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Income Tax Appellate Tribunal, DELHI BENCH “SMC”: NEW DELHI
Before: SHRI KUL BHARAT
O R D E R PER KUL BHARAT, JM:
This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 04.05.2023, pertaining to the assessment year 2012-13. The assessee has raised following grounds of appeal:
“1. That the facts and circumstances of the case and order passed by the Ld. CIT(A) is unjustified, highly excessive, uncalled for and against the rules of natural justice. 2. That the notices issues u/s 148 and 142(1) of Income Tax Act were not served as issued at the old address of the assessee. That the Ld. CIT(A) has failed to appreciate the fact that the appellant had filed his return of income for the year under consideration u/s 142(1) on 23.10.2019 pursuant to the September 2019, whereby the assessee was directed to file his return of income pertaining to AY 2012-13. However, the CIT(A) did not consider that the assessing authority did not take into consideration the return of income filed by the assessee before passing the assessment order u/s 144/147 of the Income Tax Act on 17.11.2019.
3. That the Ld. CIT(A) has erred in confirming the order passed by the assessing authority without giving the proper opportunity to explain the facts and circumstances of the case after filing of the written arguments along with documentary' proof in the course of appellate proceedings.
That the Ld. CTT(A) has failed to appreciate the fact that the appellant had filed his return of income as mentioned above on 23.10.2019 stating his current address i.e. F-3/687, Sangam Vihar, New Delhi - 110062. However, the notice(s) were issued on the old address of the assessee, as a result of which the assessee never received them and the matter was decided ex-parte by the Ld. Assessing officer.
5. That the Ld. CIT(A) has erred both on facts and in law in confirming the order of the Assessing Authority despite the fact the appellant had explained the source of cash deposit of Rs. 12,05,000/- in the bank account and disclosed the same in his return of income under the head of capital gain pertaining to the sale of properties in the relevant Assessment Year.
6. That the Ld. CIT(A) has erred in passing the order on the basis of presumption that the documents of sales and purchase submitted by the assessee in the course of appellate proceedings are not genuine without giving the proper opportunity to explain the facts or enquiry from the purchaser from whom the sale consideration amount was received. The Ld CTT(A) did not make any inquiry or considered the documents submitted at the appellate stage.
That the Ld. CIT(A) has failed to appreciate the evidence/supporting documents submitted by the appellant in furtherance of the transaction of sale of properties thereby making addition u/s 69A of the Income Tax Act on account of cash deposited in bank account despite the documents/explanation submitted by the appellant.
That the interest charged u/s 234A and 234B of the Income tax Act is illegal and unjustified. The Appellant reserves his right as consequential relief.
That the appellant has reserved his right to file the written arguments if necessary, add, alter any grounds of appeal
.”
2. Facts giving rise to the present appeal are that in this case assessment was reopened u/s 147 of the Income-tax Act, 1961 (the “Act”). In response to the statutory notices there was no representation. Therefore, the amount of cash deposited in the bank account amounting to Rs. 12,05,500/- was added in the income of the assessee and assessed at Rs. 12,05,500/-. Aggrieved against this the assessee preferred appeal before the learned CIT(Appeals) who sustained the addition. Aggrieved against it, now the assessee is in appeal before this Tribunal.
Learned counsel for the assessee submitted that the learned CIT(Appeals) dismissed the appeal without considering the submissions of the assessee that the source of cash deposit was out of the property sold and purchased by the assessee. He submitted that no effective opportunity was given to the assessee.
4. On the other hand learned DR supported the orders of the authorities below.
I have heard rival submissions and perused the material available on record.
In this case the AO framed the assessment u/s 147/144 of the Act in the absence of the assessee. The stand of the assessee was that no statutory notice was ever served on the assessee. The learned CIT(A) dismissed the assessee’s appeal by rejecting the version of the assessee that the cash deposit in bank was out of sale and purchase of land. Looking to the fact that there was no representation on behalf of the assessee before the AO and therefore the assessee failed to furnish supporting evidence, if any, before the AO, in order to subserve the interest of natural justice, it would be fair and reasonable to restore the matter to the file of AO for decision afresh after providing adequate opportunity to the assessee to represent its case. Accordingly, the order of learned CIT(Appeals) is set aside and the matter is restored to the file of AO to frame the assessment afresh after affording reasonable opportunity to the assessee to adduce relevant supporting evidence, if any, in support of its claim.
Appeal of the assessee is allowed for statistical purposes only.
Order pronounced in open court on 8th August, 2023.