MR.AKSHAT DONERIA,GREATER NOIDA vs. ITO-4(1), AGRA

ORDER

PER SHAMIM YAHYA, AM :

1) That in view of the facts and circumstances of the case, the learned authorities below have erred both in law and on the facts in not properly serving the notice(s) for fixation of hearing on the address intimated by the appellant and in the absence of any information about the date of hearing / compliance, the appellant could not defend his case properly and judiciously, resulting into denial of an adequate opportunity and completion of exparte assessment and appeal in exparte manner. 2) That as the appellant, on account of reason beyond control, could not participate in the assessment as well as in the appeal proceedings, resulting into exparte order(s), thus in view of the principles of equity and natural justice, he deserves an adequate opportunity to defend his case properly and judiciously. Thus his case may be restored back to Leanred AO for denovo assessment after ensuring proper opportunity to the appellant. 3) That in view and circumstances of the case, the Ld. CIT(A)-I, Noida has erred both in law and on facts in dismissing the appeal of the appellant, solely on the basis of his uncalled for and unwarranted observations, which are even contrary to the facts of the appellant’s case. 4) That the various debit and credit transactions emerging in the regular and disclosed saving bank accounts of the appellant being fully explained and verifiable with reference to the relevant evidences / material, thus the Ld. CIT(A)-I, Noida has erred both in law and on facts in sustaining the arbitrary addition of Rs. 17,20,688/- made by the AO, by treating the credit entries appearing in the saving back accounts, as alleged undisclosed income of the appellant. 5) That on the facts and circumstances of the case, the Ld. CIT(A)-I, Noida has erred both in law and on facts in the arbitrarily sustaining the estimated addition of Rs. 5,00,000/- made by the Ld. AO towards the so called “Margin Money” allegedly deposited by the appellant for making transactions in derivatives, equity and commodities with MCX and various brokers solely on the basis of his wrongly drawn unilateral adverse inferences and on surmises and conjectures. There being no evidence on record justifying such estimated addition, thus the same deserves to be deleted. 6) That upon due consideration of facts and in the circumstances, the Ld. CIT(A)-I, Noida has been arbitrary and unjust in sustaining the addition of Rs. 91,200/- made by the AO, treating the agriculture income declared by the appellant as income from other sources, by completely brushing aside the past history and material, facts in this regard.

7) That in view of the facts and circumstances of the case, the Ld. CIT(A)-I, Noida has erred both in facts and in law, in upholding the denial of deduction of Rs. 66,809/- claimed by the appellant under chapter VI-A, though the related payment and source thereof were duly verifiable from the appellant saving bank account(s), which were available with the AO. 8) That the Ld. Authorities below have erred both in law and facts in charging interest under ss. 234A, 234B, 234C & 234D and initiating penalty proceedings under section 271(1)© of the I.T. Act, 1961. 9) That the appellate order dated 31.8.2018 passed by the Ld. CIT(A)-I, Noida is against the law and on facts of the appellant’s case. The appellant seeks permission to modify and / or any other ground/grounds of appeal as the circumstances of the case might require or justify.

2. At the time of hearing, the Ld. Counsel for the assesee has only argued the grounds no. 1 to 3 and did not press the ground no. 4 to 9, hence, the grounds no 4 to 9 are dismissed, as not pressed.

3. The brief facts of the case are the assessee filed his return of income on 22.2.2012 declaring total income of Rs. 2,39,900/-, Net agricultural income of Rs. 91,200/- and aggregate income at Rs. 3,31,100/- in the status of individual through e-filing and the same was processed accordingly. Later the case was selected for scrutiny and notice u/s. 143(2) dated 25.9.2012 was issued and served upon the assessee well within time fixing date of compliance for 28.9.2012.. Subsequently, notices u/s. 142 of the Act dated 19.6.2013 and dated 17.10.2013 alongwith basic questionnaire was issued to the assessee, but none appeared on behalf of the assessee. However, on 22.1.2014, the AR appeared and filed the computation of income and challans of tax paid for AY 2011-12, however, no compliance of any sort was made regarding the questionnaires and the case was adjourned for 04.2.2014, but assessee not attended. AO issued summons u/s. 131 dated 6.2.2014, but not response was received by the assessee, hence, the AO completed the assessment u/s. 144 of the Act vide order dated 10.3.2014 by making various additions assessed the total income at Rs. 26,18,590/-. Against the assessment order, the assessee appealed before the Ld. CIT(A), who vide his impugned order dated 31.08.2018 has confirmed the order of the AO by observing that the assessment order suffers from no infirmity and dismissed the appeal of the assessee. Aggrieved with the order dated 31.08.2018 of the Ld. CIT(A)-1, Noida, now the assessee is in appeal before the Tribunal.

CIT(A)-2, Agra was transferred by the CCIT, Kanpur to the CIT(A)-I, Noida, but unfortunately, the Ld. CIT(A)-1, Noida despite having knowledge of the changed address, continued to send the notice on the old address, resulting into unintentional non compliance by the assessee before the Ld. CIT(A)-1, Noida and even the appellate order was sent by the Ld. CIT(A)-1 Noida on assesee’s wrong address, and thus could not be received by the assessee. It was further submitted that such facts came to the knowledge of the assessee only during the inspection of the records and he had obtained the certified copy of appellate order for filing the appeal before the Tribunal. In view of above, he submitted that the exparte assessment and appeal have been completed for the fault of the assessee but solely on account of improper service of notices, on the old addresss, which did not come to the knowledge of the assessee and thus the principles of equity and natural justice have been grossly violated in case of the assessee. Hence, he requested to restore back the case of the assessee to the file of the AO for de novo assessment with the directions he shall afforded proper opportunity to defend his case properly and judiciously.