Abdul Nasir, New Delhi V. ITO, Ward-63(2), New Delhi

ITA 8630/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8721 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 04-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 201; 147; 148

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC - 2 : NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO. 8630 /DEL/201 9 ASSESSMENT YEAR : 20 1 1 - 12 ABDUL NASIR, 7900, GALI HAJI MEHBOOB WALI, MOHALLA SHAIKHAN, SADAR BAZAR (NAI BASTI, BARA HINDU RAO), DELHI. PAN: ABXPN8345B VS ITO, WARD - 63 ( 2 ) , NEW DELHI. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : NONE RE VENUE BY : SHRI VIJAY KUMAR KATARIA, SR . DR DATE OF HEARING : 2 8 . 07 . 20 2 1 DATE OF PRONOUNCEMENT : 28 . 0 7 . 20 2 1 ORDER TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE EX PARTE ORDER DATED 30 TH AUGUST, 201 9 OF THE CIT(A) - 20 , NEW DELHI, RELATING TO ASSESSMENT YEAR 20 1 1 - 12 . 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE ISSUE OF NOTICE THROUGH RPAD. THEREFORE, THIS APPEAL IS BEING DECIDED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. ITA NO. 8784 /DEL/201 9 2 3 . ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, THESE ALL RELATE TO THE EX PARTE ORDER OF THE CIT(A) I N CONFIRMING AN ADDITION OF RS.18,22,800/ - MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE. 4 . FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL . ON THE BASIS OF THE INFORMATION RECEIVED THAT THE ASSESSEE HAS MADE CASH DEPOSIT OF MOR E THAN RS.10 LAKHS AND HAS NOT FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR, THE AO INITIATED PROCEEDINGS U/S 147 OF THE ACT BY RECORDING REASONS AND NOTICE U/S 148 OF THE ACT WAS ISSUED ON 27 TH MARCH, 2018. THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE TO THE NOTICE ISSUED U/S 148 OR TO THE NOTICE ISSUED U/S 142(1) THEREAFTER. THE AO, THEREFORE, INVOKING THE PROVISIONS OF SECTION 144, DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.18,24,800/ - BEING THE UNEXPLAINED CASH DEPOSIT I N THE BANK ACCOUNT. SINCE THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A) DESPITE NUMBER OF OPPORTUNITIES GRANTED, THE LD.CIT(A), FOLLOWING THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS. B.N. B .N. BHATTACHAR J EE & A NR., 118 ITR 461 (SC); TH E DECISION OF THE HON BLE MADHYA PRADESH HIGH COURT IN THE CASE ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT, 223 ITR 480 (M.P.) ; AND THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE COMMISSIONER OF INCOME - TAX VS. MULTIPLAN INDIA (P.) LTD, 38 ITD 320 (D EL.) , DISMISSED THE APPEAL FILED BY THE ASSESSEE FOR NON - PROSECUTION. ITA NO. 8784 /DEL/201 9 3 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6 . I HAVE HEARD THE LD. DR AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). IT IS AN ADM ITTED FACT THAT DUE TO NON - COMPLIANCE TO THE NOTICE ISSUED U/S 148/142(1), THE AO COMPLETED THE ASSESSMENT U/S 147/144 OF THE ACT DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.18,22,800/ - . SINCE THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A) DESPITE NU MBER OF OPPORTUNITIES GRANTED, THE LD.CIT(A) IN THE EX PARTE ORDER PASSED BY HIM, DISMISSED THE APPEAL FILED BY THE ASSESSEE FOR WANT OF PROSECUTION . IT IS ALSO AN ADMITTED FACT THAT THE LD.CIT(A) HAS NOT DECIDED THE APPEAL ON MERIT WHICH HE IS REQUIRED T O DO AS PER THE PROVISIONS OF SECTION 250(6). AS PER THE PROVISIONS OF SECTION 250(6), THE ORDER OF THE CIT(A) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. HOWEVER, IN THE INSTANT CASE, THE LD.CIT(A) HAS NOT DECIDED THE ISSUE ON MERIT. CONSI DERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ON E FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE H IS CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE CIT(A) AND SUBSTANTIATE HIS CASE WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT, FAILING WH ICH THE LD.CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 8784 /DEL/201 9 4 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES . P RONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF, I.E., ON 28 .07 .20 21 . SD/ - ( R. K. PANDA ) ACCOUNTANT MEMBER DATED: 28 TH J ULY, 20 21 DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI