Jigneshbhai Arjunbhai Parmar, Surat, Kosamba V. Income Tax Officer, Ward 1, Bardoli, Bardoli

ITA 819/SRT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3517 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-03-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 28-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAYUR THAKKAR
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 68; 143(3)

Judgement Text

आयकर अपीलीय अिधकरण, सुरत Ɋायपीठ, सुरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND Dr ARJUN LAL SAINI, ACCOUNTANT MEMBER आ.अ.सं./ITA No.819/SRT/2023 (AY 2017-18) (Hearing in Physical Court) Jigneshbhai Arjunbhai Parmar 04, Centre Point, Zanda Chawalk Opp. Surat Dist. Co-Op Bank, Taluka Magrol, Kosamba, Dist. Surat-394120 PAN No: ATZPP 4987 H Vs Income Tax Officer, Ward-1, Bardoli, Income Tax Office, Above BSNL Office, Bardoli- 394601 अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओर से /Assessee by Shri Mayur Thakkar, CA राजˢ की ओर से /Revenue by Shri Vinod Kumar, Sr-DR सुनवाई की तारीख/Date of hearing 06.03.2024 उद्घोषणा की तारीख/Date of pronouncement 06.03.2024 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of National Faceless Appeal Centre, Delhi [for short to as “Ld. NFAC/Ld.CIT(A)”] dated 16.11.2023 for assessment year 2017-18, which in turn arises from the addition made by the Income Tax Officer-Ward-1, Bardoli /Assessing Officer in assessment order passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 21.12.2019. The assessee has raised the following ground of appeal:- “1 The Assessing Officer and Commissioner Appeal have erred in law and in facts, in considering the cash deposit as un-explained cash deposit. 2. The Ld.AO has erred in law and on facts in applying provision of section 115BBE on addition of Rs.26,65,550/-. 3. I pray to you to allow us to add, edit or delete any of the ground of appeal during hearing.” ITA No.819/SRT/2023 (A.Y 17-18) Jigneshbhai A Parmar 2 2. Rival submission of both the parties heard and record perused. At the outset of hearing, Learned Authorized Representative (Ld. AR) for the assessee submits that NFAC/Ld.CIT(A) dismissed the appeal of assessed in ex parte and non-speaking order and not giving fair and reasonable opportunities of being heard to assessee. The assessee filed appeal before NFAC/Ld.CIT(A) in January, 2020. The first notice of hearing was given only on 24.02.2021 and final notice of hearing issued on 12.09.2023 for furnishing submission or information as on or before 27.09.2023. The Ld. AR for the assessee submits that assessee engaged Chartered Accountant, Shri Viren Shah to represent him before NFAC/Ld.CIT(A). The notices, if any may have been served through e-mail of Viren Shah, who has given his e-mail and has not informed the assessee for making compliance which ultimately resulted in passing the ex parte order. The Assessing Officer also made addition on account of cash deposits in bank account in disregarding the submission of assessee. The assessee was collecting cash on behalf of with M/s Oxygen Service (India) Pvt. Ltd. as retail outlet management unit and used to cash depositing in his bank account and to transfer same to M/s Oxygen Service India) Pvt. Ltd. The assessee was also in the business of mobile recharges and dish TV recharges, payment of electric bills, money transfer etc., The Assessing Officer added entire amount on old currency notes, deposited during demonetization period thereby making addition of Rs.26,65,500/- under section 68 of the Act. The Ld. AR for the ITA No.819/SRT/2023 (A.Y 17-18) Jigneshbhai A Parmar 3 assessee submits that assessee has a good case on merit and likely to succeeds if assessee is given opportunity to contest the case on merits. The Ld. AR for the assessee submits that he undertakes on behalf of the assessee to be more vigilant in pursuing assessee’s appeal before NFAC/Ld.CIT(A) and not to make any further default in making compliance The Ld. AR for the assessee further submits that he has placed on record the bank statement, copy of agreement with M/s Oxygen Services (India) Pvt. Ltd., to substantiate assessee’s business relation with them. The Ld. AR for the assessee submits that he may be allowed to file all such documentary evidence before NFAC/Ld.CIT(A) as and when called for. 3. On the other hand, learned Senior Departmental Representative (Ld. Sr-DR) for the Revenue supported the order of lower authorities. The Ld. Sr-DR for the Revenue submits that assessee was given sufficient opportunities before NFAC/Ld.CIT(A) making such addition and made addition of cash deposit only with regard to old currency notes. The NFAC/Ld.CIT(A) has also given reasonable and sufficient opportunities to the assessee. The assessee has not responded to the notices issued by NFAC/Ld.CIT(A). The Ld. Sr-DR for the Revenue submits that assessee does not deserve leniency at this stage for restoring the case back to the file of NFAC/Ld.CIT(A). In alternative and without prejudice submissions, the ld Sr DR for revenue submits that in case this bench is of the view that the assessee deserve any ITA No.819/SRT/2023 (A.Y 17-18) Jigneshbhai A Parmar 4 more opportunity to contest his case before ld CIT(A), the same may be allowed only on exemplary cost. 4. We have considered the submission of both the parties and perused the order of lower authorities carefully. We find that Assessing Officer made addition of Rs.26,65,500/- with regard to depositing of old currency notes during demonetization period in Corporation Bank and tax same under section 115BBE of the Act. On appeal before NFAC/Ld.CIT(A) the action of Assessing Officer was upheld. We find that NFAC/Ld.CIT(A) upheld the addition in ex parte order and non- speaking order. We find that present appeal was filed before NFAC/Ld.CIT(A) on 17.02.2020. Para-5.1 of the order of NFAC/Ld.CIT(A) revealed that notices of hearing of appeal was issued for the first time on 24.02.2021, which the severe pandemic period of Covid-19. Thereafter, second notice was issued on 12.09.2023 to furnish reply or various questionnaire framed by NFAC/Ld.CIT(A) on or before 27.09.2023. And ultimately impugned order is passed by ld CIT(A). Before us, the Ld. AR for the assessee fairly accepts that said notices were not responded as the tax consultant of assessee had not informed assessee nor made any compliance on behalf of the assessee. We find that only one effective opportunity of hearing is given to the assessee. Keeping in view the principle of natural justice, the assessee deserves one more opportunity to contest his case on merit before NFAC/Ld.CIT(A) as substantial addition was made by the Assessing Officer. Therefore, the matter is restored back to the file ITA No.819/SRT/2023 (A.Y 17-18) Jigneshbhai A Parmar 5 of NFAC/Ld.CIT(A) to adjudicate the issue afresh in accordance with law. Needless to direct that before passing the order afresh, the NFAC/Ld.CIT(A) shall grant reasonable opportunity of being heard to the assessee. The assessee is also given liberty to file written submission and evidence to substantiate the cash deposit during demonetization period with Corporation Bank. The ld CIT(A) is directed to consider all such evidences, if so filed by the assessee. The assessee is also further directed to be more vigilant and to make compliance in time as and when called for by NFAC/Ld.CIT(A). In the result, the grounds of appeal raised by the assessee are allowed for statistical purpose. 5. In the result, the appeal of the assessee is treated allowed for statistical purposes. Order pronounced in open court at the close of the hearing on Wednesday, 6 th March,2024. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) [लेखा सद˟/ACCOUNTANT MEMBER] [Ɋाियक सद˟ JUDICIAL MEMBER] सूरत /Surat, Dated: 06/03/2024 Dkp. Out Sourcing Sr.P.S Copy to: 1. Appellant- 2. Respondent- 3. CIT(A)- 4. CIT By order 5. DR 6. Guard File // True Copy // Senior Private Secretary/ Private Secretary/Assistant Registrar, ITAT, Surat True copy/