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2015 (1) TMI 784 - AT - Income TaxEnhancement of income - applying higher rate of profit at 12% - assessee complaint of not giving proper and sufficient opportunity of being heard - Held that - As is clearly evident from the averments made by assessee in his affidavit, Ld. CIT(A) has passed the impugned order enhancing the income of the assessee without giving proper and sufficient opportunity of being heard to the assessee and this position is not disputed even by learned D.R. In our opinion, the impugned order passed by Ld. CIT(A) enhancing the income of the assessee, thus, is in violation of the principles of natural justice. Accordingly, we set aside the same and remit the matter back to him to dispose of the appeal of the assessee afresh, after giving the assessee a proper and sufficient opportunity of being heard. - Decided in favour of assessee for statistical purposes.
Issues Involved:
1. Enhancement of income by applying a higher rate of profit at 12%. 2. Confirmation of addition made by A.O. on account of unexplained cash credits. 3. Procedural fairness and opportunity of being heard. Issue-wise Detailed Analysis: 1. Enhancement of Income by Applying Higher Rate of Profit at 12%: The assessee, a civil contractor, filed a return declaring a total income of Rs. 87,56,980. The A.O. assessed the total income at Rs. 1,95,91,220, which included various additions. The Ld. CIT(A) enhanced the income by applying a 12% profit rate on the business turnover, citing the unreliability of the assessee's books of account. The Ld. CIT(A) noted that the books were not reliable, and profits needed to be estimated. Despite the assessee's request to estimate profits at 8%, the Ld. CIT(A) found no basis for this rate and instead applied a 12% rate, referencing judicial decisions supporting such estimations in similar cases. The Ld. CIT(A) directed the A.O. to compute profits at 12% of the gross business receipts, denying separate depreciation deductions as per ITAT precedents. 2. Confirmation of Addition Made by A.O. on Account of Unexplained Cash Credits: The A.O. had added Rs. 83,36,000 as unexplained cash credits under Section 68, which the Ld. CIT(A) confirmed. The Ld. CIT(A) observed that the assessee failed to establish the identity, creditworthiness, and genuineness of the creditors for the unexplained credits. Despite some confirmations, the remaining credits were deemed unexplained. The Ld. CIT(A) held that unexplained cash credits could be assessed as income, even when business income is estimated, referencing Supreme Court rulings. The unexplained cash credits were treated as undisclosed income, leading to the conclusion that the addition of Rs. 83,36,000 was justified. 3. Procedural Fairness and Opportunity of Being Heard: The assessee argued that the Ld. CIT(A) enhanced the income without providing a proper and sufficient opportunity to be heard. The assessee's affidavit detailed an instance where the counsel was prepared to attend a hearing, but the Ld. CIT(A) was away on official training. Despite this, the Ld. CIT(A) concluded that there was no attendance or objection from the assessee, which was contrary to the facts. The Tribunal acknowledged this procedural lapse, noting that the enhancement order violated principles of natural justice. Consequently, the Tribunal set aside the Ld. CIT(A)'s order and remitted the matter back for fresh disposal after giving the assessee a proper hearing. Conclusion: The Tribunal found that the Ld. CIT(A) enhanced the assessee's income without adequate opportunity for the assessee to present objections, violating natural justice principles. The Tribunal set aside the enhancement order and remitted the case back to the Ld. CIT(A) for a fresh hearing, ensuring the assessee's right to be heard is upheld. The appeal was allowed for statistical purposes, emphasizing the need for procedural fairness in tax assessments.
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