Sh. Rajiv Gambhir, New Delhi V. ITO, New Delhi

ITA 933/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6322 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 03-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 18-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: RAJESH PRAKASH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. S UDHANSHU SRIVASTAVA , JM ITA NO. 933/DEL/2014 : ASSTT. YEAR : 2007 - 08 RAJIV GAMBHIR, R - 62 9, NEW RAJENDRA NAGAR, NEW DELHI - 110060 VS ITO, WARD - 33(3), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AHAPG6194Q ASSESSEE BY : SH. RAJESH PRAKASH , CA REVENUE BY : SH. O. P. MEENA , SR. DR DATE OF HEARING : 03 .0 2 .201 6 DATE OF PRONOUNCE MENT : 22 .03 .201 6 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 11.11.2013 OF LD. CIT(A) - XXVIII , NEW DELHI. 2. THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL READS AS UNDER: THE LD. CIT(A) IS NOT JUSTIFIED IN TREATING CASH DEPOSITS OF RS.12,55,000/ - IN THE BANK ACCOUNT OF THE ASSESSEE AS UNEXPLAINED AND WITHOUT AFFORDING AN OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT DESPIT E THE FACT THAT EXPLANATIONS AND EVIDENCE REGARDING THE SOURCE OF CASH DEPOSIT WERE SUBMITTED AT THE TIME OF ASSESSMENT PROCEEDINGS. ITA NO . 933 /DE L/2014 RAJIV GAMBHIR 2 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 22.02.2008 DECLARING AN INCOME OF RS.3, 46,010/ - WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). LATER ON, THE CASE WAS SELECTED FOR SCRUTINY AND THE AO ASKED THE ASSESSEE ABOUT THE CASH DEPOSITED IN THE SAVINGS BANK ACCOUNT WITH ABN AMRO BANK AMO UNTING TO RS.12,55,000/ . THE ASSESSEE SUBMITTED THAT HE WAS ENGAGED IN THE ACTIVITY OF THE PROPERTY DEALINGS AND WAS ALSO COMMISSION AGENT FOR BUSINESS DEALING. HE FURTHER SUBMITTED THAT ALL THE RECEIPT FROM THE ABOVE SAID ACTIVITIES WERE IN CASH. THE AO D ID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND MADE THE ADDITION OF RS.12,55,000/ - . 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION MADE BY THE AO BY DISMISSING THE APPEAL OF THE ASSESSEE EX - PARTE ON ACCOUNT OF NON - APPEARANCE OF THE ASSESSEE. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE WAS SERVED UPON THE ASSESSEE AND EVEN THE LD. CIT(A) HERSELF ADMITTED THAT THE NOTICES SENT TO THE ASSESSEE WERE RECE IVED BACK. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE INTIM ATED THE DEPARTMENT ITA NO . 933 /DE L/2014 RAJIV GAMBHIR 3 ABOUT THE CHANGE IN ADDRESS BY WAY OF SIMPLE CORRESPONDENCE AND THAT THE COLLECTION DEPARTMENT OF INCOME TAX HAD SENT A DEMAND NOTICE TO THE ASSESSEE WHICH PROVED THAT THE APPRO PRIATE ADDRESS OF THE ASSESSEE WAS AVAILABLE WITH THE INCOME TAX DEPARTMENT BUT NO NOTICE WAS SENT TO THE ASSESSEE ON THE SAID ADDRESS. THEREFORE, THE IMPUGNED ORDER OF THE LD. CIT(A) WITHOUT PROVIDING AN OPPORTUNITY OF BEING HEARD DESERVES TO BE SET ASIDE . 6. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND FURTHER SUBMITTED THAT THE ASSESSEE DID NOT INTIMATE THE LD. CIT(A) ABOUT THE CHANGE OF ADDRESS, IF ANY, AND THE NOTICE S OF HEARING WERE SENT AT THE SAME AD DRESS WHICH IS MENTIONED IN FO RM NO. 3 5. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) HERSELF ADMITTED THAT THE NOTICES SENT TO THE ASSES SEE WERE RECEIVED BACK UNSERVED . IN THE INSTANT CASE, IT IS AN ADMITTED FACT THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE . IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, CONSIDER ING ITA NO . 933 /DE L/2014 RAJIV GAMBHIR 4 THE TOTALITY OF THE FACTS OF THE PRESENT CASE , DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENTS. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 22 /03 / 2016 ) SD/ - SD/ - ( SUDHANSHU SRIVASTAVA ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22 /03 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR