Income Tax Appellate Tribunal - Agra
M/S Vikram Singh, Jhansi vs Ito 6(3), Jhansi on 28 February, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
AGRA (SMC) BENCH: AGRA
BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER
I.T.A No. 321/Agra/2016
(ASSESSMENT YEAR-2012-13)
M/s Vikram Singh, ITO, -6 (3),
272 CP Mission Compound, Jhansi.
Jhansi.
PAN No.ASVPS7679C
(Assessee) (Revenue)
Assessee by Shri R. C. Tomar, AR
Revenue by Shri Waseem Arshad, Sr.DR.
Date of Hearing 06.02.2018
Date of Pronouncement 28.02.2018
ORDER
This is assessee's appeal for assessment year 2012-13. The following grounds have been raised:
"01. That the Ld. C.I.T. (A) has erred on facts and in law to pass the ex-parte order in absence of service of notice of hearing on the appellant.
02. That the Ld. C.I.T. (A) has erred on facts and in law to treat the transfer of Rs. 2,75,687/- out of business fund as unexplained investment u/s 69 without looking into the case record.I.T.A No. 321/Agra/2016 2
03. That the A.O. has erred on facts and in law to treat the following transfer entries in bank account duly reflected in assessee's capital account as an unexplained cash credit u/s 68;
Date 29.04.2011 by transfer Rs. 5.00 lac Date 13.10.2011 by transfer Rs. 15.00 lac Date 09.11.2011 by transfer Rs. 1.25 lac
04. That the addition of Rs. 2.00 lac u/s 68 in bank account out of business fund and covered by preceeding withdrawal made from bank account is unjust, arbitrary and illegal.
05. That the C.I.T. (A) has erred on facts and in law to sustain addition of Rs. 5.00 lac an unexplained investment u/s 69 of IT. Act.
06. The C.I.T. (A) has erred on facts and in law to sustain the estimate of contract receipts at Rs. 90.00 lac against disclosed contract receipts at Rs. 85,56,626/- as per information on Form No. 26AS without looking into the case record of the assessee and the estimate made on mere presumption, arbitrary, unjust and without basis.
07. That in the case of subcontractors Net Profit rate applied at 10% against disclosed rate of GP and NP at 14.59% and 5.51% respectively is arbitrary and excessive.I.T.A No. 321/Agra/2016 3
08. That the addition for extra profit sustained at Rs.
4,31,384/- by applying net profit rate at 10% is unjust and arbitrary."
2. Apropos Ground No.1, the ld. CIT(A) has observed as follows:
"3. Notice for hearing of the case were issued on 14.12.2015 fixing the matter for hearing on 29.12.2015, however none attended. Another notice dated 30.12.2015 was issued fixing date of hearing on 06.01.2016. This notice was sought to be served through AO and per the report of the AO, the same was served on the assessee on 05.01.2015, however, none attended even on the said date. Another notice dated 11.01.2016 was issued fixing the date of hearing on 02.02.2016, out again none attended on the fixed date of hearing. In view of repeated non compliance, last and final opportunity was provided to the assessee vide notice dated 03.02.2016 fixing date of hearing on 03.03. 2016, which was sought to be served through AO and as per the report of the AO, the same was served on the assessee on 10.02.2016. However, the assessee failed to avail off this opportunity too. Besides, through another notice dated 24.02.2016 also, the appellant was provided opportunity, for hearing on same date i.e. 03.03.2016, however no compliance has been made by the appellant even to the 'Final Opportunity' as I.T.A No. 321/Agra/2016 4 given to the appellant. Therefore, under the aforesaid circumstances, I have no alternate, but to decide the case ex-parte qua assessee and on the basis of material available on record."
3. In this regard, before this Bench, the assessee has filed an affidavit, which, for ready reference, is being reproduced as under:
"I, R.C.Tomar, I.T.P. hereby depose and state on oath as under:-
1. That I am the authorised representative in the above mentioned case and has been entrusted to contest the appeal before the Ld. CIT (A)-2, Agra and before the Hon'ble ITAT.
2. That the notice of hearing dated 30.12.2015 issued fixing the date of hearing on 06.01.2016 was served on the assessee on 05.01.2015 as mentioned by C.I.T.(A) in 5th line of para 3 of his order. Correct date is 05.01.2016.
3. That sufficient time was not provided to make compliance from the place of more than 200 Kms where the assessee is residing i.e. at Jhansi and the papers could not reach the undersigned within the period of 12 hrs. I.T.A No. 321/Agra/2016 5
4. That the notice dated 11.01.2016 is stated to have been issued fixing the date of hearing on 02.02.2016 but there is no mention about the date of service of this notice.
5. That the CIT (A) in his order has mentioned that two notices dated 03.02.2016 and 24.02.2016 were issued fixing the same date of hearing i.e. 03.03.2016. These notices were overlaping.
6. That the undersigned has prepared the written submission to make compliance of the notice issued for 03.03.2016 but the same could not be submitted before the C.I.T. (A) as the undersigned had to leave the station suddenly for attending his wife who became ill at the village. The copy of written submission is enclosed as taken from the computer.
7. That in view of aforesaid facts, the undersigned was prevented by sufficient cause from making compliance before the Ld. C.I.T. (A).
8. The contents of the affidavit from Sr. No. 1 to 7 are true to the best of my knowledge and belief."
4. In view of the above affidavit, the matter is remitted to the file of the ld.
CIT(A), to be decided afresh on merits, on affording due and adequate opportunity of hearing to the assessee. All pleas available under the law shall I.T.A No. 321/Agra/2016 6 remain so available to the assessee. The assessee, no doubt, shall co-operate in the fresh proceedings before the ld. CIT(A). Ordered, accordingly.
5. In the result, for statistical purposes, the appeal of the assessee is treated as allowed.
Order pronounced in the open court on 28/02/2018.
Sd/-
(A.D. JAIN) JUDICIAL MEMBER Dated 28/02/2018 *AKV* Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT ASSISTANT REGISTRAR