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Income Tax Appellate Tribunal, AGRA BENCH, AGRA
Before: SHRI LALIET KUMAR, & DR. M. L. MEENA
Per Dr. M.L. Meena, A.M.:
This bunch of appeals by assessees for different Assessment Years involving common issue of opportunity of being heard, questioning into expate order passed by the ld. CIT(A) are being heard together and and are being disposed of by this composite order.
At the outset, the chartered accountant and lawyers raised common grievance in all these petitions that the assessees case were decided by the lower authority on ex parte basis without affording the reasonable opportunity of hearing to submit the written submissions and evidence. It was submitted that the assessee have duly explained the absence of the assessee during the lower authorities however despite furnishing the sufficient reasons, the lower authorities have decided the matter ex parte by resorting to the decision of Multi-Plan. It was submitted that in the interest of justice all these matters may kindly be referred back to the file of the CIT appeal for de-novo adjudication of appeals.
I.T.A No. 96/Agra/2019 5 & 13 Other appeals
The counsels for the assessees relies upon decision of Hon'ble Allahabad High Court in the case of M/s Videocon D2h Ltd (Writ Tax No. 243 of 2016) wherein it was held that on the date of hearing if assessee did not appear, the Assessing officer had the option to fix another date or pass ex-parte order on the very same day. Any order passed on the next date becomes erroneous. 4. Further appellants places reliance on following judicial pronouncements: a) ITAT Agra in the matter of Subhash Chand Sharma, Agra vs ITO 2(2), Agra, ITA 327/ Agra/2017 " 14- Considering the facts as discussed above that the cash deposit and withdrawl in the bank account was made regularly by the assessee during the year, it is very reasonable to say that the same was business turnover and therefore only gross profit addition is justified in the facts of the present case. Hence, we are not inclined to agree with the fining of the Ld (CIT)(A) in observing that of peak cash deposits in bank account, ensuring the observation of the AO which was against the principle of 'rule of consistency' on comparison to the preceding assessment year and nature of retail milk business of the assessee. In our considered opinion, such deposits in the bank account would certainly constitute business turnover of the assessee and the income disclosed in the return is justified as reasonable business profit for the year under consideration. In the above view and following the decision of ITAT Lucknow bench, we accept the grievance of the assessee as justified. Accordingly the addition of Rs. 3357510/-is deleted. Thus, the issue in grounds of appeal is allowed." b) ITAT Lucknow in the case of Vishan Lal Lucknow vs Department of Income Tax ITA No. 634/LKW/2014, it has been held as under: " 4.1 From the above paras from the order of Learned CIT (A), it is seen that a clear finding has been given that on perusal of the entries reflected in the said bank account, it was revealed that the cash deposits and withdrawals were made regularly during the year and therefore the
I.T.A No. 96/Agra/2019 6 & 13 Other appeals
Assessing officer was not justified the addition of Rs. 1568500/-. Considering these facts, learned CIT (A) has held that receipts should be treated as turnover of the assessee from the trading of cloth and has directed the Assessing officer to make addition of profit from such turnover outside the books at gross profit rate of 13% of the turnover. Considering the facts, as discussed above that the cash deposit and withdrawl in the Bank account was made regularly by the assessee during the year, it is very reasonable to say that the same business turnover outside books and therefore, only gross profit addition is justified in the facts of the present case. Hence, we don't find any reason to interfere in the order of CIT(A) and therefore, we decline to interfere in the same." 5. The respondent, learned DR had fairly submitted that, that the matter may kindly be remanded back to the file of the Commissioner(A) for a fresh adjudication as the matters were decided by following Multi Plan decision. 6. We have heard the rival contention of the parties and perused the material available on record. As law laid down by the honorable Supreme Court in Catena of judgement that the purpose of tax administration is to collect just and fair tax from the citizen and it should not be an endeavor of the revenue authority to take benefit of ignorance of the citizen or absence of appellant in the proceedings. In the present case the individual assessee are before us who had plead that the absence of AR/ assessee was on account of sufficient reasons. 7. In our considered opinion, the interest of justice, requires that the matters be sent back to the file of the learned CIT(A) for a fresh adjudication on merit. We expect the learned CIT(A) to decide the matter expeditiously after granting sufficient opportunity of being heard to the assessee and he shall grant the assessee sufficient time to produce the evidence/document as may be required for afresh adjudication of the matter. 8. The assessee is also directed to present on each and every date fixed by the CIT(A) and shall not take undue date/adjournment in the matter. It is expected that
I.T.A No. 96/Agra/2019 7 & 13 Other appeals
the appeal shall be decided by the CIT(A) preferably within a period of 6 months from the receipt of this order. 9. Needless to mention that we have not adjudicated the grounds raised before us on merits and have only remanded back the matter to the file of the CIT(A) appeal for deciding the appeal denovo, the learned CIT(A) shall decide the matter without being influenced by any of the observation made herein above in accordance with law. 10. In the result the appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open court on 20 /11/2019.
Sd/- Sd/- (Laliet Kumar) (Dr. M.L. Meena) JUDICIAL MEMBER ACCOUNTANT MEMBER *AKV* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT Sr. PRIVATE SECRETARY ITAT, AGRA