MR. MOHIT JAIN,NEW DELHI vs. ITO, NEW DELHI

ORDER This appeal of the assessee arises from the order of learned CIT(A)- 10, New Delhi, vide order dated 27.07.2016 for the assessment year 2009- 10. 2. The assessee has raised the sole grounds of appeal. “On the facts and in the circumstances of the case, the ld. CIT(A) has erred in confirming the addition of Rs.25,39,273/- made by the AO u/s.68 of the Income Tax Act, 1961 as per order under section 251 dated 27.07.2016.”

3. The brief facts of the case are that the assessee had filed return declaring income of Rs.1,54,642/- on 30.09.2009, which was subsequently selected for scrutiny under CASS. The AO issued statutory notice u/s. 143(2) and 142(1) of the Act, which remained partly complied. Various details were called for by the AO vide notice u/s. 142(1) dated 04.11.2011 to furnish copies of bank statement details regarding addition to capital explaining the source thereof, evidence relating to investment made in assets, details on the basis of balance sheet, trading and profit and loss account, etc. However, above notice returned un-served with the postal remarks 'refused'. Since, assessment was barred by limitation, AO completed the assessment on the basis of material available on record. A sum of Rs.7,39,273/- was debited by the assessee in the profit and loss account on account of fabrication charges. AO asked the assessee to submit documentary evidence in support of TDS being deducted and deposited into the government account vide notice dated 5th Dec. 2011, but this notice remained uncomplied with. Therefore, AO held that assessee failed to prove that compliance of TDS provisions has been made while making payment of fabrication charges and accordingly, disallowed the claim and above amount was added back to the income declared by the assessee for the year under consideration. Apart from the above, AO made addition of Rs.18 lakh to the taxable income of the assessee holding that assessee failed to explain the source of addition made to the capital account to the extent above. Thus by incorporating the above disallowances/additions, total taxable income of the assessee was computed at Rs.26,93,915/- as against the declared income of Rs.1,54,642/- 4. Learned CIT(A) confirmed the action of the AO. 5. I have heard the rival contentions and perused the facts of the case. It was argued by the learned counsel for the assessee, Mr. R.S. Singhvi, Adv. that notice dated 11.11.2011 and 5th December, 2011 were never received and served upon the assessee, and therefore, no sufficient opportunity has been given to the assessee and also the learned CIT(A) has passed the ex- parte order in the absence of any representation by the assessee. It was submitted by the learned counsel that the matter may be sent back to the AO and fresh opportunity is provided and assessee shall co-operate in the assessment proceedings, which has been conceded by the learned DR.

6. I have perused the facts of the case and in the interest of natural justice, the matter is set aside to the file of the AO who will decide the issue de novo after affording adequate opportunity of being heard to the assessee and the assessee shall co-operate in the assessment proceedings and the notice shall be served at the latest address as mentioned in form 36 and has been confirmed by the learned counsel for the assessee is as under: “Mr. Mohit Jain, D-813, New Friends Colony, New Delhi.”

7. In the result, the sole ground of the assessee is allowed for statistical purposes. Order pronounced in the open court on this day 20th April, 2017