IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `B' NEW DELHI
BEFORE SHRI G. D. AGRAWAL, HON'BLE VICE-PRESIDENT
AND
SHRI C. M. GARG, HON'BLE JUDICIAL MEMBER
I.T.A .No.-291/Del/2012
(Assessment Year-2007-08)
Shri Firay Singh Vs. ITO,
U-141, Ground Floor, Ward 36(3)
Shakar Pur New Delhi.
Delhi-110092
PAN: ALEPS9334G
(APPELLANT) (RESPONDENT)
Assessee by:-Sh. Tarun Kumar, Adv. &
Sh. Somil Aggarwal, CA.
Revenue by:-Mrs. Ashima Neb, Sr. DR
ORDER
PER C. M. GARG, JM.
This appeal has been preferred against the order of CIT (Appeals)
XXVII, New Delhi, dated 27.10.2011 in Appeal No. 25/10-11 for
Assessment Year 2007-08.
2. Although the assessee has taken 9 grounds of this appeal but as
requested by both the parties, we take up ground no. 1 which read as under:
"1. That having regard to the facts and circumstances of the
case, Ld. CIT(A) has erred in law and on facts in
confirming the action of Ld. AO in framing the impugned
2 I.T.A .No.-291/Del/2012
(Assessment Year-2007-08)
assessment order that too without assuming jurisdiction
as per law and without giving adequate opportunity of
being heard."
3. Apropos ground no. 1, the ld. counsel for the assessee submitted that
the ld. CIT(A) has erred in law on facts in confirming the assessment order
which was passed without assuming valid jurisdiction as per law and without
giving an opportunity of being heard for the assessee.
4. The ld. counsel for the assessee further submitted that the AO had
noticed that attendance of Shri Sachin Aggarwal, CA on behalf of the
assessee on 23.11.2009 but on 4.12.2009 the AO marked absent of assessee
as well as Representative of the assessee and passing the impugned order
without providing due opportunity of being heard for the assessee.
5. The ld. counsel for the assessee also drawn our attention towards
impugned order and submitted that the assessee's Representative Shri Sachin
Aggarwal, CA attended the proceeding on various dates but only on account
of failure to attend the case on 4.12.2009 the case was decided on merits
exparte without providing due opportunity of being heard for the assessee
hence, the AO was not justified in passing exparte assessment order.
Therefore, the ld. CIT(A) has grossly erred in dismissing ground no. 1 and 2
of the assessee during first appellate proceedings.
3 I.T.A .No.-291/Del/2012
(Assessment Year-2007-08)
6. Replying to the above, the ld. DR contended that the AO provided 14
opportunities of hearing for the assessee but the assessee's Representative
Shri Sachin Aggarwal, CA kept on asking adjournments without submitting
required explanation towards cash withdrawals. The ld. DR also submitted
that in above facts and circumstances, the AO had no option but to complete
assessment exparte on the basis of material placed before the AO, which
cannot be said to be an unreasonable action.
7. On careful consideration of above contentions & submissions and
vigilant perusal of relevant material placed on record. We are of the view
that the main allegation and contentions of the Department during
assessment proceedings was that as per the AIR information assessee had
deposited cash amounting to Rs.13,61,200/- in his bank account operated
with Bank of Baroda, Sakarpur Branch, and despite of repeated requests the
assessee fail to provide the source of cash deposited in the bank account
before the AO. The ld. counsel for the assessee submitted that the assessee
was engaged in providing services of renovation and construction of houses
for which he took advances from his client to make the expenses on their
behalf and the amount of advances so received was deposited in the bank
account and withdrawals were made on this account from time to time to
meet expenses. During the first appellate proceedings the ld. CIT(A) granted
4 I.T.A .No.-291/Del/2012
(Assessment Year-2007-08)
partly relief by accepting received shown in the return of income but the ld.
CIT(A) rejected the additional evidences filed by the assessee without
calling any comments and remand report from the AO. The procedure
adopted by ld. CIT(A) is not according to the requirement of provisions of
Rule 46A of Income tax Rules, 1962 therefore, ware inclined to hold the
authorities below have not provided due opportunity of hearing for the
assessee. The first appellate authority has rejected the additional evidence
produced by the assessee without following due procedures as prescribed in
the Income tax Rules.
8. Under these circumstances, we are of the considered opinion that the
assessee was not provided due opportunity of hearing to support his case
before the authorities below. Therefore, we find that an appropriate to
restore the entire controversy to the file of the AO, with a direction that the
AO shall frame afresh assessment order after providing due opportunity of
hearing for the assessee without being prejudiced with the earlier assessment
and impugned order. Thus orders of the authorities below are set aside and
the matter is remitted back to the file of the AO for framing fresh assessment
as per directions hereinabove. Accordingly, ground no. 1 of the assessee is
allowed.
Ground nos. 2 to 9 of the assessee
5 I.T.A .No.-291/Del/2012
(Assessment Year-2007-08)
9. Since by the earlier part of this order, we have restored all
proceedings to the file of the AO for fresh assessment, therefore, other
grounds of the assessee did not survive for adjudication on merits and we
dismiss the same without any elaborate adjudication on merits.
10. In the result, appeal of the assessee is deemed to be allowed for
statistical purposes.
Order pronounced in the open Court on 05/09/2014.
Sd/- Sd/-
(G. D. AGRAWAL) (C. M. GARG)
VICE-PRESIDENT JUDICIAL MEMBER
Dated: 05/09/2014
*AK VERMA*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
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