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Income Tax Appellate Tribunal, JODHPUR BENCH, JODHPUR
Before: SHRI N.K.SAINI & SHRI N.K. CHOUDHRY
Per N.K. SAINI, V.P. :
These two appeals by the assessees are directed against the separate orders each dated 26.12.2018 of the CIT(A)-2, Udaipur for the A.Ys. 2007-08 & 2012-13. 2. Since the issues involved are common and the appeals were heard together, so these are being disposed off by this consolidated order for the sake of convenience and brevity.
During the course of hearing nobody was present on behalf of the assessee, however, written submissions have been furnished which we have considered while deciding these appeals.
At the first instance, we will deal with the appeal in ITA No. 94/Jodh/2019. 5. Following grounds have been raised in this appeal:-
The Ld. Commissioner of Income Tax (Appeals-2), Udaipur has grossly erred in facts and in law in completing the appellate proceedings exparte without providing the reasonable opportunity of being heard to the assessee to explain his case, therefore the action of the Ld. CIT (Appeals-2) is erroneous, unjustified & bad in law as per the provisions of act and the order so passed is bad in law is liable to be quashed.
The Ld. Commissioner of Income Tax (Appeals-2), Udaipur has grossly erred in facts and in law in confirming the assessment proceedings completed U/s 143 r.w.s. 153A of the IT Act, 1961, whereas while completing the assessment, the AO has not provided the reasonable opportunity of being heard to the assessee to explain his case, therefore the action of the Ld. CIT (Appeals-2) is erroneous, unjustified & bad in law as per the provisions of act and the order so passed is bad in law is liable to be quashed.
That the Ld. Commissioner of Income Tax (Appeals-2), Udaipur has grossly erred in law as well as on fact of the case in confirming the addition made by the Ld. AO by enhancing the returned income by Rs. 240000/- on account of undisclosed and unexplained investment u/s 69 without any basis and fact & findings, therefore the action of the Ld. Commissioner of Income Tax (Appeals-2), Udaipur is erroneous & bad in law as per the provisions of act and is liable to be deleted.
That under the fact & circumstances of the case the Ld. Commissioner of Income Tax (Appeals-2) has erred in computing/charging interest U/s 234B of the IT Act, 1961. 5. That the appellant reserves his rights to add, to alter or to modify any grounds of the appeal on or before hearing of the same.
The main grievance of the assessee vide ground No.1 relates to the ex- parte order passed by the Ld. CIT(A) without affording reasonable opportunity of being heard.
The facts of the case in brief are that a search and seizure proceedings were carried out at the residential and business premises of the assessee and Shri Naha Lal Ahari, their family and business concerns / companies on 5.12.2012. Thereafter, the Assessing Officer issued notices u/s 153A of the Income Tax Act, 1961 [in short' the Act'] on 24.9.2013. In response, the assessee filed the return of income of Rs. 26,52,440/-. However, the assessment was framed by the Assessing Officer at an income of Rs. 28,92,440/- by making the various additions.
Being aggrieved, the assessee carried the matter to the Ld. CIT(A) who sustained the addition made by the Assessing Officer by passing an ex- parte order. The Ld. CIT(A) mentioned in para-2 of the impugned order that the notices for hearing were issued on various dates but none attended on behalf of the assessee.
Now the assessee is in appeal.
The Ld. Counsel for the assessee in his written submissions submitted as under:- “With reference to the above subject, in the assessee's case, due to non-receipt of notices on timely manner and non appearance before the Ld. CIT (Appeals-2), Udaipur due to some unavoidable circumstances, the appellate order has been passed exparte in the assessee's case. In this connection, your honour is kindly requested to set aside the matter before the Ld. CIT (Appeals-2), Udaipur for her fresh judgment. We assure you that, the assessee will appear & submit the necessary reply alongwith supporting documents before the Ld. CIT (Appeals-2), Udaipur or otherwise, kindly adjourn the hearing and give any other date.”
In his rival submissions, the Ld. Sr. DR supported the orders of the authorities below.
We have considered the submissions of both the parties and perused the material on record. In the present case from the noting of the Ld. CIT(A) in para 2 of the impugned order it is noticed that he had mentioned that on various dates the notices were issued, however, nothing is brought on record
to substantiate that as to whether the notices issued were served upon the assessee or not. It is well settled that nobody should be condemned
unheard as per the maxim “audi alteram partem”. We, therefore, by keeping in view the principles of natural justice, deem it appropriate to set aside this cases 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 ITA No. 95/Jodh/2019, the facts are similar as were involved in ITA No. 94/Jodh/2019 (supra), therefore, our findings given in former part of this order shall apply mutatis mutandis.
In the result, both the appeals of the assessee are allowed for statistical purposes. (Order Pronounced in the Court on 02.05.2019) (N.K. CHOUDHRY) Vice President Dated : 02. 05.2019 “आर.के.” आदेशक"""त"ल"पअ"े"षत/ Copy of the order forwarded to : 1. अपीलाथ"/ The Appellant
""यथ"/ The Respondent 3. आयकरआयु"त/ CIT 4. आयकरआयु"त (अपील)/ The CIT(A)
"वभागीय""त"न"ध, आयकरअपील यआ"धकरण, च#डीगढ़/ DR, ITAT, Jodhpur 6. गाड&फाईल/ Guard File
आदेशानुसार/ By order सहायकपंजीकार/