Rachhpal Singh, New Delhi vs Assessee

The present appeal has been filed by the assessee against the ex-parte order dated 31.10.2014 of CIT(A)-II, New Delhi pertaining to 2007-08 assessment year on various grounds. However at the time of hearing, the Ld. AR invited attention to Ground Nos.-2 & 3 which read as under:-

2. "The learned Commissioner of income Tax(A) before passing the order has not given a reasonable opportunity of being heard which is against the principle of natural justice and is bad in law.

3. The learned Commissioner of Income tax(A) dismissed the appeal on the ground that the assessee has not deposited tax in full on the income returned which is clearly against the facts on records."

2. In the context of the grounds raised, attention was invited to the impugned order so as to contend that the appeal filed by the assessee against the order dated 28.03.2014 was dismissed by the CIT(A) on wrong facts without even caring to hear the assessee. The finding under challenge is reproduced hereunder for ready-reference:-

4. "The appeal is related with the Tinna group of cases that was searched on 11/11/2010. It was noted that though the appellant had ITA No. 53/Del/2015 & SA No.-55/Del/2015

claimed in form 35 to have 'fully paid' the taxes on the returned income, against the addition of Rs.6,91,50,000 on account of unexplained investment, tax outstanding stood at Rs.3,81,72,459. Further perusal of the tax computation revealed that the appellant had paid Rs.2,98,56,252 as against the tax of Rs.3,06,30,828 on the returned income of Rs.91,2,82,870. Thus, there is a shortfall of tax on the returned income. It is evident from the facts narrated above that the appellant has made incorrect statement in Form 35 and that taxes as per returned income have not been paid. As a result, the appeal against the impugned order cannot be admitted in view of section 249(4). "

3. Inviting attention to the computation Form No.-ITNS-150 dated 26.03.2014 for the year under consideration pursuant to the order u/s 143(3)/147 it was submitted that it would show that infact there was no shortfall of tax on the returned income. In these circumstances it was his prayer that the issue may be restored to the CIT(A) in order to decide the appeal on merits after hearing the ld. AR. Confronted with the aforesaid ITNS-150 dated 26.03.2014 and considering the fact that the impugned order was passed ex-parte as the assessee was not present, the Ld. CIT DR had no objection if the issue is restored to the file to the CIT(A) for deciding the issue on merit.

4. We have heard the rival submission and perused the material available on record. It is seen that the return of income filed by the assessee disclosing an income of Rs. 9,12,82,870/- on 31.12.2008 was varied to the disadvantage to the assessee by the assessment made u/s 143(3) wherein the income of the assessee was assessed at Rs.16,04,32,870/-. It is further seen that the issue when challenged before the CIT(A) was not adjudicated upon by the CIT(A) holding that the tax was not fully paid. The aforesaid finding is disputed by the assessee and it is stated that had the opportunity been so provided the assessee would have been able to address the position. It is seen from para 3 of the impugned order that the assessee after seeking an adjournment on a specific date was not present on the next date of hearing. As such it is seen that facts could not be properly considered. Accordingly in the light of the submissions advanced by the parties and ITNS-150 dated 26.03.2014 placed on record, we set aside the impugned order and restore the issue back to the CIT(A with the direction to decide the same in accordance with law after giving the assessee a reasonable opportunity of being heard.

5. The stay petition filed by the assessee becomes infructuous.

2 ITA No. 53/Del/2015 & SA No.-55/Del/2015

6. In the result the appeal of the assessee is allowed for statistical purposes and stay becomes infructuous.

The said order was pronounced in the Open Court on 08th April, 2015.

Sd/- Sd/- (T.S.KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: the 08th April, 2015 *Amit Kumar*

Copy forwarded to:

1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI

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