Loading judgment…
No AI summary yet for this case.
आदेश/Order आदेश आदेश आदेश PER N.K. SAINI, VICE PRESIDENT This is an appeal by the Assessee against the order dt. 18/03/2019 of Ld. CIT(A)-1, Amritsar. 2. Following grounds have been raised in this appeal:
On the law & facts and of the case, the Hon'ble CIT(A) was not justified in refusing to decide on ground no. 1 raised in the appeal on the plea that this is general in nature. The said ground reads as " The assessee was not served any questionnaire. He didn't get an opportunity to present the case".
On the law and facts of the case, the Hon'ble C1T (A) has erred in upholding the assessment made by Ld. ITO without serving the appellant assessee a notice on the address mentioned in Appeal Form 35. 3. The Hon'ble C1T(A) has also erred in sustaining the assessment made by Ld. A.O at his back without giving the appellant an opportunity of being heard .
4. The Hon'ble CIT(A) has erred in upholding the addition made by Ld. A.O without evaluation of material on record..He
The Appellant craves leave to add, amend, alter or substitute any other ground necessary to meet ends of justice.
During the course of hearing nobody was present on behalf of the assessee however written submissions has been furnished which is placed on record and has been considered while deciding the appeal of the assessee.
Facts of the case in brief are that the A.O. on the basis of AIR information that the assessee had made payment of Rs. 4,61,200/- against Credit Card, issued notice under section 133(6) of the Act to the assessee which remained un-complied. Thereafter the A.O. issued the notices under section 148 of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’) and under section 142(1) of the Act. In response, the assessee furnished the return of income on 17/01/2011 declaring an income of Rs. 6,640/-. The A.O. however framed the assessment exparte under section 144 of the Act by making an addition of Rs. 4,61,200/-.
5. Being aggrieved the assessee carried the matter to the Ld. CIT(A) who dismissed the appeal by passing the exparte order and sustained the addition made by the A.O. Ld. CIT(A) mentioned that the appeal was fixed for hearing on 05/10/2018, 22/02/2019 and 08/03/2019 but none appeared nor any written submission had been filed.
Now the assessee is in appeal.
Ld. Counsel for the Assessee in his written submission has mentioned that no notice was served upon the assessee on the address as provided in Column No. 17 of Form No. 35 and that the Ld. CIT(A) did not adjudicate. Ground No. 1 of the appeal which says that the assessee did not receive any Questionnaire. The written submission furnished by the Ld. Counsel for the Asessee read as under :
''Your Honors. The situation in Kashmir is no secret from any body Closure of business establishments on account of Hartals, curfews & Cordon & search operations has been a routine affair. Businesses are seriously disrupted & so are the communications. It has also come to light that even Postmen render deficient services due to above reasons & show letters delivered when in fact these are not. In view of these circumstances, the appellant begs to say that 1) That he was deprived of an opportunity to present his case due to non- receipt of notices both at assessment & appeal stage.
2) That Ld. CIT (A) was not justified in dismissing the appeal on the ground of non-response of the appellant assessee because he didn't serve any notice on address as provided by him in column 17 of Form 35.The said address is of Counsel of the assessee M/s Wahidi Associates, CA's who is a senior member of the profession. Even his telephone No. is provided in Form 35A & he could have been informed telephonically in view of prevailing situation in Kashmir valley.
3) The Ld. CIT(A) was also not justified in failing to adjudicate ground No. 1 of the appeal which says that the appellant assessee didn't receive any questioner. He should have, in the least called a remand report from the assessing officer t0 know whether notices/questioner were duly served on the assessee.
4) It is a well settled law that even if an assessment is made u/s 144, the Ld. ITO is bound to take all available material on record. In the instant case the Ld. ITO has violated this cardinal principle which makes the assessment made by him u/s 144 bad in law as he has not perused the available material on record. For instance, from the ITR filed by appellant assess, Ld. ITO has taken only income component from assessee's return (Para 3 of assessment order) while ignoring other details like details of bank account & TDS data. He could have simply requisitioned assessee's bank statement from the bank & known that card payments have been duly made from his bank. Even credit for TDS of Rs. 20,357/- which even appears on appellant assessee's form 26AS has not been given.
In view of above arguments, it is prayed that the order of the LD. ITO may be quashed or in alternative set aside back to him for proper assessment after giving the appellant assessee an opportunity of being heard.
In his rival submissions the Ld. DR strongly supported the impugned order passed by the Ld. CIT(A).
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) passed the impugned order exparte, he simply stated that the appeal was fixed for hearing on 05/10/2018, 22/02/2019 and 08/03/2019, however, nowhere it is mentioned that the notice for hearing was served upon the assessee. 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.