passed is without providing me reasonable opportunity to be heard. 3. Order passed u/s 147 is time barred. I have not yet received copy of order. I had none f the business other than Govt. service. Contention of investment to the tune of Rs.42,92,000/- was total wrong as in my account no such transaction has been taken place justifying investment of Rs.42.95 lakh.” 2 ITA No.07/Vns/2020 2. At the time of hearing, the ld. AR of the assessee has submitted that the Assessing Officer has passed an ex-parte order u/s. 144 r.w.s. 147 of the Income Tax Act which was challenged by the assessee before the ld. ld. CIT(A), however, the ld. ld. CIT(A) without giving sufficient opportunity of hearing to the assessee dismissed the appeal of the assessee vide impugned ex-parte order. The ld. AR of the assessee has pointed out that the alleged notices issued by the ld. CIT(A) were not received by the assessee and some of the notices were received after the date of hearing and when the assessee tried to file its reply it was not taken on record. Thus, ld. AR has submitted that the assessee may be granted one more opportunity of hearing to present its case before the Assessing Officer. 3. On the other hand, the ld. DR has submitted that the assessee has neither filed any return of income u/s. 139 of the Act nor in responded to notice issued u/s 148 of the Act. The assessee has not responded to the notices issued by the Assessing Officer and consequently the Assessing Officer has passed the ex-parte assessment order based on the material available with the Assessing Officer. He has further submitted that the Assessing Officer issued a notice u/s. 148 on the basis of information of deposits of Rs.42,92,000/- made in the bank account of assessee. Since the assessee has not furnished any explanation regarding the source of deposits in the bank therefore, the Assessing Officer was justified in making the addition as an unexplained cash deposit. The ld. ld. CIT(A) has issued various notices to the assessee but the assessee has not responded to any of the notices nor made any appearance before the ld. ld. CIT(A), therefore, the impugned order was passed confirming 3 ITA No.07/Vns/2020 the action of the Assessing Officer. He has relied upon the orders of the authorities below. 4. I have considered the rival submissions as well as perused the orders of the ld. Assessing Officer and ld. CIT(A). There is no dispute that the assessee has not filed any return of income u/s. 139 or in response to the notices u/s. 148 of the Act. The ld. AR has submitted that the assessee has not received notices issued by the authorities below. So far as the notices issued by the Assessing Officer, there is nothing on record to show that the assessee has not received those notices, however from the impugned order of the ld. ld. CIT(A) it is clear that the notices was issued just one week prior to the date of hearing and therefore, the possibility of receiving the notices after the date of hearing cannot be ruled out. The ld. ld. CIT(A) has given the details of the notices in para 2 as under: “2. In this case notices dated 27.8.2019, 26.9.2019, 9.10.2019 and 21.10.2019 were issued fixing the case for 4.9.2019, 3.10.2019, 17.10.2019 and 4.11.2019. However, in compliance to these notices neither anybody attended the proceedings nor any adjournment application was filed.” 5. Since the notices were issued by the ld. ld. CIT(A) just before the date of hearing therefore, the explanation of the assessee as for non compliance has some merit that some of the notices were issued late and overall after the date of hearing and the others were not received by the assessee. The ld. CIT(A) has proceeded to pass the ex-parte order by referring these notices sent through speed post as well as through e-mail. Thus in the facts and circumstances, it is apparent that ld. ld. CIT(A) has not given the details about the 4 ITA No.07/Vns/2020 services of these notices, which were issued just one week prior to the date of hearing and therefore, it appears that the assessee was not given sufficient opportunity of hearing by the ld. ld. CIT(A) before passing the impugned order. Since the assessment order was also passed ex-parte due to non appearance of the assessee therefore, in the interest of justice, the matter is set aside to the record of the Assessing Officer for deciding the same afresh after giving one more opportunity of hearing to the assessee. 6. In the result, appeal of the assessee is allowed for statistical purposes. (Order pronounced in the open court on 22/03/2022) Sd/- (Vijay Pal Rao) Judicial Member Aks – Dtd. 22/03/2022 Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File