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Bobby Ray, Dugai E Estate, Bhowali, Nainital Vs. ITO, Golghar, Mallital, Nainital
October, 14th 2015
               DELHI BENCH `A', NEW DELHI
      Before Sh. N. K. Saini, AM And Sh. Kuldip Singh, JM
             ITA No. 5186/Del/2013 : Asstt. Year : 2009-10

Bobby Ray,                            Vs ITO, Golghar,
Dugai E Estate, Bhowali,                 Mallital,
Nainital                                 Nainital
(APPELLANT)                              (RESPONDENT)
           Assessee by : Sh. Raja Kumar, Adv.
           Revenue by: Sh. K. K. Jaiswal, DR

Date of Hearing : 09.10.2015       Date of Pronouncement : 12.10.2015


     This is an appeal by the assessee against the order dated
17.06.2013 of the ld. CIT(A)-II, Dehradun.

2. Following grounds have been raised in this appeal:

    " I. On the fact and circumstances of the case and in
    law the Learned Commissioner of Income Tax
    (Appeals), erred in confirming the addition of Rs.

    II. The Appellant respectfully, submits as under:-

    1. The Learned Commissioner of Income Tax
       Appeals (CIT-A) has without going into the facts
                               2                  ITA No.5186/Del/2013
                                                         Bobby Ray

       has sustained     addition   aggregating     to     Rs.

     2. The ld. CIT-A has sustained the addition ignoring
        the fact that the appellant has no source of
        receipts except advance for sale of land and sale
        proceeds of land.

     3. That the order is bad in law, not in agreement
        with facts and is against the principles of natural

       III. The Appellant craves leave to add, alter,
       amend, and/or to modify any Grounds of Appeal,
       if necessary. "

3.   Facts of the case in brief are that the AO gathered the
information from Sub-Registrar, Nainital that the assessee
deals in sale of immovable properties which were inherited
by him in Vill.- Kahalquira Patti Bhowali which is well
within the limits of Municipal Corporation, Bhowali. The
AO issued the notices u/s 142(1) and 148 of the Income Tax
Act, 1961 (hereinafter referred to as the Act) on 18.08.2011.
As the assessee sought adjournment on the various dates,
the AO therefore was of the view that the assessee had
nothing in his coffer as an explanation about the source of
income as well as the investment in the shape of FDRs
amounting to Rs. 11,00,000/- in State Bank of India,
Bhowali. He made the addition of Rs. 11,00,000/- by
                                3                 ITA No.5186/Del/2013
                                                         Bobby Ray

 passing the assessment order dated 20.04.2012 u/s 144/148
 of the Act.

 4.    Being aggrieved the assessee carried the matter to the
 ld. CIT(A) who confirmed the action of the AO by
 observing as under:

      " 4.3 The facts have been considered. A very specific
      opportunity was provided to the Appellant to assist
      the AO in preparing his report (vide letter dated
      13.02.2013 a part of which has been extracted in
      para 4 above). This opportunity was not availed and
      the source of the FDRs remains a mystery. In view
      of this fact the action of Ld. AO is upheld and all
      the grounds of appeal are dismissed. "

5.     Now the assessee is in appeal. The ld. Counsel for the
assessee submitted that neither the AO nor the ld. CIT(A) had
given proper opportunity of being heard to the assessee.
Therefore, the addition made by the AO and sustained by the
ld. CIT(A) without allowing the proper opportunity of being
heard to the assessee was not justified. He requested to
remand the issue back to the file of the AO.

6.     In his rival submissions the ld. DR strongly supported
the orders of the authorities below and further submitted that
the assessee did not cooperate, therefore, the addition was
rightly made by the AO as the assessee was not having any
                                4                 ITA No.5186/Del/2013
                                                         Bobby Ray

explanation about the deposit in the FDRs account maintained
with State Bank of India, Bhowali.

7.    We have considered the submissions of both the parties
and carefully gone through the material available on the
record. In the present case, it is noticed that the AO framed
the assessment ex-parte u/s 144 of the Act and the ld. CIT(A)
also sustained the addition without appreciating the fact in
right prospective. In the present case, the department had not
rebutted this contention of the assessee that the FDRs had
been made out of the sale proceeds of the property already
considered   in   the   preceding   assessment   year    2008-09.
However, the relevant facts are not available on the record,
particularly it is not clear that how much amount the assessee
received from sale proceeds of the property in the preceding
year i.e. assessment year 2008-09. It is well settled that
nobody should be condemned unheard as per the maxim " audi
alteram partem " . We, therefore, by considering the totality of
the facts deem it appropriate to set aside this issue back to the
file of the AO 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 and unwarranted adjournment.
                                    5                   ITA No.5186/Del/2013
                                                               Bobby Ray

8.      In the result appeal of the assessee is allowed for statistical
(Order Pronounced in the Court on 12/10/2015).

           Sd/-                                       Sd/-
  (Kuldip Singh)                               (N. K. Saini)
JUDICIAL MEMBER                            ACCOUNTANT MEMBER
Dated: 12/ 10/2015
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
                                           ASSISTANT REGISTRAR
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