Shri Abhishek L. Jain, Surat V. The Income Tax Officer, Ward-6(1), Surat

ITA 1045/AHD/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3141 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B P K
• Assessee Lawyers: RASESH SHAH
• Keywords: Unexplained cash credit; Salary income; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 142(1); 201; 143(2); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH , SURAT BEFORE SHRI AMARJIT SINGH, JM & SHRI O.P.MEENA, AM ITA NO. 1045 / AHD / 2017 ( ASSESSMENT YEAR . 2011 - 12 ) ABISHEK L. JAIN, 302, PIPLA SHERI, MAHIDHARPURA, SURAT VS. INCOME TAX OFFICER, WARD - 6(1), SURAT ROO M NO.601, 6 TH FLOOR, AAYAKAR BHAVAN, MAJURA GATE, SURAT. PAN/GIR NO. ABXPJ0344G APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI RASESH SHAH REVENUE BY SHRI B. P. K. PANDA (SR. DR) DATE OF HEARING 24 / 10/ 201 9 DATE OF PRONOUNCEMENT 27 / 1 1 / 201 9 O R D E R PER AMARJIT SINGH (J .M) : THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 30 . 09 .201 5 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) MAJURA GATE, SURAT , [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 11 - 12 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PASSING EX - PARTE ORDER WITHOUT GIVING SUFFICIENT OPPORT UNITY OF BEING HEARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT CONDONING THE DELAY OF 3 MONTHS IN FILING THE APPEAL BEFORE HIM WHEN THE ASSESSEE WAS PREVE NTED BY REASONABLE AND SUFFICIENT CAUSE FOR NOT FILING THE APPEAL IN TIME. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT ADJUDICATING GROUNDS OF APPEAL. HE O UGHT TO HAVE PASSED THE SPEAKING ORDER AFTER GIVING THE REASON FOR HIS DECISION. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING THE ADDITION OF UNSECURED LOANS OF RS.13,00,00 0/ - ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING THE ADDITION OF RS 1,50,000/ - BEING CREDITORS FOR PURCHASES AS UNEX PLAINED CASH CREDIT U/S 68 OF THE ACT. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING DISALLOWANCE OF RS 1,37,378/ - ON ACCOUNT OF INTEREST ON VAT INSTEAD OF CONSIDERING THE N ATURE OF EXPENSE BEING INTEREST COMMISSION EXPENSE. ITA NO1045 / SRT /201 7 A.Y.2011 - 12 2 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING DISALLOWANCE OF RS 2,58,018/ - BEING 20% OF FOREIGN TOUR EXPENSE. 8. ON TH E FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING DISALLOWANCE OF RS 4,15,782/ - BEING 20% OF VARIOUS EXPENSES. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJEC T, THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING THE ADDITION OF RS 1,80,000/ - ON ACCOUNT OF LOW HOUSEHOLD EXPENSES. 10. IT IS THEREFORE PRAYED THAT THE LD. CIT(A) MAY PLEASE BE DIRECTED TO ADMIT THE APPEAL CONDONING THE DELAY IN FILING THE APPEAL AND ADJUDICATE THE GROUNDS BY PASSING THE SPEAKING ORDER AFTER PROVIDING OPPORTUNITY TO THE APPELLANT. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 30.09.2011 DECLARING TOTAL INCOME TO THE TUNE OF RS.2,72,250/ - FOR THE A.Y.2011 - 12. THEREAFTER, NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF IMPORT, EXPORT AND LOCAL TRADING OF DIAMONDS IN THE NAME AND STYLE OF MANGALAM EXPORTS. THE ASSESSEE HA S ALSO SHOWED THE INCOME FROM SALARY, HOUSE PROPERTY AND INTEREST INCOME DURING THE YEAR. THE ASSESSEE HAD SHOW ED THE UNSECURED LOAN OF RS.13,00,000/ - IN THE NAME OF JHAVERI RAJEN NAVINCHAND. THE TRANSA CTION WAS NOT FOUND GENUINE, THEREFORE, THE ADDITION W AS RAISED IN SUM OF RS.13,00,000/ - IN VIEW OF THE PROVISIONS U/S 68 OF THE ACT. THE ASSESSEE ALSO SHOWED THE SUNDRY CREDITOR IN SUM OF RS.1,50,000/ - IN THE NAME OF M/S. CRAFT EXPORTER . T HE TRANSACTION WAS NOT EXPLAINED, THEREFORE, THE AO ALSO RAISED THE SA ID ADDITION U/S 68 OF THE ACT . A FTER SOME DISALLOWANCE IN CONNECTION WITH THE INTEREST AND OTHER EXPENSES, T HE TOTAL INCOME OF THE ASSESSEE WAS ASSESS ED TO THE TUNE OF RS. 27,13,430 / - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DI SMISSED THE APPEAL OF THE ASSESSEE , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE CIT(A) DID NOT CONSIDER THE DELAY O F 3 MONTHS AND 12 DAYS. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE NOWHERE RECEIVED THE COPY OF ORDER WELL - IN - TIME. THE ASSESSEE RECEIVED THE ORDER ON DATED 11.08.2014 AND THEREAFTER FILED THE APPEAL WELL WITHIN THE REASONABLE TIME ON 12.08.2014 . THE CIT(A) NOWHERE CONSIDER THE FACTS AND DISMISSED THE ITA NO1045 / SRT /201 7 A.Y.2011 - 12 3 APPEAL OF THE ASSESSEE BY NOT CONDONING THE DELAY . WE FOUND THAT THE DELAY IS WELL EXPLAINED. THE ASSESSEE FILED THE AFFIDAVIT IN SUPPORT OF HIS CONTENTION. THEREFORE, WE CONDONED THE DELAY. WE ALSO F IND THAT THE PRESENT ORDER HAS BEEN PASSED BY THE CIT(A) EXPARTE. AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW , THEREFORE, IN THE SAID CIRCUMSTANCES, THE ORDER OF THE CIT(A) IN QUESTION IS WRONG AND AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTME NT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE ORDER OF THE CIT(A) DATED 30 . 09 .201 5 , WE NOTICED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT I S AGAINST THE PRINCIPLE OF NATURAL JUSTICE. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW. THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDE R OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A ) ON ALL THE ISSUES AND RESTORE THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE IN ACCORDANCE WITH LAW. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONO UN CE D IN THE OPEN COURT ON THIS 27 /11 /2019 SD/ - SD/ - ( O. P. MEENA ) (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER / SURAT, DATED : 27 / 11 / 2019 / VIJAY PAL SINGH , SR.PS COPY OF ORDER SENT TO - ASSESSEE/ AO/PR. C IT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT