What did the Tribunal hold?

The Tribunal held that the CIT(A) confirmed the additions without considering the merits of the case. Therefore, the matter was remanded to the CIT(A) for fresh adjudication after considering all materials and providing a reasonable opportunity of hearing.

The assessee appealed against the CIT(A)'s order confirming additions on account of cash and other deposits from undisclosed sources. The CIT(A) confirmed the additions as the assessee's representative did not file a rejoinder to the remand report.

What were the issues?

Whether the CIT(A) erred in confirming additions without considering the merits and providing a reasonable opportunity of hearing to the assessee.

Dhiraj Raj Deb, Bhubaneswar vs ITO | ITAT Cuttack 2017

Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK

Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE

For Respondent: Shri D.K.Pradhan, DR

Hearing: 22/05Pronounced: 26/05

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER

ITA No.425/CTK/2013 Assessment Year :2008-2009

Sri Dhiraj Raj Dev, Flat Vs. ITO, Ward 2(3), No.101, Harapriya Bhubaneswar. Apartment, Vivekananda Marg, Old Town, Bhubaneswar. PAN/GIR No. Aehpd 8727 n (Appellant) .. ( Respondent)

Assessee by : None Revenue by : Shri D.K.Pradhan, DR

Date of Hearing : 22/05/ 2017 Date of Pronouncement : 26/05/ 2017

O R D E R Per N.S.Saini, AM This is an appeal filed by the assessee against the order of CIT(A)-II,

Bhubaneswar, dated 26.3.2013, for the assessment year 2008-09.

The assessee has raised the following grounds of appeal:

”1.That the assessment order dated 27,12.2010 passed by the Ld Assessing Officer & Order dated 26.03.2013 passed by CIT(Appeals )- II, Bhubaneswar are void abinitio, against the natural justice, unjustified .erroneous .arbitrary , contrary to facts ,bad in law, without jurisdiction and /or in excess of jurisdiction and legally untenable.

2 ITA No. 425/CT K/ 2013 Asse ssment Year :20 08- 09

That the Ld CIT Appeals -II, Bhubaneswar has erred on fact as well as on law in dismissing the appeal in lime line, even without considering the merits of the case otherwise. '

For that the adding of Rs.31,59,000/- on account of Cash deposit under undisclosed source is arbitrary illegal and not sustainable on fact and law and as such are liable to deleted.

For that addition of Rs.91,59,150/- on account of other than Cash deposit under undisclosed source on certain conjecture surmise without conducting any enquiry under the head Unexplained source are not sustainable on fact and liable to be deleted.

That the assessee was deprived from the benefit of reasonable opportunity of being heard and deprived from the benefit of natural justice.

That the order of assessment as framed is otherwise bad in law and liable to be quashed.

That the appellant craves leave to add to supplement modify the grounds herein above before or at the hearing of the appeal.

That for these grounds and other grounds if any that will be adduced at the time of hearing, it is prayed that the order of assessment be quashed & the demand be annulled in the interest of justice and equity.

In Ground Nos.3,4 & 5 of the appeal, the grievance of the assessee

is that the CIT(A) erred in confirming the addition of Rs.31,59,000/- on

account of cash deposit from undisclosed sources and Rs.91,59,150/- on

account of other than cash deposits without allowing reasonable

opportunity of hearing to the assessee and deprived him from the benefit

of natural justice without considering the merit of the case and otherwise.

Notice of hearing was sent to the assessee by Speed Post on 9.5.2017

fixing the date of hearing of appeal on 22.5.2017. None appeared on

behalf of the assessee when the case was called for hearing and neither

3 ITA No. 425/CT K/ 2013 Asse ssment Year :20 08- 09

any adjournment application was filed. The appeal was fixed for hearing

on 25.5.2015 when the hearing was adjourned at the request of ld A.R. of

the assessee to 1.8.2016. The appeal was again adjourned to 31.8.2016 at

the request of ld A.R. of the assessee to 22.5.2017. Considering the above

facts and circumstances of the case, the Bench proceed to hearing and

dispose of the appeal considering the submission of ld D.R. and materials

available on record.

The facts of the case are that the CIT(A) fixed the hearing on

22.7.2011 and the assessee had filed additional evidences before the

CIT(A) and the evidences were forwarded to the Assessing Officer by the

CIT(A) on 18.10.2011 directing him to send the remand report on or before

27.10.2011. Since the report was not received in time, a reminder was

sent on 27.10.2011. The CIT(A) did not receive the remand report even in

the first week of January, 2012 from the Assessing Officer and accordingly,

on 9.1.2012, the CIT(A) directed the AR of the assessee to substantiate the

ground Nos.3 & 4 by submitting the names, addresses and other evidences

in support of the grounds. In other words, the CIT(A) required the ld A.R.

of the assessee to substantiate the sources of cash deposit in the bank

account other than cash amounting to Rs.91,59,150/-. Ld A.R. of the

assessee was required to furnish the compliance on 3.2.2012. The CIT(A)

adjourned the hearing four times at the request of ld A.R. of the assessee

between February to September, 2012. Ld A.R. appeared on 25.10.2012

4 ITA No. 425/CT K/ 2013 Asse ssment Year :20 08- 09

and the CIT(A) required him to submit the compliance as required on

9.1.2012. The CIT(A) also sent a reminder to the Assessing Officer for

submitting the overdue remand report. The Assessing officer sent the

remand report dated 4.1.2012, copy of which was handed over to ld A.R.

of the assessee on 21.11.2012. The CIT(A) has stated that since the

Assessing Officer had been asked to send a remand report through proper

channel, a further report dated 10.12.2012 alongwith a copy of the remand

report dated 4.1.2012 was received by him on 11.12.2012, the copy of the

fresh remand report was handed over to ld A.R. of the assessee on

15.1.2013. The case was adjourned to 11.2.2013 and 8.3.2013 and no

rejoinder was filed by the assessee. The matter was finally discussed with

the ld A.R. of the assessee and the CIT(A) found that ld A.R. does not have

any rejoinder to file. Accordingly, the CIT(A) decided the appeal on the

ground that the assessee has nothing further to add in spite of the

Assessing officer’s remand report dated 4.1.2012 and 10.12.2012 and,

therefore, the addition of Rs.31,59,000/- on account of cash deposit and

Rs.91,59,150/- on account of deposits other than cash was confirmed by

him.

On the above facts and circumstances of the case, we find that the

CIT(A) has confirmed the addition of Rs.31,59,000/- and Rs.91,59,150/-

made by the Assessing Officer on the ground that ld A.R. has not filed a

rejoinder to the remand report of the Assessing Officer. The CIT(A) has

5 ITA No. 425/CT K/ 2013 Asse ssment Year :20 08- 09

not considered the merits of the addition on the basis of materials available

on record before adjudicating the same. We are therefore of the considered

opinion that in order to render substantial justice, the issue should be

remanded to the file of the CIT(A) for adjudicating the issues afresh after

considering the materials available on record and the submissions of the

assessee after giving the reasons for not accepting the submissions of the

assessee. Needless to mention that the assessee shall be allowed a

reasonable opportunity of hearing before adjudicating the issue afresh.

In the result, the appeal filed by the assessee is allowed for statistical

purposes.

Order pronounced in the open court on 26/05/2017 in the presence of parties.

Sd/- Sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 26/05/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Sri Dhiraj Raj Dev, Flat No.101, Harapriya Apartment, Vivekananda Marg, Old Town, Bhubaneswar. 2. The Respondent. ITO, Ward 2(3), Bhubaneswar. 3. The CIT(A)-II, Bhubaneswar 4. Pr.CIT, Bhubaneswar 5. DR, ITAT, Cuttack BY ORDER, 6. Guard file. //True Copy// SR.PRIVATE SECRETARY ITAT, Cuttack

6 ITA No. 425/CT K/ 2013 Asse ssment Year :20 08- 09

DHIRAJ RAJ DEB,BHUBANESWAR vs. ITO WARD-2(3), BHUBANESWAR

What did the Tribunal hold?

What were the facts?

What were the issues?

Which sections of the Income-tax Act were involved?

Recent GST High Court judgments