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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No. 184/CTK/2017 Assessment Year : 2011-2012
Sri Gopinath Mohanty, Plot Vs. DCIT, Circle 2(1), No.550/2437, Upper Kanan Bhubaneswar Vihar, Phase-2, Jayadev Kishaya Kendra, Patia, Bhubaneswar. PAN/GIR No.AFMPM 4226 P (Appellant) .. ( Respondent)
Assessee by : Shri Dillip Kumar Mohanty, AR Revenue by : Shri D.K.Pradhan, DR
Date of Hearing : 06/03/ 2018 Date of Pronouncement : 23 /03/ 2018
O R D E R Per N.S.Saini, AM This is an appeal filed by the assessee against the order of the
CIT(A)- 1, Bhubaneswar dated 7.11.2016 for the assessment year 2011-
The assessee has raised the following grounds of appeal:
“1. That the assessment order dated 12.3.15 passed by the AO and order dated 7.11.2016 passed by the CIT(A)-1, Bhubaneswar are void abinito, against the natural justice, unjustified, erroneous, arbitrary, contrary to facts , bad in law, without jurisdiction and/or in excess of jurisdiction and legally untenable. 2. For that in absence of notice u/s.143(2) of the I.T.Act, 1961 the proceeding initiated and completed thereafter u/s.144 are without \ jurisdiction, illegal and not sustainable on fact and law, hence liable to be quashed. 3. For that the assessment as framed by the Learned Assessing Officer is not based on fact and therefore not maintainable in the eyes of law.
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That the Ld CIT Appeals -I, Bhubaneswar has erred on fact as well as on law in dismissing the appeal in lime line, even without considering the merits of the case otherwise. 5. For that the Ld. A.O. as well as the Ld. CIT Appeals-I has erred on fact and law in considering Rs. 72,878.00 as income under the head other sources and added back to the total income without a speaking order only placing reliance on the statement of 26AS. 6. For that the Ld. A.O. as well as the Ld. CIT (A)-l, is arbitrary & unjustified to add a sum of Rs. 19,37,000/- under the head cash credit U/s. 68 of the I.T. Act, without any speaking order, only placing reliance on the AIR 8s CIB Information and as such the addition of the aforesaid sum are not only unjustified but also illegal 8s liable to be deleted. 7. For that the addition of Rs. 3,32,000/- as unexplained expenditure U/s. 69 of the I.T. Act on the basis of the AIR information without any independent enquiry, are not only without authority of law but also unjustified, illegal and arbitrary. 8. For that the order of assessment as framed is otherwise bad in law and liable to be quashed. 9. For that the assessee was deprived from the benefit of reasonable opportunity of being heard and deprived from the benefit of natural justice. 10. That the appellant craves leave to add to supplement modify the grounds herein above before or at the time of hearing of the appeal.” 3. The appeal filed by the assessee is barred by limitation by 63 days.
The assessee has filed condonation petition supported by affidavit for
condoning the delay in filing the appeal. After going through the
condonation petition, we find that the assessee had reasonable cause for
not filing the appeal within the stipulated time. Ld D.R. did not have any
objection for condoning the delay. We, therefore, condone the delay of
63 days in filing the appeal before the Tribunal and admit the appeal for
hearing.
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At the outset, ld A.R. of the assessee submitted that the
assessment has been made by the Assessing Officer u/s.144 of the Act on
12.3.2015 as the assessee failed to appear before the Assessing Officer
due to prolonged illness of his mother, who ultimately succumbed to
death. In support of his contention that death of Lakshmi Mohanty,
mother of the assessee on 22.1.2015, a certificate dated 18.2.2015
issued by Cuttack Muncipal Corporation is placed on record. Ld A.R. also
submitted that after the death of his mother, the assessee was not in a
sound mind and for the same reason, the assessee also could not appear
before the CIT(A) and hence, the CIT(A) passed the order exparte without
affording proper opportunity to the assessee. He prayed that matter
should be restored back to the file of the Assessing Officer to present the
case of the assessee as he was prevented by a reasonable cause for not
complying with the notice of hearing issued by the Assessing Officer and
the CIT(A). It was submitted that the assessee is having all evidences
and explanations and the assessee has a very good case in his favour
which the assessee will be able to prove before the Assessing Officer by
filing necessary evidences and details.
On the other hand, ld D.R. vehemently opposed the submission of
ld A.R. of the assessee.
We have heard the rival submissions, perused the orders of lower
authorities and materials available on record. We find force in the
submission made by ld A.R.of the assessee. The evidences produced
before us show that the assessee was under the mental agony due the
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illness of his mother and consequent death on 22.1.2015 and further
depression post death, which fact is proved by filing the death certificate
before us. We are of the considered view that in the interest of
rendering substantial justice to the assessee, the order of the CIT(A)
should be set aside and matter should be restored back to the file of the
Assessing officer to reframe the assessment after allowing reasonable and
proper opportunity of hearing to the assessee. The assessee is directed
to produce all details and evidences before the Assessing Officer. Hence,
the appeal of the assessee is allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for
statistical purposes.
Order pronounced on 23 /03/2018. Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 23 /03/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : 2. The Respondent. 3. The CIT(A)- 4. Pr.CIT- 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//
BY ORDER,
SR.PRIVATE SECRETARY ITAT, Cuttack