SHRI MOHD AMIN MALIK,JAMMU vs. INCOME TAX OFFICER WARD-2(1), JAMMU
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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
Per Dr. M. L. Meena, AM:
This appeal has been filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), Jammu dated 30.12.2019 in respect of Assessment Year 2011-12.
2 ITA No. 99/Asr/2020 Mohd. Amin Malik v. ITO 2. The assessee has raised the following grounds of appeal:
“1. That the Worthy Commissioner of Income Tax (Appeals) Jammu and Ld. Income Tax Officer Ward 2(1) Jammu have erred in law, facts and circumstances of the case. In any case they have not applied their mind to the actual facts, IegaI propositions and circumstances of the case
That the Worthy Commissioner of Income Tax (Appeals) Jammu has erred in confirming and upholding the addition of cash Bank deposits amounting to Rs. 13,50,000/- arbitrarily, illegally and without any justification.
That the Worthy Commissioner of Income Tax (Appeals) Jammu has erred in ignoring the justified true and genuine explanations of cash deposits presented before him and before the Ld AO and conformed the addition of Rs.13,50,000/- arbitrarily, illegally and without any justification,
That the Worthy Commissioner of Income Tax (Appeals) Jammu and LD. Income tax officer Ward 2(1) Jammu have erred in not servicing the statutory notices to the appellant to represent his case property.
That the appellant craves leave to add or amend any ground of appeal.”
Apropos ground no. 4, the appellant assessee has challenged the
order of the ld. CIT(A) that no notices have been served upon the assessee
to enable it to represent its case before the CIT(A).
3.1 The Ld. AR submitted that the Commissioner of Income Tax
(Appeals) Jammu has erred in law and on facts in dismissing appeal
without application of his mind to the actual facts, IegaI propositions and
circumstances of the case; that he upholds the addition of cash deposits
3 ITA No. 99/Asr/2020 Mohd. Amin Malik v. ITO amounting to Rs. 13,50,000/- in arbitrarily manner and that due to non-
service of the statutory notices on the asessee, the dismissal of the appeal
of the assesee in limine, is in violation of principles of natural justice. He
pleaded that the matter may be remanded to the CIT(A).
Per contra, the Ld DR although supported the impugned order,
however, he failed to rebut the contention of the counsel.
We have heard the rival contentions, perused the material on record,
impugned order, written submission and case law cited before us.
Admittedly, the Ld. CIT(A) has not mentioned the factum of service of either
regular notices or the show cause notice alleged to be issued to the
assessee. It is seen that the ld. CIT(A) has decided the appeal vide para 3
of the impugned order as under:
“3. I have considered the facts of the case and the written submissions filed by the Authorized Representative of the appellant. From the written submissions filed, it transpires that the appellant has merely filed self made cash book without any supporting document. No evidence is filed regarding availability of cash in hand as on 31.03.2009, 31.03.2010 and 31.03.2011. Further, there is no evidence of sale/purchase of any pet and of any dairy business of the appellant. During the year under consideration, the appellant was receiving salary from PWD Deptt. where he was an employee and considering this aspect, it is difficult to believe that he was able to manage dairy business which is also a fulltime job. The assessee had saving bank account in J&K Bank, Sidhra where he had deposited cash amounting to Rs. 13,50,000/- during the period 01.04.2010 to
4 ITA No. 99/Asr/2020 Mohd. Amin Malik v. ITO 31.03.2011. Since, the assessee has not furnished the source of the above mentioned cash deposit amounting to Rs. 13,50,000/- during the period under consideration before the Assessing Officer as well as before me, I have no reason to interfere in the order of the Assessing Officer and upheld the addition of Rs. Rs.13,50,000/-. Regarding service of notice, it was the duty of the appellant to intimate the Assessing Officer about the change in address. But as the facts are narrated in the assessment order, he did not file the return of income despite having taxable income and only after receipt of notice from the A.O., return was filed. Considering the totality of facts and circumstances, all interconnected grounds of appeal are dismissed.”
The Ld. AR contended that at that time assessment, the assessee
was at Delhi in connection with his Knee replacement and that as such, no
reasonable and proper opportunity of being heard was allowed as notice
was never served on the assessee and this fact has already been brought
to the notice of the department (APB, Pgs. 67-68). He further contended
that only two days’ time was allowed for compliance by the AO as the case
was going to be barred by time. The Ld. CIT (A) has not appreciated the
fact of the case, though duly explained before the worthy CIT(A) on
11/10/2019 (APB, Pgs. 9-10).
From the above, it is evident that the Ld. CIT(A) while upholding the
addition of cash deposits amounting to Rs. 13,50,000/- acted in arbitrarily
manner without appreciating the facts of the case and rebutting the
submission of the appellant. In our view, the CIT(A) acted in violation of
5 ITA No. 99/Asr/2020 Mohd. Amin Malik v. ITO principles of natural justice due to not servicing the statutory notices on the
asessee and thereby dismissing the appeal of the assesee in limine.
Considering the peculiar facts of the case, in our view, it deem fit to
remand the matter back to the file of the CIT(A) with the direction to
adjudicate the appeal afresh on merits after considering the material
evidence filed on record, to be filed during fresh proceedings and by
granting adequate fresh opportunity of being heard, in view of the principle
of natural justice. Accordingly, the case is restored to the CIT, to decide
the appeal afresh by speaking order on merits of the case as per law. No
doubt, the assessee shall cooperate in the fresh proceedings.
In the result, the appeal filed by the assessee is allowed for statistical
purpose.
Order pronounced in the open court on 18.07.2023
Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS*
6 ITA No. 99/Asr/2020 Mohd. Amin Malik v. ITO Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy By Order
