ASHWIN A UTTUTKAR,,PUNE vs. INCOME-TAX OFFICER,, PUNE

आदेश / ORDER PER ANIL CHATURVEDI, AM :

This appeal filed by the assessee is emanating out of the order of 1. Commissioner of Income Tax (A) – 8, Pune dated 05.02.2017 for the assessment year 2012-13.

Assessee is an individual stated to be engaged in the business of manufacturing and trading of furniture and furniture hardware. Assessee filed his return of income for A.Y. 2012-13 on 29.09.2012 declaring total income of Rs.18,66,130/-. The case was selected for scrutiny and thereafter

notice u/s 143(2) and 142(1) of the Act were issued and served on the

assessee. AO has noted that there was no compliance from the assessee

and therefore, he passed order u/s 144 of the Act vide order dt.02.03.2015

determining the total income at Rs.72,85,840/-. Aggrieved by the order of

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

dt.05.02.2017 (in appeal No.PN/CIT(A)-8/ITO Wd-12(5)/210/2016-17)

dismissed the appeal of the assessee. Aggrieved by the order of Ld.CIT(A),

assessee is now in appeal before us and has raised the following grounds :

“1. The learned CIT(A) erred in confirming the addition of Rs. 6,58,833/- made by the learned A.O.in respect of sundry creditors without appreciating that the said addition was not warranted at all. 2. The learned CIT(A) erred in confirming the addition of Rs.10,19,676/- made by the learned A.O. in respect of capital introduced by the assessee without appreciating that the said addition was not warranted at all. 3. The learned CIT(A) erred in -confirming the addition of Rs. 37,40,000/-- made by the learned A.O. in respect of gifts received by the assessee without appreciating that the said addition was not warranted at all. 4. The learned CIT(A) erred in confirming the disallowance of depreciation of Rs. 1,2001- made by the learned A.O. without appreciating that the said disallowance was not justified at all. 5. The learned CIT(A) erred in not admitting the additional evidences submitted by the assessee in respect of the above referred additions on the ground that the assessee had failed to establish any sufficient cause in not submitting the said evidences before the learned A.O. and thereby, erred in sustaining the additions made by the learned A.O. 6. The learned CIT(A) erred in not appreciating that there was a sufficient cause on the part of the assessee in not submitting the various evidences before the learned A.O. and therefore, she ought to have admitted the various additional evidences submitted by the assessee and the various additions made by the learned A.O. should have been deleted.”

29.09.2014. He submitted that Mr. Ashwin Arun Utturkar, who is the legal

heir of assessee responding to the case was out of station on business tour

from 02.02.2015 to 14.02.2015 and therefore could not appear before the

AO. AO therefore passed order u/s 144 of the Act. He submitted that

before Ld.CIT(A), assessee filed additional evidences in support of his case

but the additional evidences filed by the assessee were not accepted or

considered by Ld.CIT(A) and Ld.CIT(A) upheld the order of AO. He

submitted that considering the fact that the legal heir of the assessee could

not appear before AO on account of his business tour and since the

additional evidences filed by the assessee before Ld.CIT(A) has not been

considered, in the interests of justice, one more opportunity be granted to

assessee to present his case. He further assured that assessee will co-

operate by filing the requisite details and also appear before the authorities.

Ld.D.R. objected to the prayer of Ld.A.R. and submitted that various

opportunities were already granted to the assessee and therefore assessee

does not deserve second innings.

record. In the present case, AO passed order u/s 144 of the Act making the

additions on account of depreciation, unproved credits, introduction of

capital and gifts. Aggrieved by the order of AO, legal heir of the assessee

carried the matter before Ld.CIT(A). We find that Ld.CIT(A) has passed an

order and dismissed the appeal of the assessee without going into the merits

of the issue before him and has also refused to admit additional evidences

that the assessee had filed. 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 lower

authorities should have decided the grounds of appeal of the assessee on

merits thereof. Further it is a settled law and also observed by the Hon’ble

Apex Court in various decisions that principles of natural justice require

that a person should not be condemned unheard, that decisions should not

be reached behind a person and that a person should not be precluded from

participating in them. Considering the aforesaid facts, we are of the view

that in the interests of justice and fair play, the assessee be given one more opportunity to present his case before the Ld.CIT(A). We therefore remit the issue back to the file of Ld.CIT(A) to decide the issue on merits and in accordance with law. Needless to state that Ld.CIT(A) shall grant adequate opportunity of hearing to both the parties. Assessee is also directed to promptly furnish all the details called for by the authorities. In view of our decision to restore the issue to Ld.CIT(A), we are 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 19th day of August, 2019.

Sd/- Sd/- (SUSHMA CHOWLA) (ANIL CHATURVEDI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER

पुणे Pune; �दनांक Dated : 19th August, 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)-8, Pune. 4. Pr. CIT-4, Pune. 5 �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “बी” / DR, ITAT, “B” 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.