ARUN MATHUR,BHARATPUR vs. ITO WARD-1, BHARATPUR

vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M.

This appeal is filed by the assessee against the order of the ld. CIT(A) dated 08.06.2023, National Faceless Appeal Centre, Delhi [herein after referred to as "NFAC"] for the assessment year 2011-12.

Arun Mathur vs. ITO "1. That the order passed by the Id. CIT(Appeals) dated 08.06.2023 is bad-in- law since the Id. CIT (Appeals) has accepted the Returned Income of the assessee but at the same time decided the appeal against the assessee.

2. That the Id. CIT (Appeals) has erred in not issuing the demand notice u/s 156 of the Income-tax Act, 1961. Hence the order passed by him is null and void in the eyes of law.

3. That the Id. CIT(Appeals) has erred by not providing the Show Cause Notice before passing the assessment order, thus, the impugned order was passed without following the principles of natural justice and in gross violation of the scheme of faceless assessment. 4. That having regard to the facts and circumstances of the case, the Id. AO has erred in law and on facts that the reasons recorded for reopening of the case u/s 148 of the Act is that cash deposits amounting to Rs. 13,62,900 have been made in the bank account does not indicate that these deposits constitute an income which has escaped assessment. Therefore, the reason of initiating the case proceedings u/s 147 is void-ab-initio and be kindly deleted/excluded from assessment.

5. That, on the facts and circumstances of the case, the Id. AO has erred to make proper investigation of the documents submitted before him before making addition of Rs. 10,73,000/-.

6. That The Id. CIT(A) has erred in passing an order u/s 250 of the Income-tax Act, 1961 without giving reasonable opportunity of being heard to the appellant hence the order passed by him being against the principles of natural justice is bad in law and requires to be cancelled.

Accordingly, notice U/s 148 of the I.T. Act, 1961 was issued on 27.03.2018 after

Arun Mathur vs. ITO getting prior approval of the Pr. CIT, Alwar on the ground that the assessee had deposited Rs. 11,02,900/- in cash on 15.04.2010 with IDBI, Bank Ltd., Bharatpur and Rs.2,60,000/- deposited with ICICI bank Ltd. on 27.07.2010 during the F.Y.

2010-11. In compliance to notice u/s 148 of the I.T Act, 1961, the assessee filed return of income for A.Y. 2011-12 on 18.11.2018 after a duration of approx 9 months from the issue of notice under section 148, showing total income of Rs.1,51,810/- (Income from business and Profession at Rs.1,02,100/- and Income from other sources at Rs.49,759/-). The case has been selected for scrutiny and addition of Rs. 10,73,000/- has been made by the AO without observing facts and withdrawal from the banks it is bad in law. Conclusively, the AO made addition in the hands of the assessee by holding as under:-

“4. Thereafter, the cash flow statement for the financial year 2010-11 was prepared on the basis of bank account statements of ICICI & IDBI bank placed on record and opening balance of cash in hand is taken as zero while preparing the cash flow statement. It is evident from the cash flow statement that some of the cash deposit was from earlier cash withdrawals and it is appropriate to consider that the cash deposits during April & May 2010 was out of cash in hand maintained with the assessee as on 01.04.2010 as some of the cash in hand would be there as on 01.04.2010. However, the source of Rs. 10,73,000/- (Rs. 8,23,000/- Rs. 2,50,000/-) as reflected in cash flow statement remained unexplained as no proper documentary evidences were furnished by the A/R of the assessee. Hence, an addition of Rs. 10,73,000/- on account of undisclosed income from undisclosed sources, is made to the total income of the assessee under the head income from other sources.”

Arun Mathur vs. ITO 4. Aggrieved, from the said order of assessment the assessee has filed an appeal before the ld. CIT(A) who after hearing the contention of the assessee dismissed the appeal of the assessee by giving following findings on the issue:-

and statement of facts filed by the appellant. Nothing is written on the cash deposits. No books of accounts or bank statements or source of deposits have been annexed. Hence, the addition of the Assessing Officer is confirmed and the appeal of the appellant is dismissed.

6. In the result, the appeal of the appellant is dismissed.”

5. The ld. AR for the assessee submitted it is ex-party order before ld. CIT(A) and further submitted that the assessee could not furnish his complete details before the ld. AO and requested to set aside the matter before the ld. AO.

Arun Mathur vs. ITO 7. We have heard the rival contentions and perused the material placed on record. The bench noted that the assessee has been selected for scrutiny and addition of Rs. 1073000/- has been made by the ld. AO without observing facts and withdrawal from banks. Though the ld. DR objected to the prayer of the assessee but looking to the fact of the case that assessee being small person working privately as self employed. Nothing is written on the cash deposits. No books of accounts or bank statements or source of deposits have been annexed. We find force in the arguments of the ld. AR of the assessee, therefore, bench feels that the assessee should be heard on merit rather than to dismiss the appeal on the technical reasons. Considering that prayer of the assessee, we find force in the arguments advanced by the ld. AR of the assessee and considering the totality of the facts we consider deem fit to remand back the matter before the ld. AO to decide afresh on merit. Therefore, considering that contentions and ongoing through the orders of the lower authorities we are of the considered view that the assessing officer should hear the assessee’s submission on merits after affording proper opportunity of being heard and pass speaking order in the matter in accordance with the law. At the same time assessee is directed to represent and present all the facts before the assessing officer and should not ask for the adjournment on frivols grounds.

Arun Mathur vs. ITO At this stage we remand back the issues raised without commenting upon the merits of the case and the ld. AO is directed to complete the assessment as per law.

In the result, appeal of the assessee is allowed for statistical purpose.

In the result, appeal of the assessee is allowed for statistical purposes.