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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-3’ NEW DELHI
Before: SMT DIVA SINGH
The present appeal has been filed by the assessee assailing the correctness of the order dated 25.09.2014 of CIT(A), Ghaziabad pertaining to 2009-10 assessment year on various grounds including Ground No.2 which reads as under:- 2. “That, both the learned lower authorities failed to provide proper opportunity of being heard in as much as Ld.AO failed to provide any opportunity after compliances made by assessee and Ld.CIT(A) failed to consider the addl. Evidences by the assessee even without calling any report from AO etc., hence provision of natural justice has been defeated.”.
The Ld.AR inviting attention to the assessment order reproduced in the impugned order submitted that the AO in para 2 has made a reference to the fact that the assessee was represented on 23.12.2011 by Sh. Pankaj Kumar, CA.
However, he observes that the assessee failed to comply with that the information sought. Referring to the Paper Book page 4 & 5 filed before the CIT(A) it was submitted that infact the assessee has provided the complete information to the AO on the said date. The copy of this letter filed before the CIT(A) was treated by him as a fresh evidence. Aggrieved by this the assessee
I.T.A .No.-6595/Del/2014 has also filed an affidavit of the Ld. AR, Sh. Pankaj Kumar affirming these facts.
The contents of the affidavit are reproduced hereunder:-
“I, Pankaj Kumar, S/o Sh. Bisheshwar Dayal partner of M/s KPMC & Association, C-1, RDC, Raj Nagar, Ghaziabad do hereby solemnly declare and state on oath as under:-
1. 1. That my aforesaid identification is correct and being auth.rep. of the above assessee who appeared before Ld.AO in this matter hence is conversant with the facts of the above said case and is competent to swear this affidavit.
2. That, I filed various documents before Ld.AO like bank accounts, copy of cash a/c of assessee from firm etc. in support of claim of assessee and complies with queries.
3. That, assertion of Ld.AO in his order dt. 29.12.2011 that assessee has not complied with any query relating to source of deposit is wrong.
4. That due to above reasons assessee became dissatisfied with me and engaged other counsel for 1st appeal despite my assurance for co- operation.” (emphasis provided) 3. Relying upon the same it was submitted that the dismissal of the assessee’s appeal by the CIT(A) without even giving any reason whatsoever why addition cannot be restricted to the peak deposit of the both the savings accounts, it was submitted is arbitrary. The impugned order it was submitted may be set aside. The Ld. Sr. DR placed reliance upon the impugned order however submitted that the assessment order passed u/s 144 and in the circumstances the matter may be restored to the AO. The Ld.AR gave his oral undertaking stating that the assessee shall participate in the proceedings before the AO in case the issues are restored back.
I have heard the rival submissions and perused the material available on record. I find that in the facts of the present case in the interests of justice the impugned order deserves to be set aside. The request for addition restricted to the peak credit found deposited in the bank accounts if on facts had to be rejected then the facts supporting the conclusion should have been brought on record , the prayer cannot be rejected on the ground that it was not made before the AO. Even otherwise, it is submitted that no fresh evidence was filed before Page 2 of 3
I.T.A .No.-6595/Del/2014 the AO which claim is supported by an affidavit of the counsel representing the assessee before the AO. In the face of the oral undertaking of the Ld.AR that the assessee shall participate in the set aside proceedings and the prayer of the Ld.Sr.DR that the matter be remitted the prayer of the parties is accepted. The impugned order is set aside and the issues are restored to the AO denovo with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The opportunity so provided it is hoped is used by the assessee in good faith as failing which the AO would be at liberty to pass a speaking order in accordance with law on the basis of material available on record.