SHRI NIRAV DINESHBHAI PATEL,LUNAWADA vs. ITO, WARD-1,, LUNAWADA

आदेश/O R D E R

PER AMARJIT SINGH - AM:

During the course of assessment the AO noticed that assessee has deposited total amount of Rs. 18,79,000/- in cash on different date in his bank account maintained with Lunawada Peoples Cooperative Bank Ltd. The AO stated that on query the assessee responded that neither he has any bank account nor any cash deposit made in any other bank account except Dena Bank Account. Thereafter, the AO has issued a show-cause notice dated 12.02.2016 to the assessee to explain why not the cash deposit of Rs. 18,79,000/- should be treated as unexplained concealed income. The assessee has failed to furnish any reply before the AOconsequently, the AO has treated the impugned cash deposit as unexplained u/s. 69A of the Act and added to the total income of the assessee.

During the course of appellate proceeding before us the Ld. Counsel has filed Paper Book containing detail of information and submission furnished before the AO and CIT(A) during the course of assessment and appellate proceeding. The Ld. Counsel contended that AO has not given him sufficient opportunity to explain the impugned cash deposit of Rs. 18,79,000/-. The Ld. Counsel has contended it was brought to the notice of the Ld. CIT(A) that AO has not granted sufficient opportunity and assessment order was passed on 24.02.2016 without considering the genuine adverse circumstances that consultant of the assessee could not attend the hearing on 22.02.2016 because of attending of religious ceremony at out station. It is also submitted that these material facts were brought to the notice of the AO before the date of hearing i.e. 22.02.2016.In view of the aforesaid circumstances the Ld. CIT(A) was requested to consider the supporting material and evidences in view of insufficient opportunity provided by the AO to adjudicate the issue on merit.

We have heard both the sides and perused the material on record. The AO has completed the assessment under sec. 143(3) on 26.02.2016. The cash deposit of Rs. 18,79,000/- in the saving bank A/c was added to the total income of the assessee u/s. 69A of the Act as the assessee has failed to substantiate the source of deposit with supporting evidences. With the assistance of the Ld. Representatives we have gone through the material on record and it is noticed that assessee in his submission before the Ld. CIT(A) has pleaded that it was brought to the notice of the AO that Counsel of the assessee would not be available on the date of hearing fixed on 22.02.2016 because of preoccupied with religious ceremony at out of station.Without considering the genuine hardship of the assessee the assessment order was finalized on 26.02.2016 without providing any other opportunity to the assessee. After considering the foregoing facts we observe that Ld. CIT(A) reiterated the contentions of the AO without considering aforesaid submission of the assessee and the circumstances under which he was not able to attend the hearing fixed on 22.02.2016. The assessee has demonstrated with relevant supporting material as elaborated above that the AO has passed the assessment order without providing adequate opportunity.

In the light of the above infirmity and shortcoming in the decision of the Ld. CIT(A) for not adjudicating the issue on merit without rebutting the submission of the assessee, we restore this issue to the file of the Ld. CIT(A) to adjudicate the same on merit after offering adequate opportunity to the assessee. Therefore, appeal of the assessee is allow for statistical purposes.

This Order pronounced in Open Court on 26/06/2019