ASHISH VILAS PUNDLIK,PUNE vs. INCOME-TAX OFFICER, WARD - 5 (2), PUNE

आदेश / ORDER PER ANIL CHATURVEDI, AM :

Assessee is an individual. In this case, as per AIR information assessment was initially completed u/s 143(3) r.w.s.

147 of the Act on 18.03.2013. Thereafter, assessment was re-

opened u/s 147 of the Act by issuing notice u/s 148 of the Act

dt.23.03.2015 and was served on assessee on 27.03.2015. In

response to notice u/s 148 of the Act, assessee replied that the

return of income filed earlier may be treated as return of income

filed in response to notice u/s 148 of the Act. Subsequently,

notices u/s 143(2) and 142(1) of the Act dated 10.12.2015 were

issued. Thereafter, the case was taken up for scrutiny and

assessment was framed u/s 143(3) r.w.s. 147 of the Act vide order

dt.27.01.2016 and the total loss was assessed at Rs.22,76,613/-.

Aggrieved by the order of AO, assessee carried the matter before

Ld.CIT(A), who vide order dt.23.01.2019 (in appeal No.PN/CIT(A)-

4/Wd-5(2), Pune/238/ 2016-17) dismissed the appeal of assessee.

Aggrieved by the order of Ld.CIT(A), assessee is now in appeal and

has and raised the following grounds :

“1 Appellant contends that, the learned AO erred in law and on facts in assuming jurisdiction u/s 147 of the ITA, 1961, as necessary sanction of the learned JCIT, which is mandatory requirement of section 151 of the ITA, 1961, is not discerning from:

a) notice u/s 148 of the ITA, 1961; b) reasons record by the learned AO and c) assessment order and assessment records

As such, appellant contends that, order passed u/s 143(3) r.w.s. 147 of the ITA, 1961 is bad in law.

assessment proceedings and ground No.4 to 6 are with respect to

addition of Rs.19,00,000/- u/s 69C of the Act. All the grounds are

considered together.

4.1. During the course of assessment proceedings, on

verification of cash books of assessee, AO noticed that assessee

had made cash payments aggregating to Rs.19,00,000/-, to Shri

Sanjay Wagholikar on different dates which according to AO had

escaped assessment. On inquiry assessee submitted that cash

payments were made to Shri Sanjay Wagholikar to discharge

business liability but failed to prove the nature of business and

also could not produce any documentary evidence to prove that

there was business exigency with Shri Sanjay Wagholikar. As

assessee did not offer any satisfactory explanation in respect of

transactions with Shri Sanjay Wagholikar, AO invoked the

provisions of Sec.69C of the Act and accordingly made an addition

of Rs.19,00,000/- on account of unexplained expenditure to the

total income of the assessee. Aggrieved by the order of AO,

assessee carried the matter before Ld.CIT(A), who upheld the order

of AO.

Aggrieved by the order of Ld.CIT(A), assessee is now in

appeal.

parte order and has not decided the issue on merits. He

submitted that non-attendance on the last date of hearing before

Ld.CIT(A) was on account of non-serving of notice. He submitted

that the matter may be remitted back to Ld.CIT(A) for adjudication

on merits and further assessee undertakes to appear before

Ld.CIT(A). Ld. D.R. on the other hand supported the order of lower

authorities.

on record. The issue in grounds 1 to 3 is with respect to the re-

opening of assessment proceedings u/s 143(3) r.w.s 147 of the Act

and ground Nos.4 to 6 is with respect to the addition of

Rs.19,00,000/- on account of unexplained cash payments made

to Shri Sanjay Wagholikar. The perusal of the assessment order

reveals that no details were filed by the assessee before AO in

respect of cash payments to Shri Sanjay Wagholikar and therefore

he considered the entire cash payments as unexplained

expenditure and made its addition u/s 69C of the Act. The order

of Ld.CIT(A) reveals that Ld.CIT(A) has passed an ex-parte order

without deciding the issue on merits. It is a settled law that

Ld.CIT(A) has no jurisdiction to dismiss the appeal of the assessee

without going into the merits of the issue before her. Even in an

ex-parte order, the Ld.CIT(A) should have decided the grounds of

appeal of the assessee on merits thereof. Considering the aforesaid

facts and in view of Ld.A.R.’s undertaking that assessee will co-

operate and appear before Ld.CIT(A), I am of the view that in the

interests of justice and fair play, the assessee be given one more

opportunity to present his case before Ld.CIT(A). I therefore remit

the issue back to Ld.CIT(A) to decide the issue on merits in

accordance with law. Needless to state that Ld.CIT(A) shall grant

adequate opportunity of hearing to both the parties. In view of my

decision to restore the issue to Ld.CIT(A), I am not adjudicating on

merits the grounds of the appeal raised by the assessee. Thus, the

grounds of assessee are allowed for statistical purposes.

statistical purposes.

Order pronounced on 30th day of October, 2019.

Sd/-- (ANIL CHATURVEDI) लेखा सद�य / ACCOUNTANT MEMBER

पुणे Pune; �दनांक Dated : 30th October, 2019. Yamini

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. CIT(A)-4, Pune. 4. Pr. CIT-3, Pune. 5 �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “एक सद�य” / DR, ITAT, “SMC” Pune; गाड� फाईल / Guard file. 6.

आदेशानुसार/ BY ORDER

// True Copy // व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune.