Gaya Prasad Genda, Kanpur vs Assessee

Gaya Prasad Genda v. Income Tax Officer 1(I) Prop. Amar Nath & Co. Kanpur 51/7, Ramganj, Kanpur TAN/PAN:AAUPG6746M (Appellant) (Respondent)

Appellant by: Shri. Rakesh Garg, Advocate Respondent by: Shri. K. C. Meena, D.R. Date of hearing: 17 03 2015 Date of pronouncement: 26 03 2015

ORDER

PER SUNIL KUMAR YADAV:

This appeal is preferred by the assessee against the order of the ld. CIT(A), inter alia, on various grounds which are as under:-

1. Because the order passed by the CIT(A) dismissing the appeal in default is contrary to facts, bad in law and be set aside.

2. Because there being no service of notice on the assessee, the assessee was prevented by sufficient and reasonable cause in not complying the same.

3. Because the order passed by the CIT(A) being a non-speaking order, without considering the material available on record as well as the statement of facts and grounds of appeal, the action of the CIT(A) in dismissing the appeal is totally unwarranted and unjustified.

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4. Because the CIT(A) was not justified in upholding addition of Rs.2,00,000/- in the name of Suraj Raj Nahata and Rs.1,00,000/- in the name of Sanjay Nahata, being deposits received from them, as unexplained income from undisclosed sources u/s.68 of the Act, 1961.

5. Because the CIT(A) has erred on facts and in law in relying upon the statement on oath of Suraj Raj Nahata/Sanjay Nahata recorded by the AO in the absence of the assessee, and without giving the assessee an opportunity to rebut the same, thereby has upheld the addition of Rs.2,00,000/- in the name of Suraj Raj Nahata and Rs.1,00,000/- in the name of Sanjay Nahata, which addition being bad in law, without jurisdiction be deleted.

6. Because the cash credits of Rs.2,00,000/- in the name of Suraj Raj Nahata and of Rs.1,00,000/- in the name of Sanjay Nahata' can not be treated as unexplained in as much as confirmations were filed by them certifying the transaction, through account payee cheques, assessed to Income Tax, disclosed in their return, and if any written submission contrary to its confirmations were filed by the depositors before AO, no adverse view against the appellant assessee may be taken until and unless an opportunity to submit explanation in respect thereto is provided. However deposits of money through cheques have not been denied by them, therefore said cash credits cannot be treated as unexplained and no additions towards income as income from undisclosed source are justified, more so when the deposits have been repaid with interest.

7. Because the CIT(A) has erred on fact and in law in upholding the disallowance of interest payment to depositors amounting to Rs.24,500/- and Rs.12,250/-without considering t he facts and circumstances of the case.

8. Because the CIT(A) has erred on facts and in' law in upholding :-3-:

the disallowance of commission paid to Gaya Prasad Genda HUF Rs.67,000/- and Amar Nath Genda HUF Rs.51,000/-. Such disallowance are contrary to facts, bad in law be deleted.

9. Because the CIT(A) has erred on facts and in law in upholding the disallowance out of vehicle expenses and depreciation on car amounting to Rs.9,087/- and Rs.7,852/- being 175th of the total claim.

2. During the course of hearing, the ld. counsel for the assessee has invited our attention to the order of the ld. CIT(A) with the submission that the ld. CIT(A) has adjudicated the appeal of the assessee on merit without affording proper opportunity of being heard to the assessee. The ld. counsel for the assessee has further contended that in the interest of justice, the order of the ld. CIT(A) may be set aside and restored to his file for adjudication of the appeal on merit after affording an opportunity of being heard to the assessee.

3. The ld. D.R. opposed the contentions of the ld. counsel for the assessee with the submission that the assessee did not appear despite affording opportunity of being heard to the assessee.

4. Having carefully examined the order of the ld. CIT(A), we find that the ld. CIT(A) has fixed two dates of hearing, but it is not clear from his order whether notice of hearing was ever served upon the assessee. From a perusal of the order of the ld. CIT(A), we find that proper opportunity was not afforded to the assessee to prosecute his case. Therefore, we are of the view that in the interest of justice, one more opportunity should be afforded to the assessee. Accordingly, we set aside the order of the ld. CIT(A) and restore the matter to his file with a direction to dispose of the :-4-:

appeal on merit after affording an opportunity of being heard to the assessee, by passing a reasoned order.

5. In the result, appeal of the assessee is allowed for statistical purposes.

Order was pronounced in the open court on the date mentioned on the captioned page.

Sd/- Sd/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER

DATED:26th March, 2015 JJ:1703

Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR Assistant Registrar