SATISH KUMAR,KURUKSHETRA vs. ITO, W-3, KURUKSHETRA

आदेश/ORDER

PER DIVA SINGH The present appeal has been filed by the assessee assailing the correctness of the order dated 24.11.2017 of CIT(A) Karnal pertaining to 2009-10 assessment year on various grounds challenging the order on merits. 2. However, at the time of hearing, an adjournment application was moved on behalf of the counsel seeking time. Since the issues raised in ground No. 2 and 4 of the present appeal could be decided on the basis of material available on record, it was deemed appropriate to proceed with the present appeal ex-parte qua the assessee appellant on merits. Accordingly, a pass over was given to enable the Sr.DR to prepare. 3. In the pass over, the assessee was represented by Mr. D.K.Goyal. 4. The record shows that the assessment order was passed u/s 144/147 of the Act wherein the assessee as per record based on some advise of some counsel requested for the reasons recorded and insisted upon adherence to the procedures set out by the Statute for bringing to tax the deposit of Rs. 1,38,50,000/- noticed by the department in his

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bank account. Since, apart from this, objection recorded in the assessment order, the assessee ultimately remained unrepresented, it lead to the AO to making the addition in his hands. 5. The assessee carried the issue in appeal before the CIT(A) wherein relying on some evidences to explain that the deposits were from the agricultural land which was being sold. The CIT(A) rejected the fresh evidence holding that since sufficient opportunity had been provided by the AO, the evidence could not be admitted. It was also noted by him that the assessee had also failed to move a proper application justifying the admission of the evidence. Commenting on the evidences, it was also noted by him that there is nothing in the evidences to show that the deposits were explainable as the books of account are not being maintained. Consequently, the assessee could not take shelter behind the argument. 6. The ld. Sr.DR relies on the order. 7. We have heard the rival submissions and perused the material on record. A perusal of the reply of the assessee extracted at page 5-6 of the impugned order shows that it has been pleaded that the assessee claims to be an agriculturist, not conversant with the income tax proceedings and being illiterate, it is stated he was unaware whether the lawyer appointed by him was attending to the proceedings and it was only when the assessment order was received, the assessee became aware. Accordingly, it has been pleaded that the assessee was prevented to “file the necessary evidence before the AO due to negligence/adverse thinking of the counsel.” Thus, we find that the assessee admittedly was prevented from producing necessary evidence at the time of hearing due to non co-operation etc. of the counsel. It is seen that the CIT(A) while passing the order has not addressed these submissions dated 25.10.2017 found extracted in the order at page 5-6 of the order. Accordingly, after considering the submissions of the parties wherein no justification could be given by the Sr.DR in support of the order passed, the impugned order is set aside and the issues are restored back to the file of the CIT(A) with the direction to admit the fresh evidences sought to be relied upon on behalf of the assessee and pass a speaking order in accordance with law. 7.1 The assessment order page 6 para 8 shows that on 16.10.2016, assessee was represented by Shri G Sagar, Advocate. When these facts

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are taken into consideration with the reply dated 25.10.2017 extracted in the impugned order, it is seen that the following submissions at page 5 of the order support the claim : “That he is an agriculturist and is not conversant with the income tax Act/proceedings. So when he received notice he engaged lawyer at Kurukshetra and given him all the documents asked by the lawyer and he had also authorized him to appear before AO of Kurukshetra. The assessee being illiterate could not guess if the lawyer is attending the assessment proceedings or submitting the documents he had obtained from the assessee.” 8. We make it clear that the sufficiency of the evidences is not being addressed by us and deem it appropriate to note that in case the fresh evidence is found to be insufficient and incomplete, we see no impediment why the said fact cannot be communicated to the assessee and opportunity to make good its claims be provided at the Appellate stage following the procedure by the CIT(A). Accordingly, in terms of the said decision, impugned order is set aside. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 03.10. 2018.

Sd/- Sd/-

( डा. बी.आर.आर. कुमार) (�दवा �संह ) (Dr. B.R.R. KUMAR) (DIVA SINGH) लेखा सद�य/ Accountant Member �या�यक सद�य/Judicial Member “पूनम” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : अपीलाथ�/ The Appellant - 1. ��यथ�/ The Respondent - 2. आयकर आयु�त/ CIT 3. आयकर आयु�त (अपील)/ The CIT(A) 4. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 5. गाड� फाईल/ Guard File 6.

आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar