LOKESH KUMAR, PROP.,KOTDWAR vs. ITO, KOTDWAR

There is a delay of 139 days in filing the appeal. After perusing the explanation furnished by the assessee seeking condonation of delay, we are satisfied that the delay in filing the appeal was due to reasonable cause. Accordingly, we condone the delay and admit the appeal for adjudication on merits.

When the matter was called out, none appeared on behalf of the assessee despite notice of hearing, being issued through registered post. The basic grievance of the assessee as per the grounds raised is against ex parte disposal of his appeal by learned first appellate authority.

Briefly, the facts are, the assessee is a resident individual. For the assessment year under dispute, the assessee filed his return of income on 30.09.2011 declaring income of Rs.2,36,836/-. Assessee’s case was picked up for scrutiny and while completing the assessment vide order dated 28.02.2014, the Assessing Officer made two additions. The first one is addition of Rs.38,87,347/- as unexplained cash credit under section 68 of the Act, being unsecured loan received by the assessee. The second addition of Rs.26,49,196/- is on account of estimation of profit from business by applying 8% on the gross turnover. Assessee contested the aforesaid additions by filing appeal before learned Commissioner (Appeals). While deciding the appeal, learned Commissioner (Appeals) upheld the addition made u/s. 68 of the Act. Whereas, in so far as addition made on account of estimation of business profit, learned Commissioner (Appeals) reduced the profit rate to 5%, thereby, restricting the addition to Rs.18,08,953/-.

We have heard learned Departmental Representative and perused materials on record. As discussed earlier, the basic grievance of the assessee is against ex parte disposal of appeal by learned first appellate authority. On perusal of the impugned order of learned Commissioner (Appeals), it is noticed that though 2-3 notices were issued to the assessee to represent his case, however, the assessee remained non-compliant. It was further noticed, the counsel engaged by the assessee withdrew his power of attorney and declined to represent assessee’s case any further. In such circumstances, efforts should have been made to locate the assessee and serve notice upon him. Since, the appeal before first appellate authority was decided ex parte, we are inclined to restore the issues arising in the present appeal back to the file of learned first appellate authority for fresh adjudication after providing reasonable opportunity of being heard to the assessee. It is made clear, the relief already granted by learned Commissioner (Appeals) to the assessee should not be made subject matter of the fresh proceedings. Grounds are allowed for statistical purposes.

In the result, appeal is allowed for statistical purposes.