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Income Tax Appellate Tribunal, E-COURT,
Before: SHRI A.T. VARKEY, JM & DR. A.L.SAINI, AM
आदेश / O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the assessee, pertaining to assessment year 2013-14, is directed against the order passed by ld. Commissioner of Income Tax (Appeals) - 2 Guwahati dated 04.12.2018, which in turn arises out of an order passed by the assessing officer under section 143(3) of the Income Tax Act, 1961( Hereinafter referred to as ‘the Act’) dated 31.03.2015.
At the outset itself, the learned counsel for the assessee submitted before the Bench that during the assessment stage the assessee has not been given adequate opportunity to furnish the documents and evidences, therefore one more opportunity should be given to the assessee to plead his case before the Assessing Officer. Learned counsel stated that Assessing Officer has made addition of Rs. 29,50,000/- as unexplained cash credit on the basis that the assessee has not supported his explanation with proper material evidence and the assessee has not correlated and explained the entries in the seized material marked as “BLA-8” with regular books of accounts. The learned counsel submitted that said account
2 Bajrang Lal Agarwal A.Y: 2013-14 was nothing but money kept in chest by the partner and whenever there is requirement in the firm said amount is brought into the firm and also returned back to partner. During the assessment stage, the ledger copy seized marked as BLA-8/199 contains only the debit entry. The assessee has submitted debit ledger and credit ledger before the Assessing Officer but the same has not been considered by the AO. However, the assessee also submitted the summary of debit ledger and credit ledger during the appellate proceedings to explain the entries in the books of accounts. The learned counsel contended before the Bench that Assessing Officer has not examined the evidences properly and did not ask the assessee to furnish further evidences to prove the genuineness of the amount of Rs. 29,50,000/-. The learned counsel further submitted that during the financial year 2012-13, the assessee made payment of Life Insurance Premium amounting to Rs. 5,60,202/-. Most of the LIC receipts were seized by the department during the search and seizure therefore assessee could not produce before the AO. However, the counsel submitted that all the payments were made by the assessee by account payee cheques to the LIC of India therefore genuineness of these payments should not doubted. Likewise the assessee wants to submit relevant evidences before the AO in respect of other grounds raised by the assessee. Hence, ld Counsel prayed the Bench that one more opportunity should be given to the assessee to plead his case before the assessing officer.
On the other hand, ld. DR for the Revenue did not have any objection if the matter is remitted back to the file of the Assessing Officer.
We have heard both the parties and also perused the relevant material available on record. After going through the submission of the assessee as noted above, we note that assessee did not get adequate opportunity to plead his case before the Assessing Officer, so, we find force in the submission of the Ld. Counsel that no proper opportunity was given to assessee by AO during the reassessment proceedings therefore we are of the view that said lis should be remitted back to the file of the AO to adjudicate the issues afresh, for that we rely on the judgment
3 Bajrang Lal Agarwal A.Y: 2013-14 of the Hon’ble (three judge bench) of the Hon’ble Supreme Court in Tin Box Company Vs. CIT (2001) 249 ITR 216 (SC) wherein it was held as follows:
“It is unnecessary to go into great detail in these matters for there is a statement in the order of the Tribunal, the fact-finding authority, that reads thus : “We will straightaway agree with the assessee’s submission that the Income-tax Officer had not given to the assessee proper opportunity of being heard.” That the assessee could have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is the assessment order that counts. That order must be made after the assessee has been given a reasonable opportunity of setting out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus : “1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Income-tax Officer had not given a proper opportunity of hearing to the assessee ?” In our opinion, there can only be one answer to this question which is inherent in the question itself : in the negative and in favour of the assessee. The appeals are allowed. The order under challenge is set aside. The assessment order, that of the Commissioner (Appeals) and of the Tribunal are also set aside. The matter shall now be remanded to the assessing authority for fresh consideration, as aforestated.”
Therefore, relying on the judgment of Hon’ble Supreme Court in the case of Tin Box Company (supra), we set aside the order of the Ld. CIT(A) and remand the matter back to the file of AO for de novo assessment and to decide the matter in accordance to law after giving opportunity of being heard to the assessee.
In the result, the appeal of assessee is allowed for statistical purposes .
Order pronounced in the open court on this 17/06/2020.
Sd/- Sd/- ( A.T. Varkey) (Dr. A. L. Saini) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; Dated: 17/06/2020 Biswajit, SPS
4 Bajrang Lal Agarwal A.Y: 2013-14
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to :