SH. GURDIP SINGH,JALANDHAR vs. INCOME TAX OFFICER, PHAGWARA

Following grounds have been raised in this appeal: On the facts and in the circumstances of the case and in law the Ld. Commissioner of Income Tax(Appeals) is wholly unjustified and erred in:-

Dismissing the appeal by unlawfully opining that the assessee is not interested in pursuing the appeal against the ex parte order passed by the AO u/s 144 overlooking the various grounds of appeal so raised.

Unlawfully disposing of the appeal exparte without going to the merits of the case as per grounds of appeal.

Dismissal of the appeal without going into the merits is a denial of principles of natural justice.

In confirming the unlawful order of the AO, passed without complying with the mandatory provisions of section 143(2) of the Income Tax Act 1961, thereby invalidating the order under reference.

In confirming the order u/s 144 of the Income Tax Act,1961 by the AO at the income of Rs. 1,98,49,700/-, made arbitrarily, baselessly, on a purely guess work based on conjectures an surmises without taking cognizance of the return of income filed on 13-11- 2017 vide receipt no. 489, ignoring the request for hearing dated 17-11-2017. 8. In confirming the unlawful action of the ITO in forming belief for issuing notice u/s 148 of the Income Tax act, 1961 on the clear basis of cash deposits in the bank accounts, which is not a tangible material, thereby upholding the assessment based upon it on the amount of Rs.1,98,49,700/-.

In confirming the order of the AO assessing at Rs. 1,98,49,700/-, when the AO is wholly unjustified in initiating the proceedings u/s 147/148 of the Income Tax Act,1961 by proceeding on fallacious presumptions that bank deposits constituted undisclosed income overlooking the fact that deposits need not necessarily be the income of the assessee.

In confirming the order of the AO assessing the cash bank deposits Rs. 1,98,49,700/- denying the benefit of telescoping of the cash deposited against cash withdrawn, to which the assessee is entitled.

That the appellant seeks leave to add or amend any of the grounds of appeal on or before the appeal is finally heard and disposed off.

That the appeal is filed with in time.

Vide ground no. 1 to 5 the grievance of the assessee relates to the exparte order passed by the Ld. CIT(A).

Facts of the case in brief are that the A.O. on the basis of AIR information that the assessee had deposited a sum of Rs. 1,98,49,700/- in cash in his Saving Bank Account No. 10951600000147 with HDFC Bank Limited and A/c Nos. 007901505916 & 007901501107 with ICICI Bank, initiated the proceedings under section 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’) and issued notices under section 148 & 142(1) of the Act. The A.O. mentioned that in response to the said notices, the assessee attended and sought adjournment from time to time. However, the AO framed the assessment exparte and made the addition of Rs. 1,98,49,700/-.

Being aggrieved the assessee carried the matter to the Ld. CIT(A) who dismissed the appeal exparte by observing that whenever the case was fixed for hearing the assessee either not attended or sought adjournment. He has mentioned the dates for hearing in para 3 of the impugned order, for the cost of repetition the same are not reproduced herein.

The Ld. CIT(A) sustained the addition made by the A.O.

Now the assessee is in appeal.

Ld. Counsel for the assessee submitted that the Ld. CIT(A) issued the notice of hearing on 16/11/2018 which the assessee complied and attended, and sought adjournment for 26/11/2018 for the reasons that his counsel was out of station. However on the said date i.e; 26/11/2018, the assessee had to appear before he Hon'ble High Court in the criminal proceedings and could not attend the hearing before the Ld. CIT(A) who passed exparte order on 27/11/2018 by mentioning that nobody attended. He submitted that the opportunity of being heard was not provided by the Ld. CIT(A). He requested to restore the matter back to the file of the Ld. CIT(A).

In his rival submissions the Ld. Sr. DR supported the impugned order passed by the Ld. CIT(A) and furnished the written submissions which read as under:

We have considered the submissions of both the parties and perused the material available on the record. In the present case it is noticed that the Ld. CIT(A) himself mentioned that when the case was fixed for hearing on 16/11/2018 the assessee sought adjournment for 26/11/2018. It is also noticed that the Ld. CIT(A) dismissed the appeal on 27/11/2018 by mentioning that nobody attended, in response to the issue of notice of hearing on 27/11/2018. However nothing is brought on record to substantiate that any notice for hearing was served upon the assessee for hearing on 27/11/2018. It is well settled that nobody should be condemned, unheard as per the maxim, “audi alteram partem”.

We therefore by keeping in view the principles of natural justice, deem it appropriate to set aside this case back to the file of Ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

In the result, appeal of the Assessee is allowed for statistical purposes.