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Income Tax Appellate Tribunal, CHANDIGARH BENCHES, ‘SMC’, CHANDIGARH
Before: SHRI N.K. SAINI
This is an appeal by the Assessee against the order dt. 27/09/2018 of Ld. CIT(A)-2, Chandigarh.
In the present appeal Assessee has raised the following grounds:
That on the facts, circumstances and legal position of the case, the Worthy CIT(A) in Appeal No. 10471/2/17-18 dated 27.09.2018 has erred in passing that order in contravention of the provisions of S. 250(6) of the Income Tax Act, 1961.
That on facts, circumstances of the case and in law, the Worthy CIT(A) has erred in passing the order on ex-parte basis even when reasonable opportunity of being heard was not allowed and there existed reasonable cause for non- appearance on the appointed date. 3. That on facts, circumstances and legal position of the case, the Worthy CIT(A) has erred in confirming the action of Ld. AO in initiating, continuing and then concluding the impugned assessment u/s 147 r.w.s. 148 of the Act and hence the impugned assessment deserves to be quashed. 4. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in confirming the action of Ld. AO in making addition of Rs. 33,00,000/- on account of alleged unexplained cash deposit in HDFC Bank even when such credits were from declared sources. 5. That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same.
The main grievance of the assessee vide ground no. 2 relates to the ex- parte order passed by the Ld. CIT(A) without providing reasonable opportunity of being heard to the assessee.
Facts of the case in brief are that the Assessing Officer on the basis of information available in Non-filing monitoring system NMS that the assessee has
deposited cash of Rs. 33,00,000/- in his saving bank account maintained with HDFC Bank Ltd. initiated the proceedings under section 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’). The assessee during the course of assessment proceeding submitted that he had entered into an agreement to sell the property to one Shri Sandeep Kumar for a consideration of Rs. 1,50,00,000/- against which he had received Rs. 6,00,000/- on 21/04/2009 and Rs. 24,00,000/- on 15/06/2009 which were deposited in the bank account maintained with HDFC Bank Ltd. The Assessing Officer asked the assessee to furnish identity proof of Shri Sandeep Kumar and to prove the genuineness of the transaction as well as credit worthiness of Shri Sandeep Kumar. According to the Assessing Officer the assessee did not file any explanation, he therefore made the addition of Rs. 33,00,000/-.
Being aggrieved the assessee carried the matter to the Ld. CIT(A) who dismissed the appeal by passing the ex-parte order.
Now the assessee is in appeal.
Ld. Counsel for the Assessee submitted that no notice for hearing was served upon the assessee who was out of India at the relevant time when the appellate proceedings were undertaken by the Ld. CIT(A). He furnished the affidavit dt. 20/02/2019 of the assessee in this regard, which is placed on record. He also furnished the copy of Passport in support of his submission that the assessee was out of country from 29/05/2018 to 17/11/2018 and was not having any knowledge of the dates of hearing. He requested to set aside the case to the file of the Ld. CIT(A) to be adjudicated after providing due and reasonable opportunity of being heard to the assessee.
In his rival submission the Ld. Sr. DR strongly supported the orders of the authorities below.
I have considered the submissions of both the parties and perused the material available on record. In the present case it is an admitted fact that the Ld. CIT(A) passed the impugned order ex-parte. He simply stated that the notice for hearing on 27/09/2018 was issued on 17/09/2018 but nobody attended, however, it is not brought on record as to whether the said notice was served upon the assessee. It is also noticed that the assessee was not in India during the period when the Ld. CIT(A) issued the notice for hearing which is evident from the affidavit as well as copy of the passport furnished by the assessee. I
therefore considering the totality of the facts deem it appropriate to set aside this case back to the file of the Ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.
In the result, appeal of the assessee is allowed for statistical purposes.
(Order pronounced in the open Court on 20/02/2019.)
Sd/- (N.K. SAINI) VICE PRESIDENT Place: Chandigarh Dated : 20/02/2019 AG Copy to: The Appellant, The Respondent, The CIT, The CIT(A), The DR