Anil Kumar, Ghaziabad V. ITO,Ward-2(1), Ghaziabad

ITA 87/DEL/2023

AI Insights

This case involves an appeal by Shri Anil Kumar against the order of the CIT (Appeals)/National Faceless Appeal Centre, which sustained an addition of Rs.7,22,590 under section 69 of the Income Tax Act, 1961 for the assessment year 2017-18. The assessee, engaged in a petty business of gas stove repair, filed his return declaring an income under section 44AD. His case was selected for scrutiny to examine credit card payments, leading to notices under sections 143(2) and 142(1) of the Act. The assessee provided the requested details, but claimed he was not given an adequate opportunity to explain the cash deposit issue in his bank account, resulting in the addition. The CIT (Appeals) upheld this addition, leading to the current appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113220 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-02-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 12-01-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 69; 44AD; 142(1); 201; 143(2)

Judgement Text

I.T.A. No. 87/Del/2023 1 IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH “S.M.C.” : DELHI ] BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER, S.M.C. आ.अ.सं./I.T.A No. 87/Del/2023 िनधाᭅरणवषᭅ/ Assessment Year: 2017-18 Shri Anil Kumar, Ch. No. 206-207, Ansal Satyam, RDC, Raj Nagar, Ghaziabad, Uttar Pradesh – 201 005. बनाम Vs. Income Tax Officer, Ward : 2 (1) Ghaziabad. PAN No. AYUPK7993E अपीलाथᱮ / Appellant ᮧ᭜यथᱮ / Respondent िनधाᭅᳯरतीकᳱओरसे /Assessee by : Shri Akhilesh Kumar, Advocate; राज᭭वकᳱओरसे / Department by : Shri Om Parkash, Sr. D. R.; सुनवाईकᳱतारीख/ Date of hearing : 28/02/2023 उ᳃ोषणाकᳱतारीख/Pronouncement on : 22/05/2023 आदेश / O R D E R PER C. N. PRASAD, J. M. : 1. This appeal is filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals) [hereinafter referred to CIT (Appeals)]/National Faceless Appeal Centre [NFAC] dated 25.11.2022 for assessment year 2017-18 in sustaining the addition I.T.A. No. 87/Del/2023 2 of Rs.7,22,590/- made under section 69 of the Income Tax Act, 1961 (the Act). 2. The ld. Counsel for the assessee submits that the assessee is doing petty business of gas stove repair filed return of income on 31.03.2018 declaring an income of Rs.1,83,930/- under section 44AD of the Act. Ld. Counsel submits that the case of the assessee was selected for limited scrutiny to examine the credit card payments. Ld. Counsel submits that notice under section 143(2) of the Act dated 9.08.2018 was issued to the assessee and subsequently notice under section 142(1) of the Act was issued on 12.09.2018 calling for various details. The assessee furnished the details/replies on 27.09.2018 giving bank details, complete identification/address of persons, who used assessee’s credit card etc. Ld. Counsel submits that after furnishing thed reply and details by the assessee the Assessing Officer has not provided any opportunity of hearing nor issued any show cause notice and the assessee could not explain his case before the Assessing Officer. The Assessing Officer without providing any further opportunity to the assessee to explain the issue of cash deposit in the bank account completed the assessment on 21.12.2019 making addition of Rs.7,22,590/-. 3. The ld. Counsel submits that on appeal the ld. CIT (Appeals) sustained the addition. The ld. Counsel for the assessee submits that the ld. CIT (Appeals) issued notices dated 28.07.2022 and 24.08.2022 fixing the date of hearing on 4.08.2022 and 31.08.2022 respectively from NFIC through email on which dates the assessee sought adjournment through his counsel. The ld. Counsel submits that except these notices no other notice fixing the date of hearing I.T.A. No. 87/Del/2023 3 on 17.11.2022 by the ld. CIT (Appeals) was received by the assessee and, therefore, the assessee could not represent before the ld. CIT (Appeals) to explain his case. Ld. Counsel submits that the assessee filed an affidavit stating that the assessee has not received any further notices from the Assessing Officer or the ld. CIT (Appeals) to explain the contentions of the assessee. Therefore, the ld. Counsel submits that the matter may be restored to the Assessing Officer for providing an opportunity to the assessee to explain his case as the Assessing Officer without providing adequate opportunity to the assessee completed the assessment. 4. The ld. DR has no serious objection in restoring the matter to the file of the Assessing Officer. 5. On hearing both the parties and perusing the orders of the authorities below and the affidavit furnished before me, I am of the opinion that the assessee was denied proper opportunity by the Assessing Officer as well as the ld. CIT (Appeals). Taking the totality of facts and circumstances into consideration, the issue in appeal is restored to the file of the Assessing Officer for de novo adjudication in accordance with law after providing adequate opportunity of being heard. 6. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on : 22/05/2023. Sd/- ( C. N. PRASAD ) JUDICIAL MEMBER I.T.A. No. 87/Del/2023 4 Dated : 22/05/2023. *MEHTA* Copy forwarded to :- 1. Appellant; 2. Respondent; 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi. Date of dictation 17.05.2023 Date on which the typed draft is placed before the dictating member 18.05.2023 Date on which the typed draft is placed before the other member 22.05.2023 Date on which the approved draft comes to the Sr. PS/ PS 22.05.2023 Date on which the fair order is placed before the dictating member for pronouncement 22.05.2023 Date on which the fair order comes back to the Sr. PS/ PS 22.05.2023 Date on which the final order is uploaded on the website of ITAT 22.05.2023 Date on which the file goes to the Bench Clerk 22.05.2023 Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the order