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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’, NEW DELHI
Before: Sh. N. K. Saini
ORDER This is an appeal by the assessee against the order dated 31.10.2017 of ld. CIT(A)-12, New Delhi. 2. Following grounds have been raised in this appeal: “1. That the impugned order is bad in law as well as on merits.
2. That the impugned order is illegal as without jurisdiction. 3. That the impugned Order is barred by limitation. 4. That no proper opportunity of hearing has been allowed.
5. That Ld. CIT (Appeal) has not allowed proper and reasonable opportunity of hearing.
Naveen Goel 6. That there is no proper service of notice by the Ld. CIT (Appeals).
7. That under the facts and circumstances, there is absolutely no justification in law as well as on merits in making addition of Rs. 20,50,000/- U/s. 68 read with Sec. 115BE.
That under the facts and circumstances of the case, there is no justification in law as well as on merits in treating addition to capital account as unexplained.
That under the facts and circumstances, there is absolutely no justification in law as well as on merits in not considering the reply of the assessee filed during the course of asstt. proceedings.
That under the facts and circumstances of the case, no interest U/s. 234B, 234C should have been charged. In any case, the calculations are excessive and erroneous.”
The main grievance of the assessee vide Ground Nos. 4, 5 and 6 relates to the opportunity of being heard not provided by the ld. CIT(A).
Facts of the case in brief are that the assessee filed the return of income on 27.09.2014 declaring an income of Rs.22,09,150/- which was processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act). Later on, the case was selected for scrutiny. The AO made the addition of Rs.20,50,000/- treating the same as unexplained cash credit in the capital account.
Being aggrieved the assessee carried the matter to the ld. CIT(A) who passed the ex-parte order and sustained the addition made by the AO.
Naveen Goel 6. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that no notice for hearing was served upon the assessee. Therefore, the ld. CIT(A) was not justified in dismissing the appeal ex-parte. It was further submitted that the assessee intimated the changed address to the ld. CIT(A) in Form No. 35 wherein in Column No. 17, the address was given C/o M/s Rajesh Kukreja & Associates, 211, LSC, Ashok Vihar, Phase-II, Delhi but no notice was sent on the said address.
In his rival submissions, the ld. Sr. DR supported the orders of the authorities below.
8. 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) in para 3 of the impugned order mentioned that notice dated 06.10.2017 was issued to the assessee for hearing on 30.10.2017 and the notice server reported that the assessee left after selling the house which clearly shows that the notice was not served upon the assessee. It is also not clear as to whether the ld. CIT(A) sent the notice at the address mentioned by the assessee in Column No. 17 of From No. 35. It is well settled that nobody should be condemned unheard as per the maxim “audi 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.
Naveen Goel 9. In the result, appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Open Court on 08/06/2018)