IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .No.-6595/Del/2014 (ASSESSMENT YEAR-2009-10) Atul Kumar Gupta, Vs ITO, C/o-Akhilesh Kumar, Advocate, Ward-1(1), Chamber No.206-07, ANsal Satyam , Ghaziabad RDC Raj Nagar, Ghaziabad. PAN-ACBPG9513H (APPELLANT) (RESPONDENT) Assessee by Sh. Pushkar pandey, Adv. Revenue by Sh. Deepak Garg, Sr.DR Date of Hearing 04.07.2016 Date of Pronouncement 26.09.2016 ORDER present appeal has been filed by assessee assailing correctness of order dated 25.09.2014 of CIT(A), Ghaziabad pertaining to 2009-10 assessment year on various grounds including Ground No.2 which reads as under:- 2. That, both learned lower authorities failed to provide proper opportunity of being heard in as much as Ld.AO failed to provide any opportunity after compliances made by assessee and Ld.CIT(A) failed to consider addl. Evidences by assessee even without calling any report from AO etc., hence provision of natural justice has been defeated. . 2. Ld.AR inviting attention to assessment order reproduced in impugned order submitted that AO in para 2 has made reference to fact that assessee was represented on 23.12.2011 by Sh. Pankaj Kumar, CA. However, he observes that assessee failed to comply with that information sought. Referring to Paper Book page 4 & 5 filed before CIT(A) it was submitted that infact assessee has provided complete information to AO on said date. copy of this letter filed before CIT(A) was treated by him as fresh evidence. Aggrieved by this assessee I.T.A .No.-6595/Del/2014 has also filed affidavit of Ld. AR, Sh. Pankaj Kumar affirming these facts. contents of affidavit are reproduced hereunder:- I, Pankaj Kumar, S/o Sh. Bisheshwar Dayal partner of M/s KPMC & Association, C-1, RDC, Raj Nagar, Ghaziabad do hereby solemnly declare and state on oath as under:- 1. That my aforesaid identification is correct and being auth.rep. of above assessee who appeared before Ld.AO in this matter hence is conversant with facts of above said case and is competent to swear this affidavit. 2. That, I filed various documents before Ld.AO like bank accounts, copy of cash a/c of assessee from firm etc. in support of claim of assessee and complies with queries. 3. That, assertion of Ld.AO in his order dt. 29.12.2011 that assessee has not complied with any query relating to source of deposit is wrong. 4. That due to above reasons assessee became dissatisfied with me and engaged other counsel for 1st appeal despite my assurance for co- operation. (emphasis provided) 3. Relying upon same it was submitted that dismissal of assessee s appeal by CIT(A) without even giving any reason whatsoever why addition cannot be restricted to peak deposit of both savings accounts, it was submitted is arbitrary. impugned order it was submitted may be set aside. Ld. Sr. DR placed reliance upon impugned order however submitted that assessment order passed u/s 144 and in circumstances matter may be restored to AO. Ld.AR gave his oral undertaking stating that assessee shall participate in proceedings before AO in case issues are restored back. 4. I have heard rival submissions and perused material available on record. I find that in facts of present case in interests of justice impugned order deserves to be set aside. request for addition restricted to peak credit found deposited in bank accounts if on facts had to be rejected then facts supporting conclusion should have been brought on record , prayer cannot be rejected on ground that it was not made before AO. Even otherwise, it is submitted that no fresh evidence was filed before Page 2 of 3 I.T.A .No.-6595/Del/2014 AO which claim is supported by affidavit of counsel representing assessee before AO. In face of oral undertaking of Ld.AR that assessee shall participate in set aside proceedings and prayer of Ld.Sr.DR that matter be remitted prayer of parties is accepted. impugned order is set aside and issues are restored to AO denovo with direction to pass speaking order in accordance with law after giving assessee reasonable opportunity of being heard. opportunity so provided it is hoped is used by assessee in good faith as failing which AO would be at liberty to pass speaking order in accordance with law on basis of material available on record. 5. In result, appeal of assessee is allowed for statistical purposes. order is pronounced in open court on 26 thr September, 2016. Sd/- (DIVA SINGH) JUDICIAL MEMBER Amit Kumar Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Page 3 of 3 Atul Kumar Gupta v. ITO, Ward-1(1), Ghaziabad