MR. ASHOK MALHOTRA,NEW DELHI vs. DCIT, NEW DELHI

That the Ld. CIT (A) has erred on facts and law by upholding the completion Of assessment by the Ld. Assessing Officer on 24.08.2011 u/s 148 / 143(3), in which the notice u/s 148 was issued on 06.03.2012 which is barred by limitation as per the provisions of section 153(2) of the Income Tax Act which states:

That the Ld. CIT (A) has erred on facts and law by upholding the addition of Rs.3,96,000/- on account of Income from undisclosed sources declared in the shape of Dhaba income i$ not as per law and facts and circumstances of the case, as all details, supportings to the above were duly provided during the course of assessment proceedings and also all third party evidences relied by the Ld. Assessing Officer were never confronted to the assessee and hence is liable to be deleted.

That the Ld. CIT (A) has erred on facts and law by upholding the addition of Rs.6,21,500/-on account of Income from undisclosed sources disclosed in the form of Canteen Income which is not as per law and facts and circumstances of the case, as all details, supportings to the above were duly provided during the course of assessment proceedings and also all third party evidence relied by the Ld. Assessing Officer were never confronted to the assessee and hence is liable to be deleted.

That the Ld. CIT (A) has erred on facts and law by upholding the addition of Rs.3,83,48,5?8/- on account of Income from undisclosed sources deposited in various bank accounts which is not as per law and facts and circumstances of the case, as all details, supportings to the above were duly provided during the course of assessment proceedings and also all third party evidences relied by the Ld. Assessing Officer were never confronted to the assessee and hence the addition is liable to be deleted.

That the Ld. CIT (A) has erred on facts and law by upholding the addition of Rs. 1,29,560/- on account of Income from bank interest as disclosed by the assessee in return (Ashok Malhotra) of income which is not as per law and facts and circumstances of the case, as all details, supportings to the above were duly provided during the course of assessment proceedings and also all third party evidence relied by the Ld. Assessing Officer were never confronted to the assessee and hence the addition is liable to be deleted.

That the Ld. CIT (A) has erred on facts and law by upholding the completion of assessment on the basis of certain documents which were never found at the premises or in possession of the assessee and the same were also never confronted with the assessee and hence the additions based on such documents is not as per law and are liable to be deleted.

That the Ld. CIT(A) has erred on facts and law by upholding the completion of the assessment in which the Ld. Assessing Officer had only one intention – to increase the assessee income to maximum level. While completing the assessment, the additions are made of the same items, more than once, by flouting the accounting principles and settled provisions of the law. Further, in case of such type of assessment, the settled method of calculating the undisclosed income has not been taken care of and hence the additions made are liable to be deleted.

That the Ld. CIT (A) has erred on facts and law by upholding the disallowance of cash withdrawals as expenditure for generation of such cash is not as per law as all the relevant details, document, explanation, etc. are duly produced before the Assessing Officer.

That the Ld. CIT(A) has erred on facts and law by upholding the clubbing of income of interest earned by Assessee's relatives in the hand of Assessee is bad in law as all the relevant details, document, explanation, etc. are duly produced before the Assessing Officer.

Briefly stated that facts necessary for adjudication of the controversy at hand are : on the basis of search conducted by Central Bureau of Investigation (CBI) at the residence of assessee on 27.07.2007 along with searches conducted at the residences of DDA officials, wherein cash of Rs. 19 lacs , Gold jewellery weighing 7 KG (approximately), 17 Luxury cars with VIP number plates, 113 bank accounts maintained by assessee and family members operating from the same address, assessment was re- opened. On the basis of seized material by the CBI reassessment proceedings were initiated. Declining the contentions raised by the assessed, income at Rs. 8,61,13,305/- was assessee.

Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has dismissed the same on ground of non- appearance. Feeling aggrieved the assessee has come up before the Tribunal by way of filing the present appeal.

Bare perusal of impugned order passed by Ld. CIT(A) goes to prove that the appeal has been dismissed not on merit but for want of prosecution on the part of assessee. No doubt, Ld. CIT(A) has given six opportunity to the assessee out of which on two dates it is not shown if he was served or not and on next three dates adjournment applications were filed which were allowed and on the last date fixed by Ld. CIT i.e. 15.09.2015 impugned order was passed and application for adjournment was received on 15.10.2015.

Chronology of dates fixed by Ld. CIT(A) for hearing given in the tabulated form at page 4 of the impugned order apparently goes to prove that adequate opportunity has not been given to the assessee to argue the appeal because when the assessee has engaged his representative and has been moving adjournment applications, he cannot be faulted for non-prosecution. The Ld. Sr. DR

Keeping in view the facts and circumstances of the case, we are of the considered view that to decide the controversy at hand once for all adequate opportunity is required to be granted as the appeal has not been decided on Ld. CIT on merit but for non- prosecution . So we remand the case back to Ld. CIT(A) to decide on merit with the direction to the assessee to appear before the Ld. CIT(A) on 05.11.2018 and no separate notice is required to be issued to him. Consequently present appeal is allowed for statistical purposes.