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Sh. Shiv Kumar, S/o- Sh. Jodh Singh, Vill. & PO.-Miragpur, Deoband, Saharanpur Vs. Sh. Bir Singh, Income Tax Officer, Ward-3(4), Deoband, Dist. Saharanpur
July, 13th 2015
              DELHI BENCH `SMC-I', NEW DELHI
                    Before Sh. N. K. Saini, AM
            ITA No. 1761/Del/2014 : Asstt. Year : 2008-09
Sh. Shiv Kumar,                Vs Sh. Bir Singh,
S/o- Sh. Jodh Singh,              Income Tax Officer,
Vill. & PO.-Miragpur, Deoband,    Ward-3(4), Deoband,
Saharanpur                        Dist. Saharanpur
(APPELLANT)                       (RESPONDENT)
                 Assessee by : None
                 Revenue by : Sh. Bhim Singh, Sr. DR

Date of Hearing : 07.07.2015     Date of Pronouncement : 10.07.2015

Per N. K. Saini, AM:

      This is an appeal by the assessee against the order dated
24.11.2013 of ld. CIT(A), Muzaffarnagar.

2.    During the course of hearing nobody was present on
behalf of the assessee. Therefore, the case is decided ex-parte,
on merit after hearing the ld. DR.

3.    Following grounds have been raised in this appeal:

     "1. That in the facts and circumstances of the case, the order
     passed by the Ld. Commissioner of Income Tax without going
     through the merits of the case and affirming the order of the
                                    2                   ITA No.1761/Del/2014
                                                            Shiv Kumar

     Assessing Officer without discussing the appellants submission
     is wrong and unjustified.

     2. That in the facts and circumstances of the case, the
     reopening of the case is unwarranted and unjustified.

     3. That in the facts and circumstances of the case, the
     reopening of the assessment without approval of the
     Joint/Additional Commissioner is erroneous and illegal.

     4. That the addition of Rs. 2,00,000 made by the assessing
     officer and confirming the same by the CIT Appeal in ex-parte
     order is wrong and against the facts.

     5. That in the facts and circumstances of the case, Shri Jodh
     Singh, father of the Appellant has a sufficient balance to give
     to his son for the investment in the firm which has not been
     appreciated by the lower Authorities, may kindly be deleted
     from the assessed income.

     6. That the addition made to the return income may kindly be

4.    The main grievance of the assessee vide ground no. 1 relates to the
ex-parte order passed by the ld. CIT(A) without going through the
merits of the case.

5.    Facts of the case in brief are that the assessee filed the return of
income in response to notice u/s 148 of the Income Tax Act, 1961
(hereinafter referred to as the Act) on 15.11.2011, showing income of
Rs. 42,380/- and agricultural income of Rs. 95,000/-. The AO during the
                                     3                  ITA No.1761/Del/2014
                                                            Shiv Kumar

course of assessment proceedings noticed that the assessee had
introduced Rs. 2,00,000/- in his capital account in the partnership firm
M/s Laxmi Associates, Deoband. He asked the assessee to explain the
source of investment in the said firm. In response the assessee stated that
the amount of Rs. 2,00,000/- was given out of his capital account and he
had 25 bigha agricultural land and bagh. He also stated that a loan of Rs.
95,000/- was taken from the bank on his Krishi Card. However, the AO
did not find merit in the submissions of the assessee and made the
addition of Rs. 2,00,000/-.

6.   Being aggrieved the assessee carried the matter to the ld. CIT(A)
who passed the impugned order ex-parte and confirmed the addition
made by the AO by observing that the assessee's claim of source of fund
was cooked up story and had no basis.

7.   Now the assessee is in appeal. In the present case, it is an admitted
fact that the ld. CIT(A) passed the order ex-parte. He simply mentioned
that the notice of hearing was issued on 22.11.2013 and the date for
hearing was fixed on 29.11.2013 but there was no compliance. However,
nothing was brought on record to substantiate that the aforesaid notice
issued was served upon the assessee, which is mandatory. It is well
settled that nobody should be condemned unheard as per the maxim
"audi alteram partem". I, therefore, considering the totality of the
facts, deem it appropriate to set aside the ex-parte order passed by the
                                       4                  ITA No.1761/Del/2014
                                                              Shiv Kumar

ld. CIT(A) and the case is remanded back to his file to be decided
afresh in accordance with law after providing due and reasonable
opportunity of being heard to the assessee.

8.       In the result, the appeal of the assessee is allowed for statistical
 (Order Pronounced in the Court on 10/07/2015)

                                               (N. K. Saini)
                                           ACCOUNTANT MEMBER
Dated: 10/07/2015
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
                                                    ASSISTANT REGISTRAR
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