ANIL KUMAR,GHAZIABAD vs. ITO,WARD-2(1), GHAZIABAD

This appeal is filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals) [hereinafter referred to CIT (Appeals)]/National Faceless Appeal Centre [NFAC] dated 25.11.2022 for assessment year 2017-18 in sustaining the addition 1 of Rs.7,22,590/- made under section 69 of the Income Tax Act, 1961 (the Act).

The ld. Counsel for the assessee submits that the assessee is doing petty business of gas stove repair filed return of income on 31.03.2018 declaring an income of Rs.1,83,930/- under section 44AD of the Act. Ld. Counsel submits that the case of the assessee was selected for limited scrutiny to examine the credit card payments. Ld. Counsel submits that notice under section 143(2) of the Act dated 9.08.2018 was issued to the assessee and subsequently notice under section 142(1) of the Act was issued on 12.09.2018 calling for various details. The assessee furnished the details/replies on 27.09.2018 giving bank details, complete identification/address of persons, who used assessee’s credit card etc. Ld. Counsel submits that after furnishing thed reply and details by the assessee the Assessing Officer has not provided any opportunity of hearing nor issued any show cause notice and the assessee could not explain his case before the Assessing Officer. The Assessing Officer without providing any further opportunity to the assessee to explain the issue of cash deposit in the bank account completed the assessment on 21.12.2019 making addition of Rs.7,22,590/-. 3. The ld. Counsel submits that on appeal the ld. CIT (Appeals) sustained the addition. The ld. Counsel for the assessee submits that the ld. CIT (Appeals) issued notices dated 28.07.2022 and 24.08.2022 fixing the date of hearing on 4.08.2022 and 31.08.2022 respectively from NFIC through email on which dates the assessee sought adjournment through his counsel. The ld. Counsel submits that except these notices no other notice fixing the date of hearing 2 on 17.11.2022 by the ld. CIT (Appeals) was received by the assessee and, therefore, the assessee could not represent before the ld. CIT (Appeals) to explain his case. Ld. Counsel submits that the assessee filed an affidavit stating that the assessee has not received any further notices from the Assessing Officer or the ld. CIT (Appeals) to explain the contentions of the assessee. Therefore, the ld. Counsel submits that the matter may be restored to the Assessing Officer for providing an opportunity to the assessee to explain his case as the Assessing Officer without providing adequate opportunity to the assessee completed the assessment.

The ld. DR has no serious objection in restoring the matter to the file of the Assessing Officer.

On hearing both the parties and perusing the orders of the authorities below and the affidavit furnished before me, I am of the opinion that the assessee was denied proper opportunity by the Assessing Officer as well as the ld. CIT (Appeals). Taking the totality of facts and circumstances into consideration, the issue in appeal is restored to the file of the Assessing Officer for de novo adjudication in accordance with law after providing adequate opportunity of being heard.

In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on : 22/05/2023.