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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’, NEW DELHI
Before: Sh. N. K. Saini, Hon’ble
ORDER This is an appeal by the assessee against the order dated 28.03.2018 of ld. CIT(A)-1, Noida.
Following grounds have been raised in this appeal: “1. The action of the learned Commissioner of Income Tax (Appeals)-1, Noida in passing the order under section 250 of the Income Tax Act, 1961, against the assessee is unjust, arbitrary and deserves to be quashed.
2. That his action of not providing proper opportunity of being heard and dismissing the appeal on the basis that no representation has been made by the assessee, despite the fact that an adjournment application dated 26th March, 2018 is available on record, is against the cardinal principal of natural justice and accordingly order deserves to be quashed.
2 Gopi Chand 3. That the action of Ld. Assessing Officer in holding that the assessee did not comply with the notices served on various dates were abrasive and is totally wrong and his action in passing the order under section 147/ 144 of the Act without servicing the notice under section 148 of the act on the assessee is illegal, arbitrary, void-ab-initio and deserves to be quashed.
4. That the action of Ld. Assessing Officer of passing the assessment order under section 147/144 of the act without assuming the jurisdiction in the absence of issuance of notice under section 143(2) of the act despite the fact that ITR was filed dated 23rd Feb, 2010 vide Ackn. No. 0331019626; is bad in law and void-ab-initio and therefore the assessment order deserves to be quashed.
That the action of Ld. Assessing Officer in treating the cash deposit in his saving bank account amounting Rs. 16,80,000/- (Rs. Sixteen Lakh Eighty Thousand Only) as unexplained money in terms of section 69A of the act is- unjust, illogical and arbitrary and deserves to be quashed.
That the assessee must be provided proper opportunity of being heard to provide additional evidences in support of his contention that the cash amounting Rs. 16,80,000/- (Rs. Sixteen Lakh Eighty Thousand Only) deposited in the bank account is from genuine source.
7. Appellant craves leave to add, alter, delete or modify and/or withdraw grounds of appeal
up to the date of hearing of the appeal.”
3. The main grievance of the assessee in this appeal relates to the ex-parte order passed by the ld. CIT(A).
Facts of the case in brief are that the AO on the basis of information received that the assessee had deposited cash of Rs.16,80,000/- in his saving bank account 3 Gopi Chand issued the notice u/s 148 r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as the Act). Since, there was no compliance, the AO passed the assessment order ex-parte u/s 144 of the Act and made the addition of Rs.16,80,000/-.
5. Being aggrieved the assessee carried the matter to the ld. CIT(A) who dismissed the appeal of the assessee for want of prosecution by observing as under: “2. The appeal of the appellant was fixed for hearing for 12.03.2018, and again for 26.03.2018. There has been no response. Neither the appellant has entered appearance nor any request for adjournment has been received. As the appellant is not keen on prosecuting its appeal the same is dismissed for want of prosecution. The impugned assessment order stands confirmed.”
6. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that no opportunity of being heard was provided by the ld. CIT(A) and that no notice for hearing was received by the assessee. Therefore, the ex-parte order passed by the ld. CIT(A) was not justified.
In his rival submission, the ld. Sr. DR supported the impugned order passed by the ld. CIT(A) and submitted that since the assessee did not comply the notice issued by the ld. CIT(A), there was no alternative except to decided the appeal of the assessee ex-parte.
I have considered the submissions of both the parties and perused the material available on the record. In the present case, it is noticed that the ld. CIT(A) decided the appeal of the assessee ex-parte but nothing is brought on record to substantiate that the notice of hearing was served upon the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi 4 Gopi Chand alteram partem”. I, therefore, by keeping in view the principles of natural justice, deem it appropriate to set aside this issue 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, the appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Court on 06/11/2018)