RIZWAN SIDDIQUE,MUMBAI vs. ITO WD 17(3)(4), MUMBAI

The present appeal has been preferred by the assessee against the order dated 20.02.2012 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2006-07.

The assessee has taken the following grounds of appeal: “(1) The learned Assessing Officer has not given reasonable opportunity of being heard to the appellant. However, the appellant has requested adjournment for the genuine reasons of ill health which was also substantiated by evidences. Instead, CIT has passed the order on 20.02.2012 which is 40 days earlier to the date allotted to us i.e. 31.03.2012. Hence, the appellant requests your honour to kindly allow the appellant to explain his obligations towards the case concerned. (2) The learned assessing officer has erred in adding back Rs.11,28,850/- as unexplained cash credits whereas the appellant has already declared that these monies are the cash received from the clients who do not have any bank accounts. In fact, the intention of the appellant was to help those people for taking out the pay orders. Thus, the said amount does not reveal any income earned. (3) The appellant prays that the penalty proceedings u/s 271(1)(c) may be dropped and due justice may be given to the appellant.

We have heard the Ld. D.R. and have also gone through the records. As is revealed from the ground No.1 taken by the assessee, the assessee’s grievance is that no proper opportunity of hearing has been granted to him. It has been pleaded that the assessee was asked to appear on 31.03.12 for hearing of the matter whereas the Ld. CIT(A) passed the order on 20.02.12 itself, which is 40 days prior to the date of hearing allotted to the assessee. We have gone through the impugned order also. The date of order as mentioned in the beginning of the impugned order is 20.02.12. However, a perusal of para 3.3 of the order reveals that the Ld. CIT(A) had himself written in the order that he had served the notice upon the assessee to appear on 21.02.12 i.e. one day after the date of order. A mere perusal of the order reveals that the order has been passed prior to the date of hearing given to the assessee. In our view, no proper opportunity has been given to the assessee by the Ld. CIT(A) to present his case. The order passed by the Ld. CIT(A) is not sustainable in the eyes of law, the same is therefore set aside and the matter is restored to the file of the Ld. CIT(A) with a direction to decide the same afresh after giving a proper and reasonable opportunity of hearing to the assessee and after duly considering the evidences/documents relied upon by the assessee.