SHRIKANT AGARWAL ,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX - CENTRAL CIRCLE 6(3), MUMBAI

PER PAWAN SINGH, JUDICIAL MEMBER; 1. These four appeals by assessee under section 253 of Income-tax Act (‘Act’) are directed against the order of ld. Commissioner of Income-tax (Appeals)-54, hereinafter referred as ld. CIT (A), Mumbai, all dated 27.12.2017 for Assessment Year 2011-12 to 2014-15. The assessee has raised the common grounds in all appeals for all the Assessment Years except variation of figures of amount. For appreciation of facts we are referring the facts and grounds of appeal in AY 2010-11. The assessee has raised the following grounds of appeal: to 969 Mum 2018-Shri Shrikant Agarwal

The following grounds of Appeal are without prejudice to each other:-

2. On the facts and circumstances of the case and in Law, the Learned CIT(A) has erred in confirming the action of the Learned Assessing Officer in making an addition of Rs. 3,00,00,000/- u/s 69C of the Income Tax Act, 1961 as alleged Unaccounted investment, without considering the facts and circumstances of the case.

2. Brief facts of the case are that the assessee as search action 132 was conducted on 04/04/2014 on M/s Avighna Group covering its head office, site officer and residence and office premises of its key persons.

The person and the individual who had paid ‘on money’ for booking flat to M/s Nish Developer Pvt Ltd were also search. During the search one of the key employees Praveen Mishra of M/s Nish Developer Pvt Ltd was covered. From the residence of Praveen Mishra, a pen drive and some rough sheet were found and seized. The assessee is one of the purchasers of a flat in “One Avighna Park”. The data from the pen drive contained the details of cash paid by the assessee. Notice under section 153A was issued to the assessee on 04.02.2011. In response to the notice under section 153A, the assessee filed his return of income on 153A declaring total income of Rs.74,95,620/-. The assessee filed original return of income on 27.09.2011 declaring income of Rs.74,95,620/-. The assessment was completed under section 143(3) read with section 153A on 29/12/2016. The assessing officer while passing the assessment order 2 to 969 Mum 2018-Shri Shrikant Agarwal made addition of Rs. 3.00 Crore under section 69C on account of cash paid to M/s Nish Developer Pvt Ltd. On appeal before ld CIT(A) the action of the assessing officer was upheld. The ld CIT(A) upheld that action of the assessing officer in ex-party order dated 27.01.2017. The ld CIT(A) dismissed the appeal of the assessee for other years i.e for AY 2012-13 to 2014-15 with similar order on 27.01.2017. Thus, further aggrieved by the order of the ld CIT(A) the assessee has filed present appeal before this Tribunal 3. We have heard the submission of ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. Ground No.1 relates to passing the ex-party order without giving the opportunity to the assessee.

The ld AR for the assessee submits that before ld CIT(A) the hearing of the appeal was fixed on 27.11.2017, the AR for the assessee Mr. Pradeep Choudhary CA sent adjournment application as he was not well and the appeal was accordingly re-fixed for hearing on 18.12.2017. On 18.12.2017 the AR for the assessee could not attend the hearing as he was not well since 27.11.2017. The ld. AR for the assessee further submits that Mr. Pradeep Kumar Choudhary was undergoing various medical tests on 18.12.2017 and was diagnosed with Cancer. Mr. Pradeep Kumar Choudhary CA was hospitalized on 18.12.2017 and was discharged from hospital only on 24/12/2017 and was advised complete 3 to 969 Mum 2018-Shri Shrikant Agarwal rest. The ld. AR for the assessee filed copy of Medical prescription and report of Medical test dated 18.12.2017 and the discharge slip of P.D Hinduja National & Medical Research Centre dated 24.12.2017 of Pradeep Kumar Choudhary. The ld. AR further submits that there was sufficient cause for not attending the hearing on 18.12.2017 as the assessee has duly appointed his representative who could not date of hearing the date due to bonafide reasons. The assessee has good case on merit and is likely to succeed in case his appeal is heard and decides on merit.

Considering the facts that the AR for the assessee could not appeared due to his illness as he was under medical treatment and was discharged only on 24.12.2017. The appeal of the assessee was decided by ld CIT(A) in ex-party order dated 27.12.2017. In our view, considering the peculiarity of facts and circumstance of the case, when the assessee been able to show the sufficient cause for non-appearance before ld CIT(A), and the appeal of the assessee was decided without affording sufficient 5 to 969 Mum 2018-Shri Shrikant Agarwal opportunity to the assessee. Thus, the assessee is entitled for hearing of the appeal on merit. Therefore, we allow the ground No. 1 of the appeal and restore the appeal to the file of ld CIT(A) to decided the appeal in accordance with law. Needless to order that the ld CIT(A) shall grant sufficient opportunity to the assessee. The assessee is also directed to provide all relevant documentary evidences and information to the ld CIT(A). In the result ground No.1 of the appeal is allowed.

have become academic.

7. In the result the appeal of the assessee is allowed for statistical purpose. to 969/Mum/2018 for AY 2012-13 to 2014-15

8. The assessee has raised identical grounds of appeal as raised in appeal for AY 2011-12, except various of figure of additions, therefore, considering our decision for AY 2011-12 on identical grounds, these appeals are also restored to the file of ld CIT(A) with similar direction.

9. In the result, all the appeals of the assessee are allowed for statistical purpose.

Order pronounced in the open court on 20/03/2019.

Sd/- Sd/- N.K. PRADHAN, PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Date: 20.03.2019 SK 6 to 969 Mum 2018-Shri Shrikant Agarwal Copy of the Order forwarded to : 1. Assessee 2. Respondent 3. The concerned CIT(A) 4. The concerned CIT 5. DR “G” Bench, ITAT, Mumbai 6. Guard File