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TMI Blog2021 (5) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... order is passed without hearing the assessee. Accordingly the additional ground of appeal raised by the assessee is allowed. Appeal of the assessee allowed for statistical purpose. - I.T.A No.699/AHD/2016 - - - Dated:- 15-10-2020 - Shri Pawan Singh, Hon'ble Judicial Member And Shri Arjun Lal Saini, Hon'ble Accountant Member For the Assessee : Shri P.M. Jagasheth CA For the Revenue : Smt. Anupama Singla Sr.DR ORDER PER PAWAN SINGH, JM: 1. This appeal by the assessee is directed against the order of Ld. Commissioner of Income Tax(Appeals)-1 [ CIT(A) ], Surat dated 26.02.2016, which in turn arises from the assessment order dated 31.03.2009 passed under section 144 r.w.s 147 of Income-tax Act (Act) for assessment year 2009-10. 2. Grounds raised by the Assessee read as under: 1. On the circumstances of the case as well as law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the assessing officer in reopening the assessment u/s.147 of the I.T. Act, 1961 and issuing notice u/s.148 of the Income Tax Act, 1961. 2. On the facts in the circumstances of the case as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded that the assessee not responded to such notice as well. Ultimately, the AO vide show cause notice dated 18.02.2013, proposing various additions was served upon the assessee. The notice was served by affixation at the address on 1012, Rohit A/C Market, Ring Road, Surat and on D/41, 202, Akshar Township, Puna Kumbhariya Road, Surat. The AO recorded that even after service of notice by affixation, the assessee not responded. The AO completed the assessment under section 144 read with section 147 of the Act. The AO noted that DRI carried out searches at the premises of assessee on 28.11.2008, during such search, various incriminating records, documents were recovered. From the incriminating material, it was noticed that assessee sent consignment with the intention to export misdeclared goods, which was put on hold. The assessee declared value of ₹ 3,13,61,422/- against the actual value of ₹ 43,68,000/- as ascertained by Expert Committee of DRI. On the basis of such observation, the AO took his view that an amount of ₹ 43,68,000/- was invested by assessee, which remained undisclosed to the department, by not filing the Return of Income. During this said se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that vide application dated 14.10.2020, the assessee has raised additional ground of appeal. The additional grounds of appeal relates to not granting adequate opportunity to the assessee and passing ex-parte and non-speaking order by the ld. CIT(A). The ld.AR of the assessee further submits that additional grounds of appeal is purely legal in nature and does not require to bring additional fact on record. The fact for adjudicating the additional grounds emanates from the order of ld. CIT(A). In support of his submissions, the ld.AR relied upon the decision of decision of Hon'ble Supreme Court in National Thermal Power Corporation Ltd Vs CIT (1998) 229 ITR 383 SC. 7. On merit, the ld.AR of the assessee submits that DRI carried out a search at the premises of assessee on 28.11.2008. Consequent upon search a statement of assessee and his Brother-in-law namely Rajiv K.Tulsiyan was recorded. Copy of statement of assessee and Shri Rajiv K.Tulsiyan is filed on record. In the statement, the assessee as well as his Brother-in-law stated before the team of DRI that affairs of business of assessee was managed by Shri Rajiv K.Tulsiyan. On the basis of alleged incriminating materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her-in-law Shri Rajiv K.Tulsiyan, on similar set of facts, wherein the Tribunal restored the similar appeals to the file of the AO. The ld.Sr.DR submits that Bench may take call in accordance with Law. 10. We have considered the rival submissions of both the parties and perused the record of Lower Authorities. We have also perused the various documents filed by the assessee including the statements of assessee and Rajiv K. Tusiyan recorded by DRI. We have also deliberated on various case law relied by ld AR for the assessee. As recorded above the assessee has raised additional ground of appeal vide application dated 14.10.2020. In the additional grounds of appeal the assessee has raised grounds that the ld CIT(A) passed ex-party order and that no sufficient opportunity was granted to the assessee before passing the order. We have noted that the additional ground of appeal raised by the assessee is purely legal in nature. No additional facts are required to be brought on record for adjudication of additional grounds of appeal, the facts for considering the additional grounds are emanating from the record of lower authority. Thus, considering the ratio of decision of Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, disclosure of evidence to party, report of enquiry to be shown to the other party and reasoned decisions or speaking orders are must. We find the guidance for right of hearing, as is laid down by the Hon'ble Supreme Court in the case of Maneka Gandhi v. Union of India, wherein Hon'ble Supreme Court has held that rule of fair hearing is necessary before passing any order. We find that it is pre-decision hearing standard of norm of rule of audi alteram partem. We find that in this instant case, the assessee was not given proper hearing. We also observe that the CIT(A) has not admitted additional evidences filed under Rule 46A of I.T.Rules for the assessment year 2008-09 and 2009-10. Therefore, on the basis of finding as given by in appeal for assessment year 2007-08 in ITA no.700/Ahd/2016, the additional evidences and directed to be admitted under Rule 29 of ITAT Rules. The AO is directed to consider same in fresh assessment proceedings and allow evidences to be adduced by the assessee as may be needed. Therefore, we are of the view that the assessee must be given one more opportunity of hearing and to represent his case. Therefore, in exercise of power conferred under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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