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Sh. Gulashanobar, Sanjay Parashar, Adv., 47-A, Devika Chamber, Raj Nagar, District Centre, Ghaziabad vs. Income Tax Officer, Ward-1(2), Ghaziabad
February, 08th 2019
              DELHI BENCH `SMC', NEW DELHI
          Before Sh. N. S. Saini, Accountant Member

       ITA No. 6489/Del/2018 : Asstt. Year : 2010-11
Sh. Gulashanobar,                    Vs   Income Tax Officer,
Sanjay Parashar, Adv.,                    Ward-1(2),
47-A, Devika Chamber, Raj Nagar,          Ghaziabad
District Centre, Ghaziabad
(APPELLANT)                               (RESPONDENT)
                 Assessee by : Sh. Anoop Sharma, Adv. &
                               Sh. Sanjay Parashar, Adv.
                 Revenue by : Sh. S. L. Anuragi, Sr. DR

Date of Hearing: 05.02.2019        Date of Pronouncement:08.02.2019

      Thi s i s an appeal fil ed by the assessee agai nst the orde r of
CIT(A), Ghazi abad dated 31.08.20 18.

2.    The assessee has rai sed foll owi ng grounds of appeal :
     " 1. That the Ld. CIT(A), erred in law, on facts and in
     surrounding circumstances in sust aining the impugned
     addition of Rs. 2206440 under in applicable section 69
     of I.T. Act in a mechanical, arbitrary and ex-parte
     manner, ignoring that the followin g fundamental errors
     of law, rende r the initiation and completion of
     proceedings u/s 147 of I.T. Act unsustainable in law

     2. That the Ld. CIT(A) and Ld. A.O. both erred in law,
     on facts and in surrounding ci rcu mstances in failing to
     appreci ate that the mere fact that cash deposits
     having been made in bank a ccount does n ot itself
     indicate/reflect that these deposits constitute an
     income which has escaped assessment.

     3. That in doing so, Ld. A.O. proceeded on a fallaci ous
     assumption that the cash deposits in the bank account
                                       2                            ITA No. 6489/Del/2018

     constituted an income/investment which has escaped
     assessment without bringing any material on record to
     substantiate that the so called income/investment had
     escaped asse ssment.

     4. The since there was n o relevant tangible material
     worth the name on record at the time of formation of
     belief except vague AIR inform ation, the impugned
     belief so entertained by Ld. A.O. being pre-supposed
     and speculative in nature, not only loses its legal
     sanctity but also eclipsed the jurisdiction of Ld. A.O. to
     proceed u/s 147/148 of I.T. Act.

     5. That without preju dice to a bove , fundamental errors
     of law, issuance of inquiry letter w ithout prior approval
     of competent authority u/s 133(6) of I.T. Act also
     render the entire procee dings from A to Z null and void
     in law, ab-initio.

     6. That the appellant craves leave to modify/amend or
     add any one or more grounds. "

3.    The   AR   of   the   assessee       submitted    that    the      Assessi ng
Offi cer passed order u/s 147 r.w .s. 144 of the Income Tax Act,
1961 as the assessee di d not appear before hi m and fil ed the
detail s of cash de posi t i n the bank account of R s.22,06,440/- .
Therefore, he treated the enti re deposi t as unexpl ai ned and
added the same to the i ncome of the assessee.

4.    The assessee before the CIT(A) sought adjournment on
09.08.2018,      16.08.2018     whi ch      was   granted       by       hi m.      The
assessee    sought     adjou rnment        on   the    date    of     heari ng        on
29.08.2018 whi ch was rejected by the CIT(A) on the ground
that four adjournments were al ready granted to the assessee.
Thereafter, he di smi ssed the appeal of the assessee and uphel d
the orde r of the CIT(A) . He pray ed that the matter shoul d be
restored back to the fil e of the AO and the assessee be granted
                                        3                       ITA No. 6489/Del/2018

opportuni ty    to    present    i ts   case   before     the   AO    wi th     the
necessary documents. The AR of the assessee al so submi tted
that non appearance before the AO as wel l as the CIT(A) was,
by   the   Authori zed    Representati ve      of   the   assessee      and     the
assessee de pended on hi m for pre senti ng i ts case before the A O
and CIT(A). He argued that for mi stake of the Counsel of the
assessee, the assessee shoul d not be penali zed.

5.    On the other hand, the l d. Departmental Representati ve
vehemently opposed the submi ssion of the AR of the assesse e
and submi tted that as suffi ci ent opportuni ty was all owed to the
assessee both by the AO and the CIT(A) and a s the assessee
fail ed to appea r and fil e necessary documents requi red for
compl eti ng the assessment, the order of the CIT(A) shoul d be
confi rmed and appeal of the assessee shoul d be di smi ssed.

6.    After considering the rival submissions and perusing the materials
available on record, I am of the considered opinion that the assessee had
engaged counsel for appearing before the Assessing Officer and the CIT(A)
who failed to put in appearance and file the necessary details on behalf of
the assessee. Hence, the addition came to be made in the hands of the
assessee for deposit of cash in the bank account of Rs.22,06,440/-. I am of
the view that for the default of the Counsel of the assessee, the assessee
should not be penalized. Therefore, in order to render substantial justice to
the assessee, I set aside the orders of the lower authorities and remand the
matter back to the file of the Assessing Officer to re-adjudicate the issues
involved   in this   appeal   afresh after allowing     reasonable   and    proper
opportunity of hearing to the assessee. The assessee is directed to appear
before the AO and file all necessary documents and evidences on which it
wishes to rely upon and when called upon to do so by the Assessing Officer.
Thus, the appeal of the assessee is allowed for statistical purposes.
                                       4                     ITA No. 6489/Del/2018

7.       In the result, the appeal of the assessee is allowed for statistical
 (Order Pron ounced i n the Open Court on 08/02/2019).

                                                        (N. S. Saini)
                                                    Accountant Member
Dated: 08/02/2019
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
                                                    ASSISTANT REGISTRAR
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