SHRI SUMIT GOYAL C/O SHRI RAM LAKHAN GOYAL MOHALLA THATERON KA, SHRIMADHOPUR, DIST-SIKAR C/O- S.L. PODDAR & COMPANY E-3A, KANTI CHANDRA ROAD, BANI PARK, JAIPUR,JAIPUR vs. INCOME TAX OFFICER CIRCLE-6, NEEMA KA THANA, CIRCLE-6, NEEMA KA THANA

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ITA 295/JPR/2019Status: DisposedITAT Jaipur14 September 2020AY 2015-164 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) passed an ex parte order without ensuring proper service of notice and providing a reasonable opportunity of hearing to the assessee. Therefore, the principles of natural justice were violated.

What were the facts?

The assessee filed a return of income, but the Assessing Officer framed the assessment at a higher income. The CIT(A) passed an ex parte order confirming the addition without giving the assessee a proper opportunity of being heard.

What were the issues?

Whether the CIT(A) erred in passing an ex parte order without providing due opportunity of hearing to the assessee. Whether the addition made by the AO under Section 68 was justified.

Which sections of the Income-tax Act were involved?

Section 68,Section 10(38)

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Income Tax Appellate Tribunal, JAIPUR BENCHES “B”, JAIPUR

Before: SHRI N.K. SAINI & SHRI SANDEEP GOSAIN, JM vk;dj vihy la-@ITA No. 295/JP/2019

For Appellant: Shri S.L. Poddar (Adv) jktLo dh vksj ls@
Hearing: 14/09/2020Pronounced: 14/09/2020

ORDER PER: N.K. SAINI, VICE PRESIDENT This is an appeal filed by the assessee against the order of ld. CIT(A)- 3, Jaipur dated 02/01/2019 for the A.Y. 2015-16. The assessee has raised following grounds of appeal: “1. Under the facts and circumstances of the case, the ld. CIT(A) has erred in passing the ex parte order without giving opportunity to the assessee of being heard which is void ab-initio deserves to be quashed.

1.

2. Under the facts and circumstances of the case, the ld. CIT(A) has erred in confirming the addition of Rs. 10,64,235/- u/s 68 of the Income Tax Act, 1961 made by the ld. AO on account of sale of shares which is exempt u/s 10(38) of the Income Tax Act, 1961.

3. Under the facts and circumstances of the case, the ld. AO as well as the ld. CIT(A) have erred in not giving opportunity of the cross examination of the persons on whose statement he relied upon.

2 ITA 295/JP/2019_ Shri Sumit Goyal Vs ITO 4. Under the facts and circumstances of the case, the ld. AO as well as the ld. CIT(A) have erred in not providing the complete material on which he relied upon and opportunity to confront the same before completion of the assessment. 5. The assessee craves your indulgence to add, amend or alter all or any grounds of appeal before or at the time of hearing.”

2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic.

3. The main grievance of the assessee raised in this appeal relates to ex parte order passed by the ld. CIT(A) without giving him proper opportunity of hearing.

4.

Facts in brief are that the assessee filed his return of income on 30/09/2015 declaring total income of Rs. 2,94,320/-. However, assessment was framed by the A.O. at an income of Rs. 13,58,560/-.

5.

Being aggrieved by the order of the A.O., the assessee preferred appeal before the ld. CIT(A), who sustained the addition made by the A.O. by passing ex parte order by observing as under:

“4. The present appeal is against the assessment order passed u/s 143(3) of the Act. I have carefully perused the grounds of appeal and assessment order. As already discussed above, the appellant has failed to offer any explanation for submission in support of the grounds raised in this appeal nor any supporting evidences were produced by him despite adequate opportunity having been provided.

3 ITA 295/JP/2019_ Shri Sumit Goyal Vs ITO In this connection, reliance may be placed upon the decision of the Hon'ble supreme court in the case of H.M. Esufali H.M. Abdulali (1973) 90 ITR 271 wherein the Hon'ble court has held that he appellate authority cannot substitute its own judgment in place of the judgment of the A.O. unless it is shown that the judgment of the A.O. was biased, irrational, vindictive or capricious. In the instant case the appellant has not able to show that the decision of the A.O. was arbitrary, biased, irrational, vindictive or capricious without any basis, I find no reason to interfere with the decision of the A.O.”

6.

Now the assessee is in appeal against the ex parte order passed by the ld. CIT(A).

7.

The ld. Counsel appeared on behalf of the assessee has submitted that the ld. CIT(A) has not provided due and proper opportunity of hearing to the assessee even the notice for hearing was not served on the assessee.

8.

The ld DR has supported the order passed by the ld. CIT(A).

9.

We have considered the rival submissions of both the parties and perused the material available on record. In the present case, it is noticed that the ld. CIT(A) has passed ex parte order, however, it has not been brought on record that the notice for hearing was served to the assessee. She simply stated that notice of hearing was issued to the assessee. It is well settled law that nobody should be condemned unheard as per maxim of audi alterm partem, we therefore, by keeping in view the principles of 4 ITA 295/JP/2019_ Shri Sumit Goyal Vs ITO natural justice, deem it appropriate to set aside this case back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of hearing to the assessee.

10.

In the result, appeal of the assessee is allowed for statistical purposes only. Order pronounced in the open court on 14th September, 2020.

Sd/- Sd/- ¼lanhi x®lkÃa½ ¼,u-ds-lSuh½ (SANDEEP GOSAIN) (N.K. SAINI) U;kf;d lnL;@Judicial Member mik/;{k@Vice President Tk;iqj@Jaipur fnukad@Dated:- 14/09/2020 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Sumit Goyal, Shrimadhopur. 1. izR;FkhZ@ The Respondent- The I.T.O., Ward- Neem Ka Thana. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 295/JP/2019) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत

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