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Income Tax Appellate Tribunal, DELHI “SMC” BENCH: NEW DELHI
Before: SHRI KUL BHARAT
ORDER PER KUL BHARAT, JM :
This appeal filed by the assessee for the assessment year 2010-11 is directed against the order of Ld. CIT(A)-20, New Delhi dated 22.11.2018.
The assessee has raised following grounds of appeal:-
1. “That the appellant Hari ram Verma is a registered government contractor and filed an income tax return last 15 years in contractor ward 38(1) C.R.building New Delhi.
2. That the Appellant (assesses) has not received any notice of assessment nor has the knowledge of assessment for the asstt year 2010/11. The Ld. Officer of ward no 62(4) assessed ex-parte order without consider the fact of filed income tax return and created an additional demand of Rs.508360/- is bad in law. 3. That the appellant has issued 2 PAN. PAN 1 ACAPV8292K PAN 2 AATPV9486A . Appellant already surrender PAN 1 ACAPV8392K on dated 09/12/2013 at ward no 38(1) C. R.BUILDING NEW DELHI. On request letter appellant pray to the A. 0 all demand of PAN 1 transfer in PAN 2 (copy of request letter enclosed herewith).
4. That the appellant has been filed income tax return with Audited balance sheet, profit & loss account, trading account for the assessment year 2010/11 vide return no 158118870230910 on dated 23/09/2010 disclosed both pan, PAN 1 & PAN 2. The gross receipts of both PAN( PAN 1&PAN2)of Rs 1,32,27,729/-. Appellant declared net profit of Rs 6,24, 630/-and claimed refund of Rs 208754/- in income tax return for the assessment year 2010-11 A.O of ward no 38(1) C. R. BUILDING NEW DELHI assessed u/s 143(l)and created demand of Rs 109850/-on dated 15/04/2011 instead of refund 208754/-and mentioned in intimation u/s 143(l)"the demand is arising as the prepaid taxes claimed by you are not matching with the data available in the system may kindly write A.O give supporting documents of your claim" due to T.D.S of PAN 1& PAN 2 not matched data available on record. Appellant filed manually T. D.S certificate of PAN 2 To the A. 0 of ward no 38(1) C.R.BUILDING NEW DELHI. After verification of T.D.S certificate A.O. issued refund in the name of Hari ram verma on dated 08/09/2011 vide speed post no EQ8218719451N But the Ld. officer of ward no 62(4)considered as not filed income tax return how it possible INCOME TAX REFUND without filling of income tax return. So this Ex party assessment order is " EYE MISTAKE OF LAW" Thus this Ex-party order is merit to set-aside.
5. THAT This case has been selected for scrutiny through CASS and served notice of 142(1) on dated 25/08/2012 after verification of all required documents with T.D.S certificate passed order U/s 143(3) of the income tax act 1961 on dated 27/12/2013 and raised demand of Rs 58910/- which is already adjusted in refund.
6. That the appellant appeared time to time to the CIT (A) XX, without delay or absent and filed all required documents and also filed request letter of cancel of PAN 1 which is submitted in ward no 38(1) C.R.BUILDING NEW DELHI ( contractor ward).
That the penalty proceeding of 271© is pending as per assessment order .the assesses has not cancel any income so not arise a question of penalty of 271(c) of income tax act. It is therefore requested sir kindly consider of above cited matter and passed order in favour of the appellant.”
No one appeared on behalf of the assessee despite various opportunities.
Therefore, the appeal was taken up for hearing in the absence of the assessee and material available on record. It is seen that the assessment order was passed ex-parte to the assessee.
Ld. Sr.DR submitted that the Revenue would have no objection if the matter is restored to the Assessing Officer.
I have heard Ld. Sr. DR and perused the material available on record. It is seen from the record that Ld.CIT(A) has decided the issue by observing as under:-
“7. Decision 7.1 Ground no.1 is general in nature and does not required any separate adjudication 7.2. Ground No.2 to 5 7.2.1 The Assessing Officer found that the appellant has not filed his ITR for the impugned year as per the details of 26As amounting to Rs.1,23,21,654/- with the PAN AATPV9486A. The Assessing Officer issued notice u/s 148 of the Act to the appellant to file his Return of Income. But the appellant neither filed return nor complied with the subsequent notices and letters issued by the Assessing Officer. The Assessing Officer then completed the assessment of the case u/s 144 of the Act estimating the income of the appellant @8% of the gross receipt.
Further, the Assessing Officer as per the report of AIR found that the appellant received interest on FDR amounting to Rs.152099/- and interest in saving account amounting to Rs.696/- during the financial year. The same were added to the total income of the appellant. 7.2.2. The appellant during appeal hearing submitted that he was issued two PAN with numbers AATPV9486A and ACAPV8292K. He filed ITR for the A.Y. 2010-11 in PAN ACAPV8292K which was duly acknowledged. The appellant further claimed that in his return under the PAN ACAPV8292K he has shown gross turnover of Rs.1,32,27,729/- and shown on net profit of Rs.678593.84. The appellant filed his 26As manual TDS of both the PAN, acknowledgement of return for A.Y.2010-11 balance sheet with P & L account, trading account, details of turnover. 7.2.3 The above details submitted by the appellant were forwarded to the Assessing Officer for further verification and report u/s 254 of the Act. The Assessing Officer reported that there is nothing on record regarding the request of the appellant for cancellation of the PAN in which income has been assessed u/s 147/144 of the Act. 7.2.4 The appellant in his rejoinder to the remand report submitted that he has applied for deactivation of PAN AATFV948M. He has also declared interest income of Rs.57428/- in his return filed under the PAN ACAPV8292K the ex-parte assessment order made by the AO is not justified. 7.2.5 It is obvious from the details above that the appellant has received contract receipts in both the PANs for the impugned financial year. The return filed by the appellant under PAN AATPV9486A carries gross contract receipts of Rs.1,32,27,729/- but the same does not include the gross contract receipts of Rs,.1,23,21,654/- in the PAN ACAFVB292K which the appellant has not disclosed in his gross turnover in his Return of Income filed under PAN AATPV9486A. The gross turnover of Rs.123,21,654/- as detected by AO has not offered to tax by the appellant and the AO is correct in estimating income from the same and to bring it Into the tax net. In this PAN ACAPV8292K there is also credit of interest income of Rs.152099/- and savings bank interest of Rs.696/- which the appellant did not show in his Return of Income filed under PAN AATPV9486A. AO is correct in taxing the same. Thus, the action of the AO is confirmed in estimating the income of the appellant u/s 147/144 of the Act. The AO is directed to find out whether the appellant u/s 147/144 of the Act. The AO is directed to find out whether the appellant had any gross turnover in the PAN ACAPV8292K in subsequent years and had any gross turnover in the PAN ACAPV8292K in subsequent years and take steps to -deactivate this PAN of the appellant.
In the result, the appeal is dismissed.”
I have given thoughtfully consideration to the facts and circumstances of the case and material available on record. I am of the considered view that it would sub-serve the interest of principle of natural justice if the assessee is given opportunity to present his case before the assessing authority. I therefore, set aside the impugned order and restore the issue of assessment to the file of the Assessing Officer to frame the assessment afresh. Needless to say that the Assessing Officer would provide adequate opportunity of hearing to the assessee. The grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 27th December, 2021.