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Income Tax Appellate Tribunal, JAIPUR BENCHES (SMC
Before: SHRI BHAGCHANDvk;dj vihy la-@ITA No. 577/JP/2016
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh Hkkxpan] ys[kk lnL;] ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No. 577/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Vishal Thukral, Income Tax Officer, Vs. T-511, Ashiana Angan, Ward- Bhiwadi, Alwar Bye Pass Road, Bhiwadi, Alwar. Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACEPT 6193 P vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by: Shri P.C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Shri R.A. Verma (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 28/04/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 28/04/2017 vkns'k@ ORDER
PER: BHAGCHAND, A.M.
This is an appeal filed by the assessee emanates from the order dated
30/03/2016 passed by the ld CIT(A), Alwar for the A.Y. 2009-10, wherein the
assessee has raised following grounds of appeal: “1. The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the addition of Rs.7 lacs made by AO u/s 68 of the IT Act by treating the of unsecured loan outstanding as on 31.03.2009 as unexplained. He has further erred in not accepting the contention of the assessee that out of Rs.7 lacs, Rs.4 lacs represents loan received in earlier years for which no addition in the year under consideration can be made by incorrectly holding that
ITA 577/JP/2016_ 2 Vishal Thukral Vs ITO
assessee has failed to furnish the copy of account of the creditors to substantiate the fact of fresh loan raised during the year.
The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the disallowance of Rs.54,000/- made by the AO on account of interest paid to Sh. Sanjay Lamba by holding that in the ledger account of Sh. Sanjay Lamba interest is shown to have been paid but no such payment is debited in the P&L A/c.
The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the addition of Rs. 15,59,000/- made by AO by treating the cash deposit in bank account on various dates as unexplained by:- (i) not accepting the explanation of the assessee that source of cash deposit of Rs. 14,50,000/- in the bank account is against the property sold to Smt. Pushpa Malik.
(ii) not allowing the credit of withdrawal made in cash from the same bank account which is a source of deposit in the bank account. 4. The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the addition of Rs.2,46,784/- by treating the difference in receipts as per Form No.26AS and receipts shown in books of accounts as unexplained income of the assessee by not accepting the explanation of the assessee that receipts shown in the books of account is net of service tax whereas receipts shown in Form No. 26AS is gross receipts.
The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in disallowing the claim of deduction under Chapter VI-A of Rs.1,00,000/- by incorrectly holding that assessee has failed to file any evidence in the course of appellate proceedings.
The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming addition of Rs.2 lacs on account of unpaid duties and taxes u/s 43B of the IT Act, 1961 by ignoring that once assessee made the payment by cheque on 29.09.2009, the clearance of the cheque on 03.10.2009 would relate back to the date of furnishing of cheque and thus when the payment is made before due date of filing of return, no addition u/s 43B can be made.
ITA 577/JP/2016_ 3 Vishal Thukral Vs ITO
The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the addition of Rs. 19,545/- on account of excess discount received from M/s Tata Teleservices not shown in the books.
The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in not allowing the claim of deduction u/s 24(b) of Rs.78,311/-, being interest paid on the housing loan by incorrectly holding that assessee has failed to file any evidence.
The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the disallowance of Rs.77,696/- in respect of depreciation on car and laptop by incorrectly holding that assessee has failed to furnish the copy of purchase bills and evidence of having put to use these assets.”
In this case, the assessment order was passed ex parte due to non-
cooperation/non-compliance of the assessee. The Assessing Officer has
observed in his assessment order that several opportunities for compliance of
the notices and show cause were given to the assessee, but he failed.
Therefore, he assessed total income of the assessee at Rs. 39,18,320/-.
The ld. CIT(A) has also passed his order in absence of assessee and
without appreciated the proper facts of the case.
Before the Tribunal, the ld. AR of the assessee has submitted that the
Assessing Officer has decided the appeal ex parte without giving proper and
effective opportunity of hearing. The ld. CIT(A) has decided the appeal
without going into the merit of evidences, therefore, he prayed to restore the
matter back to the file of the Assessing Officer. The AR pleaded that the
ITA 577/JP/2016_ 4 Vishal Thukral Vs ITO
Assessing Officer may be directed to give proper and effective opportunity of
being heard.
On the contrary, the ld. Sr. DR has vehemently supported the orders
of the authorities below and further submitted that the Assessing Officer had
given several opportunities to the assessee but the assessee does not want
to pursue his matter. The ld. CIT(A) has rightly decided the appeal, therefore
he prayed to sustain the order of the ld. CIT(A).
I have heard both the parties and have also gone through the
records. From perusal of the records, it transpires that the Assessing Officer
gave opportunity to the assessee. However, there is no evidence on record
to justify or confirm the fact that assessee was provided adequate and
effective hearing with regard to the direction sought and provided. The facts
of the case shows that the assessee has not been provided an effective
opportunity of being heard with regard to directions issued by the Assessing
Officer, which is a mandatory requirement of law. Therefore, by keeping in
view of all these facts, I restore all the issues to the file of the Assessing
Officer to decide de novo after giving adequate and sufficient opportunity of
being heard to the assessee. The assessee is also directed to cooperate with
the Assessing Officer in deciding the case in accordance with law. If the
assessee fails in cooperating the Assessing Officer then no further
ITA 577/JP/2016_ 5 Vishal Thukral Vs ITO opportunity would be given to him. Accordingly, this appeal is restore back to
the file of the Assessing Officer.
In the result, the appeal of the assessee is allowed for statistical
purposes only.
Order pronounced in the open court on 28/04/2017.
Sd/- ¼Hkkxpan½ (BHAGCHAND) ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 28th April, 2017
*Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Vishal Thukral, Alwar. 1. izR;FkhZ@ The Respondent- The ITO, Ward- Bhiwadi, Alwar. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 577/JP/2016) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत