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TMI Blog2022 (9) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... afresh and in accordance with law. Needless to direct that before passing the order, the ld. CIT(A) shall grant reasonable opportunity of hearing to the assessee. Appeal of assessee is allowed for statistical purposes. - ITA No. 242 And 215/Srt/2021 - - - Dated:- 12-9-2022 - Shri Pawan Singh, Judicial Member And Dr. Arjun Lal Saini, Accountant Member For the Assessee : Shri Hiren Vepari, CA For the Department : Shri Vinod Kumar, Sr.DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by the assessee are directed against the separate orders of the learned Commissioner of Income Tax (Appeals)-3, Surat (in short, the ld. CIT(A)/ National Faceless Appeal Centre (NFAC) dated 13/07/2018 and 28/09/2021 for the Assessment year (AY) 2009-10. 2. In ITA No. 242/Srt/2021, the assessee has challenged the addition in quantum assessment, however, in ITA No. 215/Srt/2021, the assessee has challenged the validity of penalty levied under Section 271(1)(c) of the Income Tax Act, 1961 (in short, the Act). 3. Perusal of record shows that impugned order was passed by ld. CIT(A) on 13/07/2018, however, this appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the assessee and that the said order was obtained by assessee by applying certified copy vide application dated 01/11/2021. The assessee has filed his affidavit and the copy of application filed before the ld. CIT(A)-3, Surat for seeking certified copy. On considering the submission of ld. AR of the assessee, we find merit in his submission that impugned order may not have received to the assessee as all the notices sent by ld. CIT(A) were returned back unserved. Therefore, keeping in view the fact that when technical consideration and cause of substantial justice are pitted against each other, the cause of substantial justice must prevail. We further find that the assessee will not get any benefit in filing appeal belatedly, rather there is chance that the cause of delay explained may not be accepted by appellate authority. Therefore, considering the totality of facts and circumstances of case, the delay in filing appeal in ITA No. 242/Srt/2021 is condoned. 7. In ITA No. 242/Srt/2021, the assessee has raised following grounds of appeal: (I) Ex-parte order: (1) With the appellant not receiving any of the notices for hearing of appeal, the appeal may kindl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Assessing officer, he issued show cause notice as to why the total credit of Rs. 38,49,316/- should not be treated as unexplained and undisclosed income. The contents of show cause notice is scanned by the Assessing Officer in para 4 of assessment order. The Assessing Officer recorded that in response to said show cause notice, the assessee filed reply on 11/11/2016 and filed copy of return of income filed on 10/11/2016. The assessee also filed reply vide reply dated 11/11/2016. The contents of reply are scanned in para 5 of assessment order. In the reply, the assessee submitted that he is an uneducated person and working as an assistant in tailoring firm. On the cash deposit, the assessee submitted that he is from Bihar and large number of persons from his area is settled in Surat. The assessee assisted by collecting money from then and sending to Bihar to their respective family. The assessee further submitted that all the letters/notices issued to him was handed over by him to a tax consultant Mr. Zakirbhai who informed him that he is contesting all the notices on his behalf. On receipt of last notice, he contracted Shri N.I. Shukla, tax consultant to take care of his case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or would have exercised his power to serve the assessee by alternative mode as prescribed in Section 282 of the Act. The ld. CIT(A) dismissed the appeal of assessee without discussing the merit of the case. The order of ld. CIT(A) is not as per the mandate of Section 250(6) of the Act. The ld. AR for the assessee submits that the assessee has good case on merit and is liable to succeed if fair and reasonable opportunity of hearing is given to the assessee. The assessee has not received a reasonable and sufficient opportunity at the time of assessment or at the time of first appellate authority. The ld. AR submits that he undertakes on behalf of assesse that the assessee would be vigilant in future and will not make default in attending the hearing before the lower authorities. The ld. AR submits that one more opportunity may be given to the assessee to explain the case before the ld. CIT(A). 12. On the other hand, the ld. Sr.DR for the revenue supported the order of ld. CIT(A). The ld. Sr.DR submits that the assessee was given ample opportunity to represent his case by issuing notice at the given address. The assessee has not even appeared before Assessing Officer. The Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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