Deluxe Cold Storage and Food Processors, Delhi V. ACIT, Circle-7(2), New Delhi

ITA 792/DEL/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6083 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2016-2017
• Appeal Filed On: 12-02-2020
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 68; 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘B’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI YOGESH KUMAR US, JUDICIAL MEMBER ITA No.792/Del./2020 (ASSESSMENT YEAR : 2016-17) Deluxe Cold Storage and Food Processors, vs. ACIT, Circle 7(2), BD-84, Pitampura, New Delhi. Delhi – 110 088. (PAN : AAACD0905C) (APPELLANT) (RESPONDENT) ASSESSEE BY : None REVENUE BY : Md. Gayasuddin Ansari, Senior DR Date of Hearing : 18.07.2022 Date of Order : 18.07.2022 ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal by the assessee is directed against the order of the ld. CIT (A)-3, New Delhi dated 13.12.2019 pertaining to assessment year 2016-17. 2. The grounds of appeal raised by the assessee read as under :- “1. On the facts and circumstances of the case, the order passed by the Learned CIT(A) is bad both in the eye of law and on facts. 2.(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in passing the order without giving assessee an opportunity of being heard in violation of principle of natural justice. (ii) That the non-appearance before the Ld. CIT(A) was due to reason beyond the control of the assessee. ITA No.792/Del./2020 2 3. On the facts and circumstances of the case, the Ld. CIT(A) has erred both on facts and in law in passing the order without giving any findings on the merits of the case. 4.(i) On the facts and circumstances of the case, Id. CIT(A) has erred both on facts and in law in confirming the addition of Rs. 45,04,782/- made by A.O. on account of cash balance of the assessee. (ii) That the disallowance was made rejecting the explanation and evidences brought on record by the assessee.” 3. Brief facts of the case are that the Assessing Officer (AO) noted that during the year, assessee company is engaged in the business of trading of food grains. The AO noted that the assessee company has cash-in-hand of Rs.45,04,782/-. The AO asked about the reason of the same. He was not satisfied with the assessee’s response. He added the same as unexplained and held as under :- “4. In response of above mentioned letter, vide letter dated 30.11.2018, the AR of the assessee only submitted that pre trend of the business assessee attains good volume of cash sales on a daily basis which is normally deposited on the very next day. However assessee failed to substantiate its claim with documentary evidence. The assessee company has also not submitted the relevant vouchers / bill in respect of cash sales. Further, it is also mention that assessee shown huge amount of cash in hand of Rs.45,04,782/- as on 31.03.2016. Assessee has also submitted its return of income for the A.Y. 2016-17 on 30.11.2016 i.e. after the demonetization period. 5. In view of the above discussion, the cash in hand as on 31.03.2016 of Rs.45,04,782/- is unexplained in the hands of assessee and is being added to the total income of assessee under section 68 of the Income Tax Act, 1961. Since, the assessee has concealed the particular of income, therefore, penalty proceedings u/s 271(1)(c) of the in the IT Act, 1961 is, therefore, initiated accordingly.” 4. Upon assessee’s appeal, ld. CIT (A) dismissed the appeal for non- prosecution. Thereafter, he also dismissed the appeal on merits by mentioning ITA No.792/Del./2020 3 that AO had given opportunity and assessee has not explained the cash-in-hand. Against the above order, assessee has filed appeal before us.. 5. We have heard the ld. DR and perused the records. None appeared on behalf of the assessee despite notice. Upon careful consideration, we find that ld. CIT (A) had dismissed the appeal for non-prosecution in an assessment order in which AO had added the cash-in-hand as unexplained u/s 68 of the Income-tax Act, 1961 (for short ‘the Act’). 6. In our considered opinion, it is incumbent upon the ld. CIT (A) to decide on the merits of the case and not dismiss the appeal for non-prosecution. How cash-in-hand is to be added under section 68 needs to be gone into by a speaking order. Hence, in the interest of justice, we remit the issue to the file of ld. CIT(A). Ld. CIT (A) is directed to consider the issue on merits and pass an order after giving the assessee proper opportunity of being heard. 7. In the result, the assessee’s appeal is allowed for statistical purposes. Order pronounced in the open court on this 18 th day of July, 2022. Sd/- sd/- (YOGESH KUMAR US) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 18 th day of July, 2022 TS Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A)-3, New Delhi. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.