SHRI SANJAY NANASAHEB BHARSAKALE vs. I.T.O. WARD -1, AMRAVATI

PER AMARJIT SINGH, J.M.

The assessee has filed the present appeal against the impugned

order dated 5th January 2017, passed by the learned Commissioner

(Appeals)–I, Nagpur, relevant to the assessment year 2011–12.

“1. The order passed by learned Commissioner of Income Tax (Appeals)-!, Nagpur U/s. 144 is illegal, invalid and bad in law.

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communicated notice to counsel at Nagpur hence counsel at Nagpur unable to attend hearing, therefore order passed is unjustified, unwarranted and excessive,

The return of income was processed under section 143(1) of the Income Tax Act, 1961 (for short “the Act”) on 17th February 2012.

Enquiry under section 131 of the Act was conducted at the premises of the assessee on 19th April 2013, by the DDIT (Inv.), Unit–III, Nagpur.

It was observed that the assessee introduced cash to the tune of `

2.05 crore in his books of account on 3rd January 2011 and on the

same day, he deposited the cash to the tune of ` 1.06 crore in the

bank account with Central Bank of India, Dariyapur. The assessee was

in the business of lodging and restaurant, video game parlour and

trading in sand. The Assessing Officer issued notices to the 20 persons

from whom he received the amount to the tune of ` 2.05 crore. 17

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people attended the proceedings and the Assessing Officer after

recording their statement was of the view that the said amount to the

tune of ` 2.05 crore was unexplained therefore, the same was added

to the income of the assessee in view of the provisions of section 68 of

the Act. The total income of the assessee was assessed to the tune of

` 2,09,60,290. Thereafter, the assessee filed an appeal before the

learned Commissioner (Appeals), who partly allowed the appeal of the

assessee. However, the assessee failed to join the proceedings before

the learned Commissioner (Appeals). Aggrieved by this, the assessee

filed the present appeal before us.

available on record. At the very outset, the learned Counsel for

assessee has argued that the learned Commissioner (Appeals) has

decided the appeal of the assessee ex–parte and without giving

opportunity of being heard the assessee, therefore, the in the said

circumstances, the order of the learned Commissioner (Appeals) in question dated 5th January 2017, is wrong against law and fact and is

liable to be set aside. However, on the other hand the learned

Departmental Representative has refuted the said contention of the learned Counsel. On appraisal of the impugned order dated 5th January

2017, passed by the learned Commissioner (Appeals) in question, we

notice that the said appeal has been decided by the learned

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Commissioner (Appeals) ex–parte. The appeal was not represented by

the assessee as well as the learned Departmental Representative also.

On appraisal of the said order, we also find that the matter of

controversy is in connection with the addition of ` 2.05 crore has not

been adjudicated on the basis of even material available on record.

The assessee only wants to represent the matter in support of his

claim and to adduce some evidence also. Since the matter of

controversy is not adjudicated by the learned Commissioner (Appeals)

on merits and the assessee failed to appear before the learned

Commissioner (Appeals) due to any reason, we are of the view that

the order passed by the learned Commissioner (Appeals) is not

justifiable in the interest of justice. In view of the said circumstances,

we are not inclined to decide the case on merits and set aside the

findings of the learned Commissioner (Appeals) with the direction to

the learned Commissioner (Appeals) to decide the issues on merits by

giving adequate opportunity to the assessee in accordance with law.

purposes.

Order pronounced in the open Court on 30.06.2017

Sd/- Sd/- P.K. BANSAL AMARJIT SINGH VICE PRESIDENT JUDICIAL MEMBER

NAGPUR, DATED: 30.06.2017

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Copy of the order forwarded to:

(1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Nagpur City concerned; (5) The DR, ITAT, Nagpur; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary

(Dy./Asstt. Registrar) ITAT, Nagpur