9911796707
TMI Blog2022 (9) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... of Form 36, the assessee has mentioned the date of service of order as 17/11/2021. On confronting such fact, the ld. AR of the assessee submits that though, there is no delay in filing present appeal as the impugned order was received by assessee only on 17/11/2021 and the appeal was filed well within time on 16/12/2021, from the communication/receipt of impugned order, yet the assessee has filed his affidavit for condoning the delay in filing appeal for technical reasons/abandon caution. The ld. AR submits that in the affidavit, the assessee has specifically deposed that appeal in quantum assessment was filed on 12/01/2017. No notice of hearing of appeal was received from the office of ld. CIT(A). The assessee came to know about the dismissal of appeal only when he has received the dismissal order of penalty appeal. The assessee immediately made login on the portal of department and came to know that appeal of assessee has already been dismissed. The ld. AR for the assessee submits that in the affidavit, the assessee clearly made statement on oath that no notice of hearing of appeal was received by him. His statement is duly corroborated by the contents of order of ld. CIT(A). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as per law, the CIT(A), NFAC was not justified in dismissing the appeal. (II) Reopening of assessment: (1) The ld. CIT(A) was not justified in confirming the reopening particularly when the reasons for reopening were not communicated to the appellant. (2) With the reopening thus bad in law, the learned CIT(A) ought to have called for the records and struck down the reopening. (III) Merits: (1) On the facts and circumstances of the case, the learned CIT(A) was not justified in confirming the addition of Rs. 37,00,286 in respect of cash deposited in the bank. (2) The learned CIT(A) ought to have appreciated that the appellant being a small time operator of STD/PCO and hailing from Bihar was only rendering services only to large number of people from Bihar who have settle in Surat to send remittances to their relatives in Bihar on paltry commission. (3) Without prejudice to the above, bank account not being books of accounts, deposits therein would not attract provisions of section 68." 8. Brief facts of the case are that the case of the assessee was reopened under Section 147 of the Act on the basis of AIR information. Notice under Section 148 dated 29/03/2016 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his reply. The reply of assessee was not accepted by the Assessing officer. The Assessing officer noted that in the reply, the assessee stated that he is an uneducated person and working as an Assistant in tailoring firm which is a very vague reason as the assessee has communicated with the department in english language. On the contention that the assessee was assisting a large number of persons from his native place by collecting their money and sending it to their relatives in Bihar was not accepted by taking a view that payment deposited by ash and withdrawal through ATM. The ATM card can only be used by the account holder, how the person in Bihar was withdrawing through ATM, there is no facility in banking system to issue multiple number of ATM cards of a single account holder. On the decision relied upon by the assesse in case of Om Prakash Sharma in ITA No. 2256/Del/2009 and the Bhaichand H Gandhi, Bombay High Court 141 ITR 67 (Bom), the Assessing Officer held that the facts of the said cases have no relevancy with the facts of the present case. The income of assessee as declared in return of income of Rs. 1,49,040/- was reduced from cash credit and thereby addition of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions of both the parties and have gone through the orders of the lower authorities carefully. We find that the Assessing officer made addition on account of unexplained cash credit in the bank account of assessee by taking a view that despite giving opportunity, the assessee has not offered any explanation about the nature and source. No documentary evidence was furnished by assessee. The ld. CIT(A) confirmed the action of Assessing Officer in ex parte proceedings. We find that ld. CIT(A) despite recording clear finding that all the notices were returned unserved has not taken any step to serve the assessee by way of alternative modes as prescribed under Section 282 of the Act. We further find that the ld. CIT(A) has not adjudicated the grounds of appeal raised by assessee as per mandate of Section 250(6) of the Act. Section 250(6) mandates that order of ld. CIT(A) must contain facts of the case, points of determination and decision thereon and reasons of such decision. Considering the fact that ld. CIT(A) passed the ex parte order, in our view, the assessee was not offered sufficient and reasonable opportunity of hearing, therefore, the order of ld. CIT(A) is set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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