MAHESH AGARWAL HUF ,JAIPUR vs ITO WARD 6(2), JAIPUR

Income Tax Appellate Tribunal, JAIPUR BENCH “A”, JAIPUR

Before: HON’BLE SHRI SANDEEP GOSAIN, JM &

PER SANDEEP GOSAIN, J.M.

This is an appeal filed by the assessee against the order of ld. CIT (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 17.12.2022 for the assessment year 2014-15 passed under section 250 of the I.T. Act 1961. The grounds raised by the assessee are reproduced below :-

Under the facts and circumstances of the case the Ld. NFAC has grossly erred in deciding the appeal ex-parte, without providing sufficient opportunity to appellant, here the Ld. NFAC ought to have decided the appeal on merits instead of dismissing the appeal for non- attendance.

2 ITA No. 66/JP/2023 Mahesh Agarwal HUF, Jaipur.

Under the facts and circumstances of the case the Ld. NFAC was not justified in confirming the addition as made by Ld. AO of Rs. 44,31,664/- on account of alleged Unexplained Credit u/s 68 for alleging Bogus Exemption claimed U/s 10(38) of the act, during the year without evidence and without considering the materials and explanations available on records in their true perspective and sense.

Under the facts and circumstances of the case the Ld. NFAC was not justified in confirming the addition as made by AO of Rs. 2,78,392/- on account of commission u/s 69C without appreciating the facts available on records and without considering them in their true perspective and sense therefore complete addition should be deleted,

The Ld. NFAC has grossly erred in confirming the addition as made by Ld. AO on the basis of statement recorded of the persons which are not concern with the company which shares have been traded though the concerns persons, despite of having provided the List of concern persons by the assesse.

The Ld. NFAC has grossly erred in confirming the addition as made by Ld. AO by denying opportunity of cross examination of the persons (witness) on which recorded statements are the basis of addition though the Apex courts verdict in ANDMAN TIMBER strongly recommended such opportunity of cross examination.

The ld. NFAC has grossly erred in confirming the addition on account of bogus long term capital gain u/s 10(38) and Commission u/s 69C without having any corroborative material on record against the complete valid chain of documents as submitted by the assessee.

3 ITA No. 66/JP/2023 Mahesh Agarwal HUF, Jaipur.

The appellant reserved her right to add, amend or alter the grounds of appeal on or before the date of appeal hearing.

The brief facts of the case are that assessee E-Filed his return of income for

the Assessment Year 2014-15 on 29.08.2014 declaring a total income of Rs.

9,66,830/-. The return was processed under section 143(1)(a) of the Income Tax

Act, 1961. The case of the assessee was selected for scrutiny under CASS and

accordingly notice u/s 143(2) of the IT Act, 1961 was issued on 18.09.2015. Notice

under section 142(1) was issued along with questionnaire on 01.01.2016 and

01.07.2016. In response to these notices, the assessee submitted necessary details

and explanations. The AO completed the assessment under section 143(3) of the

I.T. Act, 1961 and assessed the income of the assessee at Rs. 56,76,886/- by

making addition of Rs. 44,31,664/- on account of bogus Long Term Capital Gain and

Rs. 2,78,392/- on account of Commission paid for acquiring such accommodation

entry vide his order dated 15.12.2016. Aggrieved by the order of AO, the assessee

preferred appeal before the ld. CIT (A), NFAC, which was dismissed by the ld. CIT

(A) vide his order dated 17/12/2022 for non-compliances of the notices/not

submitting the documents or making submissions by the assessee or his

representative on the dates fixed for hearing.

Now the assessee is in appeal before us.

We have heard the rival contentions, perused the material available on record

and gone through the orders of the revenue authorities and the case laws cited

before us. At the very outset, we noticed that the assessee has taken first ground of

4 ITA No. 66/JP/2023 Mahesh Agarwal HUF, Jaipur.

appeal that NFAC has erred in deciding the appeal ex parte without providing

sufficient opportunity to the assessee and dismissed the appeal of the assessee for

non compliance/attendance. On perusal of case file, we noticed that the ld. CIT (A)

has categorically mentioned in his order that opportunity of hearing was given to the assessee from time to time on several occasions vide notices dated 13th January, 2021, 27th September, 2021, 5th October, 2021, 5th July, 2022, 4th August, 2022 and 28th November, 2022 but the assessee could not furnish any details and was only

seeking adjournments. Whereas on the contrary, the ld. A/R has filed Paper Book

before us, which contained pages 1 to 49 and the ld. A/R has also certified that all

the above annexures contained therein were before the lower authorities, but the ld.

CIT (A) has failed to examine the said documents and has decided the appeal of the

assessee ex parte by adopting short cut method. It was further submitted by ld. A/R

that he had sought adjournments for addressing the arguments but the ld. CIT (A)

did not adjourn the hearing of the appeal and rather decided the appeal ex parte.

3.1 After having gone through the entire facts of the present case and also after

hearing the parties at length, we noticed that although the assessee has placed on

record the paper book containing different documents in support of his contention

and he has also certified all the above annexures contained therein were before the

lower authorities, whereas on the contrary, the ld. CIT (A) has categorically

mentioned in his order that no details were furnished by the assessee. Since both

the parties have raised conflicting pleas, therefore, instead of going into the same at

this stage, we deem it proper to restore the matter back to the file of the ld. CIT (A)

with a direction to decide the issue afresh after considering the documents placed on

paper book pages 1 to 49 which are in the shape of contract notes, financial ledger,

5 ITA No. 66/JP/2023 Mahesh Agarwal HUF, Jaipur.

bank statement, purchase bill of shares, bank statement receipt/confirmation of

account, intimation of declaration of bonus shares etc. etc. after giving an

opportunity of hearing to the assessee.

Our decision to restore the matter back to the file of ld. CIT (A) is based on

the undisputed fact that the ld. CIT (A) has decided the appeal without considering

the documents as according to him the assessee has not furnished any details

before him. Even otherwise, it is a right of every litigant to get its case decided on

merits. Therefore, considering this principle in mind, we have decided to restore the

matter back to the ld. CIT (A) for decision afresh.

Before parting, we may make it clear that our decision to restore the matter

back to the file of the AO shall in no way be construed as having any reflection or

expression on the merits of the dispute, which shall be adjudicated by the AO

independently in accordance with law.

In the result, appeal of the assessee is allowed for statistical purposes

Order pronounced in the open court on 23/08/2023.

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सहायक पंजीकार@Aेेज. त्महपेजतंत

MAHESH AGARWAL HUF ,JAIPUR vs. ITO WARD 6(2), JAIPUR