ITA NO. 5838/Del/2012
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "E", NEW DELHI
BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
AND
SHRI C.M. GARG, JUDICIAL MEMBER
I.T.A. No. 5838/Del/2012
A.Y. : 2003-04
M/s Micro Max VS. ITO, Ward 6(1),
Technologies Pvt. Ltd., New Delhi
P-31, West Patel
Nagar, New Delhi
(PAN: AAACM7070M)
(APPELLANT) (RESPONDENT)
Assessee by : Sh. Manoj Kumar, CA
Department by : Mrs. Renuka Jain Gupta, Sr. D.R.
ORDER
PER SHAMIM YAHYA: AM
This appeal by the Assessee is directed against the order of
the Ld. Commissioner of Income Tax (Appeals)-IX, New Delhi dated
29.8.2012 pertaining to assessment year 2003-04.
2. The grounds raised read as under:-
1. Looking into the facts and circumstances of the
case and in law, the addition of Rs. 2,04,000/- under
the head unexplained cash credit u/s. 68 is not
tenable in law and Ld. CIT(A) has erred in sustaining
the addition on untenable and illegal grounds.
Hence, the addition made, as such, may kindly be
deleted.
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2. Looking into the facts and circumstances of the
case and in law, the Ld. CIT(A) has erred in not
providing the sufficient opportunity to the assessee
and in deciding the case ex-parte. Hence, the
order, as such, may kindly be set aside and sent
back to the file of the Ld. CIT(A) for fresh disposal.
3. That under the facts and circumstances of the case
and in law, the Ld. AO has erred in invoking
section 147 simply on the basis of information and
without having any reason to believe and
application of his mind that the income has escaped
assessment. Hence, the order passed on the basis
of such a defective notice is in fructuous and
without jurisdiction and liable to be quashed and
demand may be vacated. The Ld. CIT(A) has erred
in sustaining such assessment order on illegal and
untenable grounds. Hence, the assessment, as
such, for lack of jurisdiction under section 147 may
be quashed.
4. The under the facts and circumstances of the case
and in law, the AO has erred in law as the statutory
requirement of section 151(2) regarding satisfaction
by the Jt. CIT is absent in absent in the file and
instead the approval of CIT-II, Delhi was taken. The
Ld. CIT(A)-IX has erred in sustaining such
assessment order on illegal and untenable grounds.
Hence, the assessment as such may be quashed.
5. That under the facts and circumstances of the case
and in law, the Ld. AO has erred in making addition
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of Rs. 2,04,000/- u/s. 68 which deals with
unexplained cash credits on untenable and illegal
grounds. The CIT(A) also has erred in sustaining the
addition without providing sufficient opportunity to
the assessee. Hence, the addition u/s. 68 is illegal
and hence liable to be vacated.
6. That it is prayed that appellant assessee may be
permitted to add, amend, delete or substitute any
grounds of appeal on or before of the date of
hearing.
3. In this case assessment was framed u/s 147 of the I.T. Act. In
the assessment AO made addition on account of unexplained cash
credit amounting to Rs. 2.04 lacs. The same consisted of bogus
accommodation entry of Rs. 2 lacs and plus commission
@ 2% thereon amounting to Rs. 4000/-.
4. Upon assessee's appeal Ld. CIT(A) confirmed the AO's action.
5. Against the above order the Assessee is in appeal before us.
6. At the outset, Ld. Counsel of the assessee submitted that in
this case the Ld. CIT(A) has passed an exparte order. He pleaded
that sufficient opportunity has not been given to the assessee. He
submitted that appellate order was passed by the Ld. CIT(A) in the
Month of August, 2012 by giving the assessee very short
opportunity. In that period, Ld. Counsel of the assessee contended
that assessee's counsel was busy in time barring matter relating to
Income Tax as well as Companies Act cases. Hence, Ld. Counsel of
the assessee prayed that the matter may be remitted to the file of
the Ld. CIT(A) for consideration after allowing the assessee
adequate opportunity of being heard.
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6.1 Ld. Departmental Representative on the other hand submitted
that assessee has not cooperated before the Ld. CIT(A). She
submitted that if the matter is being remitted to the file of the Ld.
CIT(A), the assessee should be directed to cooperate in the hearing.
7. We have carefully considered the submissions and perused the
records. On the facts and circumstances of the case, in our
considered opinion, interest of justice will be served if the matter is
remitted to the file of the Ld. CIT(A). Ld. CIT(A) is directed to
consider the issue afresh, after giving the assessee adequate
opportunity of being heard. We hold and direct accordingly.
8. In the result, the appeal filed by the Assessee is allowed for
statistical purposes.
Order pronounced in the Open Court on 10/10/2013, upon
conclusion of hearing.
Sd/- Sd/-
GARG]
[C.M. GARG] [SHAMIM YAHYA]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Date 10/10/2013
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant 2. Respondent 3. CIT 4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
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