VIPIN INDRAMALJI JARIWALA,SURAT vs. DY. CIT CENTRAL CIRCLE-3,SURAT, SURAT

Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of Ld. Commissioner of Income-tax (Appeals)-4, Surat [for short to as “Ld.CIT(A)”] dated 22.01.2019 for the assessment year 2015- 16, which in turn arises out of assessment order passed under section 143(3) of Income-Tax Act, 1961 (‘the Act’). The assessee has raised the following grounds of appeal: - “1.0 That on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Aps)-IV, Surat [here-in-after referred to (A.Y 15-16) Vipin I. Jariwala as Ld. CIT(Appeals) was not justified and grossly erred in not providing an additional opportunity to appellant of hearing which remain unattended as appellant’s concern person has left the job and non of the heading notice did not came to knowledge of appellant.

3.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in by accepting the addition made on the account of Rs.1,44,000/- on the basis of Annexure BS-53 page no.79 of the diary taken to be representing unexplained cash payments.

4.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in by accepting the addition made on account of Rs.60,00,000/- on the basis of Annexure BS – 53 page no.61, 62 of the diary taken to be representing unexplained cash receipts.

5.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the Assessing Officer in by accepting in solely relying upon third party evidences for making the addition in question and not providing the appellant the opportunity of cross examination before jumping to the conclusion .

(A.Y 15-16) Vipin I. Jariwala 6.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the Assessing Officer in by accepting the to establish the identity of the appellant and thereby to prove beyond doubt that the name as appearing in the seized documents is of the appellant only and establish the identity of any such Shri Atul Adani and / or Shri Sanjay Shah.

7.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in by accepting the addition of rs.60,00,000/- as unexplained cash receipts in the hands of the appellant in the light of the fact that as per the contention of the firm M/s Param Properties, the transaction is of loan taken by the appellant.

8.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in by accepting the assessment order in not considering the fact that the firm M/s Param Properties has clearly stated, in their reply in response to the notice u/s 133(6) of the Income Tax Act, 1961, that the total transaction was of Rs.50,00,000/- only.”

s on merit. The assessee was not given fair and proper opportunities of hearing to the assessee. The ld. AR for the assessee submits that assessee has a good case on merit and is likely to succeed, if one more opportunity is allowed to hear the cases on merits and the assessee be allowed to file necessary evidence in support of his claims. The ld. AR for the assessee submits that assessee was not attended before the Ld. CIT(A) as the notice were issued on “A-402, Malabar Hill Apartment, Umra, Surat-395007” but the assessees address was 5/83, 5th Floor, Jash Apartment, Somnath Mahadev Road, Umra, Surat-395007 as per “From-36” in Appeal Form filed by assessee. The ld AR for assessee further submits that ld CIT(A) issued only two notices, however, in the order he has mentioned three notices, which is factually incorrect as per the details mentioned on ITBA portal. The ld. AR for the assessee submits that he undertakes on behalf of the assessee to be vigilant in future and to make the proper compliance of the notices and will not default in future for the purpose of service of notice(es) given in Form-36 of Appeal Form.

3. On the other hand, Ld. Sr-DR for the Revenue opposed the contentions of Ld. AR for the assessee and would submit that (A.Y 15-16) Vipin I. Jariwala assessee was given sufficient and reasonable opportunities of hearing, however, the assessee failed to make any compliance despite the service of two consecutive dates. The ld Sr DR for the revenue submits that the notices were generated as per the address available in the system. As per record the address in the system was of assessees address mentioned in the record of his PAN. The ld Sr DR for the revenue submits that and now assessee does not deserve further opportunity.

4. We have considered the rival submissions of both the parties and have gone through the orders of the authorities below. We find that Assessing Officer passed assessment order under section 143(3) on 29.12.2017. In the assessment order, the Assessing Officer made addition of Rs.1.44 lakhs on account of unexplained cash payments and addition of Rs.60 lakhs on account of unexplained cash receipts. The Ld. CIT(A) upheld the addition in ex parte order by taking view that three notices were served through notices but none of the notices were compiled by the assessee. Before us, the ld. AR for the assessee made submission that assessee was not received such notices owing to wrong address mentioned on those 5