2015 (10) TMI 1615 - AT - Income Tax

Unexplained Credit u/s. 68 - whether CIT(A) has erred in passing the exparte order against the principles of natural justice without affording the proper opportunity of being heard to the assesssee? - Held that - As on 26.11.2012 the date on which the final opportunity was given by the Ld. CIT(A), a letter has been received from the assessee through speed post stating that their counsel Mr. Sunil Bhansali was down with viral fever and hence one month s time was requested, which the Ld. CIT(A) has not considered and proceeded exparte qua assessee. Keeping in view of the above facts and circumstances of the case, we are of the considered opinion, that Ld. CIT(A) has not given sufficient opportunity to the assesee and proceeded exparte qua assessee, which is contrary to the principles of natural justice. Therefore, the impugned order is not sustainable in the eyes of law. In the interest of justice, we set aside the issue in dispute to the file of the Ld. CIT(A) with the direction to decide the same afresh, under the law, after providing sufficient opportunity to the assessee. Assessee is also directed to cooperate with the Ld. CIT(A) and not to take unnecessary adjournment. - Decided in favour of assessee for statistical purposes.

Issues:
1. Ex-parte order against principles of natural justice.
2. Addition of unexplained credit under section 68 of the I.T. Act, 1961.
3. Failure to provide adequate opportunity for hearing to the appellant.

Analysis:

Issue 1: Ex-parte order against principles of natural justice
The appellant challenged the order of the Ld. CIT(A) on the grounds that it was passed ex-parte against the principles of natural justice without affording proper opportunity to be heard. The appellant's counsel was unable to attend the hearings due to health reasons, leading to repeated adjournments. The Ld. CIT(A) proceeded ex-parte despite the appellant's request for a one-month extension due to the counsel's illness. The Tribunal found that the Ld. CIT(A) did not provide sufficient opportunity to the appellant and proceeded contrary to the principles of natural justice. Consequently, the impugned order was deemed unsustainable, and the issue was remanded to the Ld. CIT(A) for a fresh decision with adequate opportunity for the appellant to present their case.

Issue 2: Addition of unexplained credit under section 68 of the I.T. Act, 1961
The AO had made an addition of &8377; 60,00,000 as unexplained credit under section 68 of the I.T. Act, 1961, in the assessment order. The appellant failed to provide details regarding the advance received against properties from specific entities despite opportunities and requests for verification. The appellant did not attend the final hearing, leading to an ex-parte assessment where the AO confirmed the unexplained credit. The Tribunal noted that the appellant did not submit any written arguments or fresh facts during the appeal proceedings, failing to prove the genuineness of the transaction. As a result, the addition was upheld due to the appellant's failure to provide necessary details and confirmations.

Issue 3: Failure to provide adequate opportunity for hearing to the appellant
The Tribunal observed that the appellant had not availed the opportunities given during the appeal proceedings, with repeated requests for adjournments citing the counsel's illness. The Ld. CIT(A) proceeded to decide the appeal ex-parte on merits, citing established legal principles. The Tribunal emphasized the appellant's right to be heard and the importance of actively pursuing one's rights under the law. The failure of the appellant to furnish necessary details and attend hearings led to the confirmation of the addition of unexplained credit. However, the Tribunal set aside the order due to the lack of sufficient opportunity provided to the appellant, directing a fresh decision with adequate hearing opportunities.

In conclusion, the Tribunal allowed the appeal for statistical purposes, setting aside the impugned order and remanding the issue to the Ld. CIT(A) for a fresh decision with proper opportunity for the appellant to present their case.

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