GULAB MARUTI DHAKUNDE,PUNE vs. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE -2 (2), PUNE

आदेश / ORDER PER ANIL CHATURVEDI, AM :

This appeal filed by the assessee is emanating out of the 1. order of Commissioner of Income Tax (A) – 12, Pune dated 19.06.2019 for the assessment year 2011-12.

Assessee is an individual and stated to be engaged in the business of bricks manufacturing. Assessee filed his return of income for A.Y. 2011-12 on 27.07.2011 declaring total income at Rs.4,30,432/-. Subsequently, the case was re-opened by issuing

notice u/s 148 of the Act. Thereafter, Notices u/s 143(2) and

142(1) of the Act were issued to the assessee on 19.11.2018. In

response to notice u/s 148 of the Act, assessee filed his return of

income on 17.11.2018 declaring the total income at Rs.4,30,423/-.

The case was taken up for scrutiny and thereafter, assessment was

framed u/s 143(3) r.w.s. 147 of the Act vide order dt.19.12.2018

and the total income was determined at Rs.10,01,923/-.

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

Ld.CIT(A), who vide order dt.19.06.2019 (in appeal No.PN/CIT(A)-

12/10335/2018-19) 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. On the facts and in the circumstances of the case and in law, the Ld. CIT(Appeal)-12, Pune erred in passing the appellate order dismissing the appeal without affording sufficient and reasonable opportunity of hearing as the four notices mentioned in para 3.1 of the appellate order as issued for hearing on 19/03/2019, 5/0412019, 24/04/2019 and 1210612019, in all, had not been received by the appellant and the grounds raised in the appeal before the Ld. CIT(A) were not adjudicated on merit in the said appellate order. The appeal order so passed by the Ld. CIT(A) without giving sufficient opportunity and so also without considering the grounds raised in merit, being arbitrary, illegal and bad in law be quashed. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A), erred in dismissing the appeal of the appellant without considering and appreciating the facts as detailed in the statement of facts and without appreciating the facts that the Ld. Assessing Officer had erred in reopening the case u/s 147 of the IT Act, 1961 and issuing notice u/s 148 of the said Act without recording proper reasons of income which had escaped assessment under the said provisions, so that an assessment order could be passed legally u/s 143(3) r.w.s. 147 of the Act. The appellate order so passed without considering the reopening of the case wrongly by the Assessing Officer resorting to action u/s 147 / 148 of the Act being illegal and bad in law be quashed. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in passing the Appellate Order without considering and discussing his say in respect of reopening of the case by the Assessing Officer u/s 147 of the I T Act, 1961 and issuing notice u/s 148 of the said Act on certain facts were in passing of the

assessment order u/s 143(3) r.w.s.147 of the Act on a separate set of facts for which the case was not reopened rendering such orders both by the Ld. CIT(A) and Assessing Officer arbitrary, illegal and bad in law and, therefore, such order be quashed. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in dismissing the appeal without affording sufficient and reasonable opportunity of hearing and confirming the addition made by the Assessing Officer of Rs. 5,71,500/- ignoring the facts that the same were the deposits made by the appellant in the Vishveshwar Co-operative Bank, out of the sale proceeds of the assessee's Brick Manufacturing business and also personal service and without appreciating the facts that the Ld. Assessing Officer made such additions without making any verification or calling for details and had decided adversely against the appellant in violation of principle of natural justice, when all such details evidences pertaining to such sources of deposits could be explained by the appellant before both the Authorities. The appellate order so passed dismissing the appeal and in turn confirming the addition being arbitrary, illegal and bad in law be quashed.”

assessee nor any adjournment application was filed. I therefore

proceed to dispose of the appeal ex-parte qua the assessee based

on the material available on record and after hearing the Ld.D.R.

assessment proceedings and ground No.4 is with respect to

addition on account of unexplained deposits.

4.1. During the course of assessment proceedings, on

verification of details of saving bank account of assessee

maintained with Vishveshwar Co-operative Bank, Baner Road

Branch, Pune, AO noticed cash deposits on different dates

aggregating to Rs.5,71,500/-. The assessee was asked to furnish

the information with respect to the source of cash deposits in the

bank account during the year under consideration, to which

assessee submitted that he earned profits from his brick

manufacturing business but failed to furnish to prove the same by

furnishing documentary evidence. Hence, the AO treated the

same as unexplained and accordingly made an addition of

Rs.5,71,500/- 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.

The issue in grounds 1 to 3 are with respect to the re-opening of

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

ground No.4 is with respect to the the addition of Rs.5,71,500/-

on account of unexplained cash deposits in the bank account of

assessee. The perusal of the assessment order reveals that no

details were filed by the assessee before AO and therefore he

considered the entire cash deposits as unexplained and made its

addition. 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

him. 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, 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.

Order pronounced on 25th day of October, 2019.

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

पुणे Pune; �दनांक Dated : 25th 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)-1, Nashik. 4. Pr. CIT-1, Nashik. 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.