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TMI Blog2012 (12) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... - From the order of CIT(A), it is evident that assessee could not produce evidences of such stock of silver and in support of the excess stock found at the time of survey. After considering all aspect of the matter, we feel in the interest of justice, this issue be restored back to the file of CIT(A) for fresh adjudication - ground of assessee’s appeal is allowed for statistical purposes. Dismissal of appeal for A.Y.1995-96 on the ground of delay in filing appeal - assessee contesting the same on ground that appeal was dismissed ex parte – Held that:- CIT(A) dismissed the appeal only on the ground of delay but CIT(A) has not given any decision on merit of the case. After considering all aspects of the mater, in the interest of justice, this appeal is restored back to the file of CIT(A) to decide afresh. Since the quantum appeal has been restored back to the file of CIT(A), hence, appeal contesting penalty u/s 271(1)(c) is also remitted back to the file of CIT(A) for fresh decision - ITA No.1022,1330 & 1023/Ahd/2009 - - - Dated:- 20-7-2012 - Shri, A.K.Garodia and Shri Kul Bharat, JJ. By Appellant Shri Sakar Sharma, AR By Respondent Shri Rahul Kumar, SR-DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide the matter afresh on all issues after providing reasonable opportunity of hearing to the assessee. Accordingly, in view of the direction of Hon ble ITAT Ahmedabad, several notices u/s. 142(1) were issued i.e. on 12-01-2007, 08-06-2007, 02-07-2007, 18-07-2007 and 17-08-2007 and assessee was asked to furnish material evidence in this regard. But the assessee did not submit any reply or any sub missions in response thereto of the above notices. It was brought to notice of assessee that Assessing Officer proposed to pass ex parte order u/s. 144 r.w.s. 254 of the Act restoring all the additions made as per original order u/s 144 dated 09-12-1998. But the assessee did not respond. Again AO issued notice u/s. 142(1) dated 17-08-2007 but the assessee did not comply with the said notice. IT is presumed that assessee has no objection if order u/s 144 is passed as intimated to assessee. As the assessee did not make any submission and did not respond to the notices of the Revenue, the assessee was completed u/s. 144 r.w.s. 254 of the Act determining income as under:- i) Income from trading silver and gold ornament and labour work receipt Rs.2,50,000 ii) Income from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.35,000/- is thus sustained. Ground No.4 is rejected. From the above, we find no infirmity into the order passed by Ld. CIT(A) and this ground of assessee s appeal is rejected. 7. Next ground is with regard to alleged unaccounted cash found at the time of survey. 8. The Ld. AR submitted that cash was found during the survey proceedings in the form of cash. It was not found that cash was invested in the stocks. On the contrary, Ld. DR strongly supported the orders of authorities below. 9. We have heard the rival submissions and perused the materials available on record. We find that Ld. CIT(A) has decided this issue in para-8.1 to 8.3 of his which, which is reproduced hereinbelow:- 8.1 At the time of survey conducted on 16-05-1995, unaccounted cash of Rs.1,10,240/- was found from the premises of assessee. In reply to question no. 17 recorded at the time of survey, the assessee had admitted that no cash book was written and the cash of Rs.1,10,240/- was inclusive of cash from unaccounted business in silver and gold ornaments etc. The Assessing Officer added Rs.1,10,240/- u/s. 69A of the Act. The learned CIT(A) had also confirmed the addition under this head. In set-asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of survey, the appellant had not been informed of alleged excess stock of 102.886 kgs and the appellant was only asked to explain the silver weighing 10.820 kgs and other silver ornaments including bullion weighing 157.000 kgs found on the date of survey and that further the AO had not provided the details of working of such excess stock. It is thus, stated that the addition is not justified. 9.3 I have carefully considered the facts of the case, the submissions of the appellant. AT the time of survey, in response to question No.18, it was stated by the appellant that the exact figure of the stock could not be provided as the current year books were not written. Moreover, at the time of assessment proceedings, no details or books of account were produced. Before the CIT(A), in the first round, the stock was explained as under: Sale 34,8 kg Opening stock 76.3 kg Closing stock 156.97 kg Purchases 131.2 kg Reserve 4.1 kg 191.7 kg 191.7 kg However, no details or evidences such as bills, sale bills and the details of closing stock as on 16.05.95 could be produced. Accordingly, the excess stock as indicated by the AO in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same. 14. A survey action was conducted at assessee s shop during the A.Y. 1995-96 u/s. 144 of the Income-tax Act, 1961 (hereinafter referred to as the Act ) passed on 24-02-2006 by Assessing Officer. Against this order, assessee filed appeal after delay of 14 months and 17 days i.e., 443 days before Ld. CIT(A), who considering the explanation explained by the assessee dismissed the appeal of assessee on the basis of delay in filing of appeal. 15. Now, being aggrieved by this order of Ld. CIT(A) assessee preferred second appeal before us. 16. Ld. Authorized Representative of the assessee submitted that the assessee has been passing through a lot of personal problems and his wife was also sick during that period, for which he could not file appeal in time. Ld. AR further submitted that order of Ld. CIT(A) may be reversed and allow the appeal of assessee. 17. On the other hand, Ld. DR of the Revenue submitted that order passed by Ld. CIT(A) is justified and stated that assessee himself was negligent not to pursue of his case. 18. We have heard the rival submissions and perused the materials available on record. We find that Ld. CIT(A) dismissed the appeal only on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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