SHRI RAMESH RIJHWANI,INDORE vs. ACIT-1(2), INDORE

Ramesh Rijhwani ACIT-1(2) Indore Indore बनाम/ (Appellant) (Revenue ) Vs. P.A. No.ABVPR8541H Appellant by Smt. Shreya Jain, CA Revenue by Shri R.P. Maurya, Sr. DR Date of Hearing: 10.06.2020 Date of Pronouncement: 12.06.2020 आदेश / O R D E R PER KUL BHARAT, J.M: The appeal is preferred by the assessee against the order of the Ld. CIT(Appeals)-III, Indore, dated 31.05.2019 pertaining to assessment year 2008-09. The assessee has raised following grounds of appeal: “1. That the ex-parte order passed by the Ld. CITCA) is bad in law, illegal, without jurisdiction and on hypothetical grounds.

2. That on the facts and in the circumstances of the case

Ramesh Rijhwani and in law, the Ld. CIT(A) failed to appreciate the fact that the reason for not appearing on the date of hearing was that the wife and nephew of the assessee was seriously ill and hospitalized. Moreover the nephew of the assessee could not be survived. 3. That on the facts and in the circumstances of the case and in law the Ld. CITCA) erred in passing ex-parte order without deciding following grounds of appeals all merits; 1.That the appeal is still pending with ITAT Indore and after that to levied the penalty is unfortunate and bad in law. That all other ground at the time of hearing .. Rs.2,22,974/-

2. The appellant desire to raise following fresh grounds first time before the Hon'ble Tribunal which are not raised before the Ld. CIT(A);

1. That the Ld. A.O erred in imposing penalty for concealment of income at Rs.2,22,974/- on mechanical basis without recording satisfaction and without mentioning in the assessment order or in the penalty order that penalty is for concealment of particulars of income or for filing of inaccurate particulars of income.

2. That the Ld. A.O erred in imposing penalty u/s 271 (1)( c) on the basis of notice issued in the printed form without striking out therein whether the penalty is for concealment of particulars of income or for filing of inaccurate particulars of income. The above grounds are legal grounds hence it is prayed that in view of the decision 'of Hon'ble Supreme Court in the case of National Thermal 'Power Co: Ltd Vis CIT appellant be' permitted to make submission and arguments on the above ground.”

3.The ld. counsel for the assessee has filed a written submission that the search action u/s 132(1) was carried on 18.07.2007 at the 2

Ramesh Rijhwani residence and business premises of the assessee. During the course of search proceedings cash of Rs.6,71,005/- was found from the possession of the assessee out of which Rs.14,407/- was found explained and Rs.6,56,000/- was found unexplained by the search party. During the sources of search as well as assessment proceedings, the assessee explained that he is a managing Director of the Monica Galaxy Pvt. Ltd. and with the consent of all the directors he retained the cash balances of the company this premises every night or on holidays. After giving all the necessary explanations, evidences and affidavit of all the directors of the company, the Ld. AO made addition of Rs.6,56,000/- and treated the same as income of the assessee from undisclosed source. The ld. AO issued notice u/s 271(1)(c) and imposed penalty of Rs.2,22,974/-. The appeal before the ld. CIT(A), however on the date of hearing nobody appeared for to the reason that assessee’s wife and nephew was seriously ill and hospitalized. Moreover the nephew of the assessee could not be survived. The Ld. CIT(A) has not decided the grounds of appeal on merits and has been decided ex-parte.

Ramesh Rijhwani to the assessee, in the interest of justice, the assessee’s matter is liable to be reconsidered by the ld. CIT(A). Accordingly, the impugned order is set aside and the matter is restored back to the file of the ld. CIT(A). The ld. CIT(A) should decide the appeal afresh on merits in terms as indicated hereinabove after affording due opportunity of being heard to the assessee as per law and the assessee is also directed to cooperate/appear before ld. CIT(A) in this regard.