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

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 :-

5. 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.

6. 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.

2. 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.

3. 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 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, 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.

4. 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.

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