Arjun Mandal, West Bangal V. ITO, Ward- 33(1), New Delhi

ITA 7328/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 3984 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 04-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148

Judgement Text

Page | 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “SMC” BENCH: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA No.7328/Del/2019 [Assessment Year : 2010-11] Arjun Mandal, Kumbhara, Sesh Road, P.O.-Basna Nagar, Malda, West Bengal-732201. PAN-AWQPM6746H vs ITO, Ward-33(1), New Delhi. APPELLANT RESPONDENT Appellant by None Respondent by Shri Mrinal Kumar Das, Sr.DR Date of Hearing 19.09.2022 Date of Pronouncement 23.09.2022 ORDER PER KUL BHARAT, JM : The present appeal filed by the assessee for the assessment year 2010- 11 is directed against the order of Ld. CIT(A)-11, New Delhi dated 09.07.2019. The assessee has raised following grounds of appeal:- 1. “That the Learned Assessing Officer and Learned Commissioner of Income Tax (Appeals) /CIT(A) have erred in not appreciating the facts of the appellant’s case, properly. 2. That Learned Assessing Officer has failed to serve notice u/s 147/148 read with section 149 of the Income Tax Act, 1961 within due time and Learned CIT(A) erred in considering the issue of notice instead of service of notice under the provision of the Income Tax Act,1961. 3. That the Learned Assessing Officer has erred in considering the receipts of Rs.10,15,300/- as deemed income u/s 68/69A of the Income Tax Act, 1961, ignoring the nature of receipt and Page | 2 corresponding cash withdrawals on same dates and also ignoring his own basis of addition @ 8% of the credits in the bank account of the appellant and learned CIT(A) has erred in confirming the said addition. 4. That the order of the learned assessing officer is bad in law as well as on the facts of the appellant’s case. 5. That the appellant craves its right to add, annul, amend, alter, withdraw and/or substitute any/ or all of the grounds of appeal before the finalisation of the appeal.” 2. At the time of hearing, no one attended the proceedings on behalf of the assessee. It is seen from the records that despite various opportunities, there is no representation on behalf of the assessee since 25.01.2021. Therefore, the appeal of the assessee is taken up for hearing in the absence of the assessee and being disposed off on the basis of material available on record. BRIEF FACTS OF THE CASE 3. Brief facts of the case are that the case of the assessee was re-opened u/s 147 of the Income Tax Act, 1961 (“the Act”) on the ground that the assessee had deposited cash of Rs.10,15,300/- in saving bank account. A notice u/s 148 of the Act was issued on 30.03.2017 and stated to have been served upon the assessee. In response to the notice, no one attended on behalf of the assessee in the proceedings. Therefore, the Assessing Officer (“AO”) made addition of Rs. 10,15,300/- which was deposited in the bank account and assessed income at Rs.10,21,757/- as income from other sources. 4. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A), who after considering the submissions, dismissed the appeal. Page | 3 5. Aggrieved against the order of Ld.CIT(A), the assessee is in appeal before this Tribunal. 6. Ld. Sr. DR supported the orders of the authorities below and submitted that the assessee was thoroughly negligent in not attending the proceedings. 7. I have heard Ld. Sr. DR and perused the material available on record and gone through the orders of the authorities below. It is seen that one of the grounds before Ld. CIT(A) was that the assessee had not received the notice alleged to have been issued u/s 148 of the Act. I find that Ld.CIT(A) has decided the issue by observing as under:- 5.2. “Ground no.l relates to service of notice u/s 147/148 r.w. section l49 of the Act within due time. Appellant has claimed that notice u/s 147/148 was never served on the appellant. From perusal of the assessment order, it is seen that notice u/s 148 has been issued on 30.03.2017. Therefore, it is apparent that notice u/s 148 has been issued within the stipulated date. Hon’ble Supreme court in the case of RK Upadhayay vs Sanabhai P.Patel (SC) 166ITR163 have held that assessment is valid when notice/s 148 has been issued within limitation of period. Therefore, there is no basis in the claim of appellant. Accordingly, ground no. 1 is dismissed.” 8. From the above finding, it is evident that the Ld.CIT(A) has merely stated that the notice was issued on 30.03.2017 to the assessee. However, the provision of law mandates service of notice. Therefore, Ld.CIT(A) failed to advert this aspect whether the notice was served upon the assessee and by what mode. The impugned order is therefore, set aside and the grounds of appeal are restored to the file of Ld. CIT(A) to decide it afresh after giving a Page | 4 clear finding regarding issuance of service of notice u/s 148 of the Act. Thus, grounds raised by the assessee are allowed for statistical purposes. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 23 rd September, 2022. Sd/- (KUL BHARAT) JUDICIAL MEMBER * Amit Kumar * Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI