Smt Usha Ram Patole, Pune V. Income-tax Officer, Pune

ITA 1019/PUN/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7754 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 24-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK AGGARWAL
• Keywords: Unexplained expenditure
• Section: 142(1); 144

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1019/PUN/2017 / ASSESSMENT YEAR : 2011-12 SMT. USHA RAM PATOLE L/H OF RAM ATMARAM PATOLE SWAGAT CLASSIC, FLAT NO.9, 3 RD FLOOR, MODEL COLONY, SHIVAJI NAGAR, PUNE 411005. PAN : AHXPP5613J. . / APPELLANT V/S INCOME TAX OFFICER, WARD-9(3), PUNE. . / RESPONDENT ASSESSEE BY : SMT. DEEPA KHARE. REVENUE BY : SHRI VIVEK AGGARWAL. / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 3, PUNE DT.0 3.01.2017 FOR THE ASSESSMENT YEAR 2011-12. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- 2.1 ASSESSEE IS AN INDIVIDUAL WHO IS STATED TO BE ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF LANDS. ASSESSEE ELECTRON ICALLY FILED HIS RETURN OF INCOME FOR A.Y. 2011-12 ON 28.09.2011 AND DEC LARED TOTAL INCOME OF RS.12,11,126/-. NOTICES U/S 142(1) AND 143(2 ) OF THE / DATE OF HEARING : 12.07.2017 / DATE OF PRONOUNCEMENT: 09.08.2017 2 ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. AO NOT ED THAT DESPITE SERVICE OF NOTICES ON VARIOUS OCCASIONS THERE WA S NO COMPLIANCE BY THE ASSESSEE. AO THEREAFTER FRAMED ASSESS MENT U/S 144 OF THE ACT AND DETERMINED THE TOTAL INCOME AT RS.3,2 1,41,510/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A), WHO VIDE ORDER DATED 03.01.2017 (IN APPEAL NO.PN/C IT(A)- 3/WD-9(3), PN/430/2014-15) NOTED THAT NONE APPEARED BEFO RE HIM AND HE THEREFORE DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING AS UNDER : 6.3 DECISION : I HAVE PERUSED THE ASSESSMENT ORDER AS WELL AS T HE CONTENTIONS RAISED BY THE APPELLANT IN THE GROUNDS AND STATEMENT OF FACTS. IT IS SEEN THAT APPEAL IN THIS CASE WAS FILED ON 2. 6.2014 AND NOTICE U/S 250 WAS ISSUED TO THE APPELLANT ON 7.8.2015 FIXING HEARING ON 27.8.2015. THERE WAS NO RESPONSE TO THE ABOVE NOTICE, THEREFOR E, ANOTHER NOTICE DATED 5.10.2016 WAS ISSUED FOR HEARING ON 21.10.2016. TH IS NOTICE SENT BY RPAD WAS RETURNED BACK BY THE POST OFFICE WITH THE LEGEND INCOMPLETE ADDRESS. SUBSEQUENTLY, AGAIN NOTICE WAS ISSUED ON 16.11.2016 FOR HEARING ON 9.12.2016, WHICH AS PER THE RPAD ACKNOWL EDGEMENT RECEIVED BACK FROM THE POST OFFICE HAS BEEN RECEIVED HOWEVER , TILL FINALIZATION OF THIS ORDER NOBODY ATTENDED NOR ANY WRITTEN SUBMISSION WA S FILED IN RESPECT OF THE GROUNDS RAISED IN APPEAL. ALL THE NOTICES AS N ARRATED ABOVE WERE SENT BY RPAD ON THE POSTAL ADDRESS PROVIDED BY THE ASSES SEE ON FORM NO.35. IT IS THE DUTY OF THE ASSESSEE TO GIVE CORRECT ADDR ESS FOR CORRESPONDENCE AND INTIMATE THE DEPARTMENT CHANGE IN ADDRESS, IF A NY. 6.3.1 THE APPELLANT / AR HAS NOT AVAILED THE OPPORT UNITIES OF HEARING GIVEN AS NARRATED ABOVE AND HAS FAILED TO BRING ON RECORD ANY EXPLANATION/SUBMISSION CONVERTING THE ASSESSING OFF ICERS ACTION. I AM COMPELLED TO DECIDE THE MATTER ON THE MATERIAL AVAI LABLE ON RECORD. THE LAW, AS PER THE PRINCIPLE OF WELL KNOWN DICTUM VIG ILANTIBUS, NO DORMENTIBUS, JURA SUBVENIUNT, AS OBSERVED BY THE P UNE ITAT IN THE CASE OF ABHAY P. KALBHOR, PUNE VS. DCIT IN ITA NOS. 1469/PN/02 FOR THE A.YS 1989-90 TO 1999-2000 WHERE THE APPEAL FILE D BY THE ASSESSEE WAS TREATED AS UN-ADMITTED IN VIEW OF NON-ATTENDANC E OF THE PROCEEDINGS, ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SL EEP OVER THEIR RIGHTS. ACCORDINGLY, AS THE APPEAL HAD BEEN TREATED AN UN-A DMITTED, THE GROUNDS RAISED BY THE APPELLANT ARE DISMISSED. 3. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN AP PEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT EX-PARTE FOR NON ATTENDAN CE THEREBY CONFIRMING THE ADDITIONS MADE IN THE ASSESSMENT ORD ER. 3 2. THE LD CIT(A) ERRED IN LAW AND ON FACTS IN CONFI RMING THE ASSESSMENT MADE U/S 144 WHEN THERE WAS A SUFFICIENT REASON FOR NON ATTENDANCE AND CONFIRMED THE ADDITIONS WHICH ARE ARBITRARY. 3. LD CIT(A) ERRED IN LAW AND ON FACTS IN MAKING AD DITION OF RS 1,66,200/- AS INCOME FROM SELF OCCUPIED PROPERTY. 4. LD CIT(A) ERRED IN LAW AND ON FACTS IN MAKING AD DITION OF RS 15,43,988/- ON ACCOUNT OF DISALLOWANCE OF EXPENSES. 5. LD CIT(A) ERRED IN LAW AND ON FACTS IN MAKING AD DITION OF RS 1,50,38,041/- ON ACCOUNT OF TOTAL CASH DEPOSITS WIT HOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. LD CIT(A) ERRED IN LAW AND ON FACTS IN MAKING AD DITION OF RS 28,23,904/- AS UNEXPLAINED EXPENDITURE U/S 69C. 7. LD CIT(A) ERRED IN LAW AND ON FACTS IN MAKING AD DITION OF RS 2,50,000/- TOWARDS AGRICULTURE INCOME AND RS 8,246/ - TOWARDS INTEREST ON FIXED DEPOSITS WITH BANK. 8. LD CIT(A) ERRED IN LAW AND ON FACTS IN MAKING AD DITION OF RS 1,00,000/- BY DENYING THE DEDUCTION U/S 80C. 9. LD CIT(A) ERRED IN LAW AND ON FACTS IN MAKING AD DITION OF RS 1,10,00,000/- TOWARDS CAPITAL GAINS. 10. THE APPELLANT CRAVES TO ADD, ALTER, MODIFY OR SUBSTITUTE ANY GROUND OF APPEAL AT THE TIME OF HEARING. 4. BEFORE US, LD.A.R. SUBMITTED THAT DURING THE COURSE O F ASSESSMENT PROCEEDINGS THE ASSESSEE WAS SUFFERING FROM K IDNEY FAILURE AND HIS HEALTH WAS VERY CRITICAL AND THEREFORE COU LD NOT APPEAR BEFORE LOWER AUTHORITIES. SHE FURTHER SUBMITTED T HAT THE ASSESSEE SHRI RAM ATMARAM PATOLE DIED ON 20.01.2017 AND THE PRESENT APPEAL HAS BEEN FILED BY HIS WIFE, USHA PATOLE. IT IS THEREFORE PRAYED THAT ONE MORE OPPORTUNITY BE GRANTED TO ASSES SEE TO PLEAD THE CASE AND IT WAS FURTHER SUBMITTED IF THE MATTER IS REMITTE D BACK, THE ASSESSEE WILL CO-OPERATE BY FURNISHING THE REQUIRED DETAILS. LD.D.R. DID NOT SERIOUSLY OBJECT TO THE PRAYER OF LD.A.R. FOR RESTORING THE ISSU E BACK TO THE LOWER AUTHORITIES. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ASSESSMENT WAS FRAMED U/S 4 144 OF THE ACT AND BEFORE CIT(A) ALSO THERE WAS NO APPEA RANCE FROM THE SIDE OF ASSESSEE. IT IS ALSO A FACT THAT LD.CIT(A) HAS SUMMARILY DISMISSED THE APPEAL OF ASSESSEE. IT IS ALSO A FACT THAT T HE PRESENT APPEAL HAS BEEN FILED BY THE LEGAL HEIR OF THE ASSESSEE. BEFORE US, IT IS THE SUBMISSION OF LEGAL HEIR OF THE ASSESSEE THAT THE ASSE SSEE WAS SUFFERING FROM KIDNEY AILMENT AND THEREFORE THERE WAS NO A PPEARANCE ON HIS BEHALF AND IN SUPPORT OF WHICH AN AFFIDAVIT OF THE LEGAL HEIR HAS ALSO BEEN FILED. THE SUBMISSION OF THE LEGAL HEIR OF THE ASS ESSEE HAS NOT BEEN CONTROVERTED BY THE REVENUE. CONSIDERING THE TOTALITY OF THE AFORESAID FACTS AND IN THE INTERESTS OF JUSTICE, WE ARE OF THE VIEW THAT ASSESSEE DESERVES ONE MORE OPPORTUNITY TO PLEAD THE C ASE. WE THEREFORE WITHOUT ADJUDICATING ON THE MERITS OF THE CASE RESTORE THE ISSUE BACK TO THE AO, TO CONSIDER THE SUBMISSIONS OF ASSESSEE AND RE- ADJUDICATE THE ISSUES AFTER CONSIDERING THE CONTENTIONS O F ASSESSEE AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT AO SH ALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. ASSESS EE IS ALSO DIRECTED TO COOPERATE BY PROMPTLY FURNISHING ALL THE REQ UIRED DETAILS CALLED FOR BY THE AUTHORITIES. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 9 TH DAY OF AUGUST, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 9 TH AUGUST, 2017. YAMINI 5 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. 6. CIT(A)-3, PUNE. PRL.CIT-5, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $+,-/ GUARD FILE. / BY ORDER // TRUE COPY // ./0%1&2 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.