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Income Tax Appellate Tribunal, CIRCUIT BENCH, VARANASI
Before: SHRI VIJAY PAL RAO & SHRI RAMIT KOCHAR
ORDER
PER RAMIT KOCHAR, Accountant Member This appeal filed by assessee in ITA.No.13/VNS/ 2020 has arisen from appellate order dated 09.12.2019 passed by learned Commissioner of Income-tax (Appeals), Gorakhpur (hereinafter called “the CIT(A)”) in Appeal No. CIT(A)/GKP/018-19 for assessment year 2016-17, the appellate proceedings before ld. CIT(A) has arisen from
2 ITA.No.13/VNS/2020 Shri Amar Nath Yadav, Gorakhpur. Assessment year 2016-17 assessment order dated 24.12.2018 passed by Learned Assessing Officer (hereinafter called “the A.O.”) under section 144 of the Income-tax Act, 1961 (hereinafter called “the Act”).
The brief facts of the case are that the assessee’s case was selected by Revenue for framing limited scrutiny u/s 143(3) of the 1961 Act on the ground “whether the cash deposit has been made from disclosed sources” “Large cash deposits in savings bank account and assessee has also transferred one or more properties during the year.” Accordingly notice under section 143(2) of the 1961 Act were issued by AO to the assessee on 11.08.2017 and 23.08.2017, which were duly served on the assessee, but, there was no compliance made by the assessee. Thereafter, notices under section 142(1) of the 1961 Act were issued by AO to the assessee on 25.05.2018, 07.12.2018, 14.12.2018 and 20.12.2018 respectively, which again remained un-complied with by the assessee, which led to additions to the income being made by the AO in the hands
3 ITA.No.13/VNS/2020 Shri Amar Nath Yadav, Gorakhpur. Assessment year 2016-17 of the assessee to the tune of Rs.40,30,100/- towards investment made in purchase of immovable property. Further addition of Rs.12,36,300/- was made by the A.O. to the returned income on account of cash deposits made by the assessee in his bank account with Union Bank of India, on various dates. Thus, the income was assessed by AO at Rs.60,02,100/- as against the returned income by assessee at Rs.7,35,700/-, vide ex-parte assessment order dated 24.12.2018 passed under section 144 of the 1961 Act.
2.1. The assessee being aggrieved by assessment order passed by A.O, filed first appeal before Learned CIT(A), but, despite several notices being issued to the assessee by Learned CIT(A), there was no compliance by the assessee and, therefore, the Learned CIT(A) passed an ex-parte order in limine without discussing the issues on merits,by relying on the decision of ITAT, Delhi Bench, Delhi in the case of CIT vs., Multiplan India Ltd., reported in 38 ITD 320 (Del.) and the decision of Hon’ble Madhya Pradesh High Court in 4 ITA.No.13/VNS/2020 Shri Amar Nath Yadav, Gorakhpur. Assessment year 2016-17 the case of Estate of Late TukojiRaoHolkar v. CWT reported in [1997] 223 ITR 480 [M.P.].
Aggrieved by appellate order passed by Learned CIT(A), the assessee has now filed second appeal before the tribunal. However, none appeared on behalf of the assessee before the tribunal, when this appeal was called for hearing before the Division Bench on 04th July, 2022, nor any adjournment application is moved by the assessee.
The Learned Sr. D.R. submitted that the Learned CIT(A) has passed an ex-parte order as the assessee was not cooperating before him. It was also submitted that assessee had not cooperated even before the A.O. also and, therefore, the A.O. passed an ex-parte assessment order under section 144 of the 1961 Act.
We have considered the submissions of the Learned Sr. D.R. and perused the material available on record. We have observed that the assessee’s case was selected by Revenue for framing limited scrutiny u/s 143(3) of the 1961 Act, as there were cash deposits in the bank
5 ITA.No.13/VNS/2020 Shri Amar Nath Yadav, Gorakhpur. Assessment year 2016-17 account of the assessee maintained with Union Bank of India and also that the assessee has also purchased immovable properties. The A.O. issued notice under section 143(2) and 142(1) of the 1961 Act from time to time, but, no compliance were made by the assessee before the AO, which led AO to pass an ex-parte assessment order, whereby an addition of Rs.40,30,100/- was made to the income of the assessee on account of investment made by the assessee in purchase of an immovable property, and further addition of Rs.12,36,300/- was made by the A.O. to the income of the assessee on account of cash deposit made by the assessee in the bank account maintained with Union Bank of India, during the year under consideration. The assessee being aggrieved by the assessment order, filed first appeal with Learned CIT(A) who dismissed the appeal of assessee ex-parte in limine without discussing the issue’s on merits, by infringing provisions of Section 250(6) of the 1961 Act, which reads as under :
- “Section 250(6) The order of the 12 Deputy Commissioner (Appeals)] or, as the case may be, the 6 ITA.No.13/VNS/2020 Shri Amar Nath Yadav, Gorakhpur. Assessment year 2016-17 Commissioner (Appeals)] disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”
5.1. We have observed that the assessee is also equally responsible for his woes because as many as six notices for hearing were issued by Learned CIT(A) to assessee, from time to time, but, the assessee has not complied with the said notices. However, in view of the Section 250(6) of the 1961 Act, even if the assessee has not appeared before Learned CIT(A), it was incumbent on Learned CIT(A) to have decided all the issues arising in appeal on merits in accordance with law, by giving reasons for his decision in the matter. Since, in the instant case, the Learned CIT(A) has simply passed an ex-parte appellate order in limine without going into the merits of the case, we are of the considered view that the appellate order passed by Learned CIT(A) cannot be sustained in the eyes of law. We, therefore, set aside the appellate order passed by ld.
7 ITA.No.13/VNS/2020 Shri Amar Nath Yadav, Gorakhpur. Assessment year 2016-17 CIT(A) and restore the matter back to the file of Learned CIT(A) for fresh determination of the issues on merits in accordance with law, after giving reasonable and sufficient opportunity of being heard to the assessee. In case, the assessee do not co-operate before ld. CIT(A) in the set aside remand proceedings, the ld. CIT(A) shall be free to decide all the issues in appeal on merits in accordance with law, in compliance of Section 250(6) of the 1961 Act. Accordingly, the appeal of the assessee is allowed for statistical purposes. We order accordingly.
In the result, appeal of the Assessee in ITA.No. 13/VNS/2020 for ay: 2016-17 is allowed for statistical purposes.
Order pronounced in the open Court on conclusion of hearing i.e., on 04.07.2022 in the presence of ld. Sr. DR.
VIJAY PAL RAO RAMIT KOCHAR JUDICIAL MEMBER ACCOUNTANT MEMBER Varanasi, Dated 04th July, 2022 VBP/-
8 ITA.No.13/VNS/2020 Shri Amar Nath Yadav, Gorakhpur. Assessment year 2016-17 Copy to 1. The appellant –Shri Amar NathYadav, HIG-113, Shastripuram, Gorakhnath, Gorakhpur, U.P. 2. The respondent -The Income Tax Officer,Ward 1(1), AayakarBhawan, Civil Lines, Goraphpur, U.P. 3. The Learned CIT(A) –Gorakhpur, U.P. 4. The Learned CIT , Gorakhpur, U.P. 5. The Sr. D.R. ITAT, Varanasi Bench, Varanasi. 6. Guard File. //By Order//