Leena Rahul Tupe, Pune V. Dy.CIT, Cent. Cir. 2(3), Pune

ITA 1103/PUN/2012

• Counselvise Citation: 110324514 RSA 2012
• Duration Of Justice: 2 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 28-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Unexplained cash credit; Gift; Business income; Depreciation; Opportunity of being heard; Source of fund
• Section: 69C; 143(3); 68; 132; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NOS. 1092 TO 1098/PN/2012 ASSESSMENT YEARS 2001-02 TO 2007-08 RAHUL RAMDAS TUPE, 94/2, TUKARAM NAGAR, MANJARI BUDRUK, TAL. HAVELI, PUNE-412 307 PAN NO.ABRPT6515D .. APPELLANT VS. CIT(A) CENTRAL, PUNE .. RESPONDENT ITA NOS. 1101 TO 1103/PN/2012 ASSESSMENT YEARS 2004-05, 2006-07 & 2007-08 LEENA RAHUL TUPE, 94/2, TUKARAM NAGAR, MANJARI BUDRUK, TAL. HAVELI, PUNE-412 307 PAN NO.ADIPT7765J .. APPELLANT VS. CIT(A) CENTRAL, PUNE .. RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI A.K. MODI DATE OF HEARING : 05-03-2015 DATE OF PRONOUNCEMENT : 18-03-2015 ORDER PER SUSHMA CHOWLA, JM : OUT OF THIS BUNCH OF 10 APPEALS 7 APPEALS RELATE TO RAHUL RAMDAS TUPE IN ITA NOS. 1092 TO 1098/PN/2012 AGAINST SEPARATE ORDERS OF CIT(A) DATED 23-02-2012 RELAT ING TO ASSESSMENT YEARS 2001-02 TO 2007-08 AGAINST THE ORDE R PASSED UNDER SECTION 143(3) READ WITH SECTION153A OF THE ACT. 2 FURTHER, THE ASSESSEE LEENA R. TUPE HAD FILED APPEALS AGA INST THE SEPARATE ORDERS OF CIT(A) DATED 23-03-2012 RELATING TO ASSESSMENT YEARS 2004-05, 2006-07 AND 2007-08 AGAINST THE ORDER PASSED UNDER SECTION143(3) READ WITH SECTION153A OF THE ACT. 2. ALL THE APPEALS RELATING TO CONNECTED ASSESSEE ON SIM ILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE IN THE RESPECTIVE ASSESSMENT YEARS HAS RAISED MODIFIED GROUNDS OF APPEAL WHICH APPEAL-WISE READ AS UNDER. 4. THE ASSESSEE IN ITA NO.1092/PN/2012 RELATING TO ASSESSMENT YEAR 2001-02 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND O N FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT PROV IDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION AMOUNTING TO RS.2,05,000 /- U/S.68 OF I.T. ACT, 1961 MADE BY THE LEARNED AO, WI THOUT APPRECIATING THE FACT THAT THE SAME WAS OUT OF EXPL AINED SOURCES. 3. THE ASSESSEE CRAVES LEAD TO ADD/MODIFY/DELETE AL L OR ANY OF THE GROUNDS OF APPEAL. 5. THE ASSESSEE IN ITA NO.1093/PN/2012 RELATING TO ASSESSMENT YEAR 2002-03 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LEARNED CIT(A) - CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WIT HOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 3 2. THE LEARNED CIT(A)- CENTRAL CIRCLE ERRED IN LA W AND ON FACTS IN CONFIRMING THE ADDITION AMOUNTING RS.1,46, 425/- (RS. 351,425 - 2,05,000) U/S. 68 OF ITA 1961 MADE B Y THE LEARNED AO, WITHOUT APPRECIATING THE FACT THAT THE SAME WAS OUT OF EXPLAINED SOURCES. 3. THE LEARNED CIT(A)-CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS. 1,50,000/- U/S 68 OF THE ITA, 1961 REGARDING BALANCE UNEXPLAINED CREDIT IN T HE NAME OF MR. AMAR TUPE WITHOUT APPRECIATING THAT NO INCRI MINATING MATERIAL EXISTED FOR THE SAME. THE I-T AUTHORITIES OUGHT HAVE APPRECIATED THAT THE TRANSACTION WITH MR. AMAR TUPE WAS DULY RECORDED IN THE BOOKS OF ACCOUNT PRIOR TO SEAR CH U/S 132 OF THE ITA, 1961. 4. THE LEARNED CIT(A)-CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF AGRICULTURAL INCOME OF RS.1,22,000 TO THE TAXABLE INCOME OF THE APPELLANT WITHOUT APPRECIATING THAT THE NO INCRIMINATING MATERIAL EXI STED WITH THE AO TO DISBELIEVE THE EXISTENCE OF AGRICULTURAL INCOME. 5. THE ASSESSEE CRAVES LEAVE TO ADD / MODIFY / DE LETE ALL OR ANY OF THE GROUNDS OF APPEAL 6. THE ASSESSEE IN ITA NO.1094/PN/2012 RELATING TO ASSESSMENT YEAR 2003-04 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LEARNED C1T(A) - CENTRAL CIRCLE ERRED IN L AW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WIT HOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. THE LEARNED CIT(A)-CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS.2,65,000/- U/S. 68 OF THE ITA, 1961 REGARDING UNEXPLAINED CREDIT IN THE NAME OF MR. PRASHANT TUPE ON THE BASIS OF INCOMPLETE TALLY BACK UP FOUND DURING THE COURSE OF SEARCH WITHOUT APPRECIATING FA CT THAT THE SAID TALLY BACK WAS INCOMPLETE IN NATURE. THE LEARN ED AO OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE'S BOOKS OF ACCOUNTS WERE DULY AUDITED AND RETURN WAS FILED PRI OR TO SEARCH PROCEEDINGS U/S 132 OF ITA, 1961. THE LEARNE D CIT(A) ALSO FAILED TO APPRECIATE THAT THE BOOKS OF ACCOUNT S OF ASSESSEE HAS NOT BEEN REJECTED BY LEARNED AO. 3. THE LEARNED CIT(A)-CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS.33,06,290/- TO T HE BUSINESS INCOME OF THE ASSESSEE WITHOUT APPRECIATIN G THE FACT THAT THE TRANSACTIONS REFLECTING IN THE TALLY BACK UP FOUND WAS INCOMPLETE & VAGUE IN NATURE. THE I-T AUTHORITI ES OUGHT TO HAVE APPRECIATED THAT THE BOOKS OF ACCOUNTS OF T HE ASSESSEE WERE AUDITED AND RETURN OF INCOME ALSO FIL ED PRIOR TO SEARCH PROCEEDINGS U/S 132 OF ITA, 1961. THE LEARNE D CIT(A) ALSO FAILED TO APPRECIATE THAT THE BOOKS OF ACCOUNT S OF ASSESSEE HAS NOT BEEN REJECTED BY LEARNED AO. 4 4. THE LEARNED CIT(A)-CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF AGRICULTURAL INCOME OF RS. 122,000 TO THE TAXABLE INCOME OF THE APPELLANT WITH OUT APPRECIATING THAT THE NO INCRIMINATING MATERIAL EXI STED WITH THE AO TO DISBELIEVE THE EXISTENCE OF AGRICULTURAL INCOME. 5. ALTERNATIVELY AND WITHOUT PREJUDICE, THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE S COPE OF TELESCOPING OF VARIOUS FINDINGS BEFORE CONCLUDING T HE FINAL AMOUNT OF ADDITION OF UNDISCLOSED INCOME. 6. THE ASSESSEE CRAVES LEAVE TO ADD/MODIFY/DELETE A LL OR ANY OF THE GROUNDS OF APPEAL. 7. THE ASSESSEE IN ITA NO.1095/PN/2012 RELATING TO ASSESSMENT YEAR 2004-05 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LEARNED CIT(A) - CENTRAL CIRCLE ERRED IN L AW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WIT HOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. THE LEARNED CIT(A)- CENTRAL CIRCLE ERRED IN LA W AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF INTEREST AM OUNTING RS. 3,06,945/- WITHOUT CONSIDERING THE AVAILABILITY OF THE OWN FUNDS OF THE APPELLANT AND THAT NO BORROWED FUNDS W ERE USED FOR THE SAID LOAN. THE LEARNED I-T AUTHORITIES FURT HER ERRED IN LAW AND ON FACTS IN MAKING / SUSTAINING THE ADDITIO N OF RS.3,06,945/- THOUGH NO INCRIMINATING MATERIAL TO T HAT EFFECT WAS SEIZED DURING THE COURSE OF SEARCH. 3. THE LEARNED CIT(A)- CENTRAL CIRCLE ERRED IN LA W AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF CAR EXPENDI TURE AMOUNTING RS. 10,000/- AND DEPRECIATION ON CAR AMOU NTING RS. 19,345/- ON AD-HOC BASIS CONSIDERING THEM AS PE RSONAL IN NATURE. THE LEARNED I-T AUTHORITIES OUGHT TO HAV E APPRECIATED THAT NO INCRIMINATING MATERIAL OF ANY N ATURE WAS SEIZED IN THIS REGARD. 4. ALTERNATIVELY AND WITHOUT PREJUDICE, THE LEARNE D CIT(A) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE S COPE OF TELESCOPING OF VARIOUS FINDINGS BEFORE CONCLUDING T HE FINAL AMOUNT OF ADDITION OF UNDISCLOSED INCOME. 5. THE ASSESSEE CRAVES LEAVE TO ADD / MODIFY / DEL ETE ALL OR ANY OF THE GROUNDS OF APPEAL. 8. THE ASSESSEE IN ITA NO.1096/PN/2012 RELATING TO ASSESSMENT YEAR 2005-06 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LEARNED CIT(A) - CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WIT HOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 5 2. THE LEARNED CIT(A)- CENTRAL CIRCLE ERRED IN LA W AND ON FACTS IN CONFIRMING THE ADDITION OF RS.6,45,800 (OUT OF ALLEGED BANK DEPOSITS OFRS.7.50.000/-) U/S 68 OF ITA 1961 M ADE BY THE LEARNED AO ON ACCOUNT OF CASH DEPOSITS IN BANK OF MAHARASHTRA SAVING ACCOUNT, WITHOUT APPRECIATING TH E FACT THAT THE APPELLANT WAS IN POSSESSION OF SUFFICIENT CASH IN BOOKS OF ACCOUNT. THE LEARNED AUTHORITIES OUGHT TO HAVE APPRECIATED THAT MERE NON-RECORDING OF THE BANK ACC OUNT IN THE BOOKS OF ACCOUNT DOES NOT ALTER THE POSITION, A S SOURCE OF FUNDS IS RECORDED IN THE BOOKS OF ACCOUNT AS WELL A S THE END APPLICATION. 3. THE LEARNED CIT(A)-CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS. 10,00,000/- U/S 68 OF THE ITA, 1961 REGARDING UNEXPLAINED CREDIT IN THE NAME OF MR. PRASHANT TUPE ON THE BASIS OF INCOMPLETE TALLY BACK UP FOUND DURING THE COURSE OF SEARCH WITHOUT APPRECIATING TH AT SAID TALLY BACK UP WAS INCOMPLETE AND VAGUE. THE I-T AUT HORITIES OUGHT TO HAVE APPRECIATED THAT THE BOOKS OF ACCOUNT S OF THE ASSESSEE WERE AUDITED AND RETURN OF INCOME WAS FILE D PRIOR TO SEARCH PRIOR TO SEARCH U/S 132 OF THE ITA, 1961. TH E LEARNED CIT(A) ALSO FAILED TO APPRECIATE THAT THE BOOKS OF ACCOUNTS OF ASSESSEE HAS NOT BEEN REJECTED BY LEARNED AO. 4. THE LEARNED CIT(A)- CENTRAL CIRCLE ERRED IN LA W AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF INTEREST AM OUNTING RS. 5,82,268/- WITHOUT CONSIDERING THE AVAILABILITY OF THE OWN FUNDS OF THE APPELLANT AND THAT NO BORROWED FUN DS WERE USED FOR THE SAID LOAN. THE LEARNED I-T AUTHORITIES FURTHER ERRED IN LAW AND ON FACTS IN MAKING /SUSTAINING THE ADDITION OF RS.5,82,268/- THOUGH NO INCRIMINATING MATERIAL T O THAT EFFECT WAS SEIZED DURING THE COURSE OF SEARCH. 5. THE LEARNED CIT(A)- CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF CAR EXPENDI TURE AMOUNTING RS. 12,500/- AND DEPRECIATION ON CAR AMOU NTING RS. 15,476/- ON AD-HOC BASIS CONSIDERING THEM AS PE RSONAL IN NATURE. THE LEARNED I-T AUTHORITIES OUGHT TO HAV E APPRECIATED THAT NO INCRIMINATING MATERIAL OF ANY N ATURE WAS SEIZED IN THIS REGARD. 6. ALTERNATIVELY AND WITHOUT PREJUDICE, THE LEARN ED CIT(A) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE S COPE OF TELESCOPING OF VARIOUS FINDINGS BEFORE CONCLUDING T HE FINAL AMOUNT OF ADDITION OF UNDISCLOSED INCOME. 7. THE ASSESSEE CRAVES LEAVE TO ADD / MODIFY / DE LETE ALL OR ANY OF THE GROUNDS OF APPEAL. 9. THE ASSESSEE IN ITA NO.1097/PN/2012 RELATING TO ASSESSMENT YEAR 2006-07 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 6 1. THE LEARNED CIT(A) - CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WIT HOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. THE LEARNED CIT(A)-CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS.13,51,384/- U/S 68 OF THE ITA, 1961 REGARDING UNEXPLAINED CREDIT IN THE NAME OF MR . PRASHANT TUPE ON THE BASIS OF INCOMPLETE TALLY BACK UP FOUND DURING THE COURSE OF SEARCH WITHOUT APPRECIATING THAT SAID TAL LY BACK UP WAS INCOMPLETE AND VAGUE. THE I-T AUTHORITIES OUGHT TO HAVE APPRECIATED THAT THE BOOKS OF ACCOUNTS OF THE ASSES SEE WERE AUDITED AND RETURN OF INCOME WAS FILED PRIOR TO SEA RCH PRIOR TO SEARCH U/S 132 OF THE ITA, 1961. THE LEARNED CIT(A) ALSO FAILED TO APPRECIATE THAT THE BOOKS OF ACCOUNTS OF ASSESSE E HAS NOT BEEN REJECTED BY LEARNED AO. 3. THE LEARNED CIT(A)- CENTRAL CIRCLE ERRED IN LA W AND ON FACTS IN CONFIRMING THE ADDITION U/S 69C OF ITA 196 1 ON FOLLOWING GROUNDS : 4. THE LEARNED CIT(A)- CENTRAL -CIRCLE ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF INTEREST AMOUNTIN G RS.7,50,000/- WITHOUT CONSIDERING THE AVAILABILITY OF THE OWN FUNDS OF THE APPELLANT AND THAT NO BORROWED FUNDS W ERE USED FOR THE SAID LOAN. FURTHER, THE LEARNED I-T AUTHORI TIES ERRED IN LAW AND ON FACTS IN MAKING/ SUSTAINING THE ADDITION DESPITE THE FACT THAT NO ANY INCRIMINATING MATERIAL EXISTED REGARDING THE SAID ADDITION. 5. THE LEARNED CIT(A)- CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF CAR EXPENDITURE A MOUNTING RS. 30,000/- AND DEPRECIATION ON CAR AMOUNTING RS.9 ,285/- ON AD-HOC BASIS CONSIDERING THEM AS PERSONAL IN NAT URE. FURTHER, THE LEARNED I-T AUTHORITIES ERRED IN LAW A ND ON FACTS AMOUNT GROUNDS ON WHICH ADDITIONS MADE 14,50,000/- ONLY ON THE BASIS MATERIAL FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO TRANSACTION WITH MR. PINJAN WITHOUT APPRECIATING THE FACT THAT THE SAID TRANSACTION WIT H MR. PINJAN DID NOT MATERIALIZED. 16,00,000/- ONLY ON THE BASIS NOTING OF ACCOUNTANT WITH RESPECT TO TRANSACTION WITH HOUSABAI NARAYANBAI TUPE WITHOUT APPRECIATING FACT THAT THE ACCOUNTANT'S ERROR IN RE CORDING THE COST OF PURCHASE OF LAND. FURTHER, THE LEARNED AO OUGHT HAVE APPRECIATED THAT THE NOTING OF OTHER LAN DS MENTIONED IN SAME NOTING WERE DULY REFLECTED IN THE BOOKS OF ACCOUNTS AND ACCEPTED BY THE AO. 1,69,000/- ON THE BASIS OF MATERIAL FOUND DURING COURSE OF SEA RCH REGARDING PAYMENT OF COMMISSION TO PARTIES WITHOUT APPRECIATING THE FACT THE ASSESSEE HAS NOT ACTED UP ON THE ACCOMMODATION BILLS AND HENCE, THE SAME COMMISSION PAYMENT HAS NOT BEEN MADE 3,12,129/- ON THE BASIS OF MATERIAL FOUND DURING COURSE OF SEA RCH REGARDING PAYMENT MADE TO LAND OWNERS AND NOT RECOR DED IN BOOKS OF ACCOUNTS 7 IN MAKING/SUSTAINING THE ADDITION DESPITE THE FACT THAT NO ANY INCRIMINATING MATERIAL EXISTED REGARDING THE SAID A DDITION. 6. ALTERNATIVELY AND WITHOUT PREJUDICE, THE LEAR NED CIT(A) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE S COPE OF TELESCOPING OF VARIOUS FINDINGS BEFORE CONCLUDING T HE FINAL AMOUNT OF ADDITION OF UNDISCLOSED INCOME. 7. THE ASSESSEE CRAVES LEAVE TO ADD/MODIFY/ DELE TE ALL OR ANY OF THE GROUNDS OF APPEAL. 10. THE ASSESSEE IN ITA NO.1098/PN/2012 RELATING TO ASSESSMENT YEAR 2007-08 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND O N FACTS IN CONFIRMING THE ADDITION MADE BY LEARNED AO AND ASSESSED INCOME OF THE APPELLANT FOR RS.59,18,480/- AS AGAIN ST THE RETURNED INCOME OF RS.28,18,480/-. 2. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND ON FA CTS IN MAKING AD-HOC GP ADDITION AMOUNTING TO RS.50,000 /- ONLY ON THE BASIS OF LAST YEAR PROFITABILITY. 3. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION AMOUNTING RS.30,50,000/- U/S.69-C OF I.T. ACT, 1961 ONLY ON THE BASIS OF MAT ERIAL FOUND DURING THE COURSE OF SURVEY OPERATIONS. 4. THE ASSESSEE CRAVES LEAVE TO ADD/MODIFY/DELETE A LL OR ANY OF THE GROUNDS OF APPEAL. 11. THE ASSESSEE IN ITA NO.1101/PN/2012 RELATING TO ASSESSMENT YEAR 2004-05 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND O N FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT P ROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION AMOUNTING TO RS.6,00,000 /- U/S.68 OF I.T. ACT, 1961 WITHOUT APPRECIATING THE F ACT THAT SAID AMOUNT IS RECEIVED AS GIFTS FROM THE ASSESSEE S FATHER AND BROTHER. 3. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND O N FACTS IN MAKING THE ADDITION OF RS.6,00,000/- WITHOUT APP RECIATING THAT NO ANY INCRIMINATING MATERIAL WAS SEIZED REGAR DING THE SAID ADDITION. 8 4. THE ASSESSEE CRAVES LEAVE TO ADD/MODIFY/DELETE A LL OR ANY OF THE GROUNDS OF APPEAL. 12. THE ASSESSEE IN ITA NO.1102/PN/2012 RELATING TO ASSESSMENT YEAR 2006-07 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND O N FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT P ROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND ON FA CTS IN MAKING GP ADDITION AMOUNTING RS.50,000/- ONLY ON THE BASIS OF LAST YEAR PROFITABILITY. 3. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION AMOUNTING RS.4,72,000/- U/S.68 OF I.T. ACT, 1961 ONLY ON THE BASIS OF MATERIAL IMP OUNDED U/S.132 OF I.T. ACT, 1961. 4. THE ASSESSEE CRAVES LEAVE TO ADD/MODIFY/DELETE A LL OR ANY OF THE GROUNDS OF APPEAL. 13. THE ASSESSEE IN ITA NO.1103/PN/2012 RELATING TO ASSESSMENT YEAR 2007-08 HAS RAISED THE FOLLOWING MODIFIED GROUNDS OF APPEAL : 1. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND O N FACTS IN CONFIRMING THE ADDITION MADE BY LEARNED AO AND ASSESSED INCOME OF THE APPELLANT FOR RS.59,18,480/- AS AGAIN ST THE RETURNED INCOME OF RS.28,18,480/-. 2. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND ON FA CTS IN MAKING AD-HOC GP ADDITION AMOUNTING RS.50,000/- ONLY ON THE BASIS OF LAST YEAR PROFITABILITY. 3. THE LD.CIT(A) CENTRAL CIRCLE ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION AMOUNTING RS.30,50,000/- U/S.69-C OF I.T. ACT, 1961 ONLY ON THE BASIS OF MAT ERIAL FOUND DURING THE COURSE OF SURVEY OPERATIONS. 4. THE ASSESSEE CRAVES LEAVE TO ADD/MODIFY/DELETE A LL OR ANY OF THE GROUNDS OF APPEAL. 14. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE A T THE OUTSET POINTED OUT THAT THE PRELIMINARY ISSUE RAISED IN THE CAPTIONED APPEALS IS AGAINST THE EXPARTE ORDER PASSED B Y THE 9 CIT(A), WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. THE CIT(A) HAD DISMISSED THE APPEALS OF THE ASSESSEE IN THE RESPECTIVE YEARS AND UPHELD THE ADDITION S MADE BY THE ASSESSING OFFICER. 15. THE FIRST GRIEVANCE RAISED BY THE ASSESSEE IN THE AP PEALS WAS AGAINST SUCH EXPARTE ORDER PASSED BY THE CIT(A). 16. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT DESPITE SEVERAL OPPORTUNITIES BEING GIVEN , THE ASSESSEE FAILED TO APPEAR BEFORE THE CIT(A) AND BECAUSE O F THE NON-COMPLIANCE TO THE NOTICES OF HEARING, THE ISSUE WAS DECIDED ON MERITS BY THE CIT(A). ANOTHER SUBMISSION MADE BY THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WAS THAT AS AGAINST THE ORIGINAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE AGAINST THE EXPARTE ORDER PASSED BY THE CIT (A), AND SECONDLY AGAINST VARIOUS ADDITIONS MADE IN THE HANDS OF T HE ASSESSEE IN THE RESPECTIVE ASSESSMENT YEARS, THE ASSES SEE ON ITS OWN MOTION HAS FILED MODIFIED GROUNDS OF APPEAL AND CERTAIN ADDITIONS MADE BY THE ASSESSING OFFICER HAVE NOT B EEN CHALLENGED IN SUCH MODIFIED GROUNDS OF APPEAL FILED BY THE ASSESSEE. 17. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE IN REJOINDER ACCEPTED THE PLEA RAISED BY THE LD. DEPARTMEN TAL REPRESENTATIVE FOR THE REVENUE, VIS-A-VIS THE MODIFIED GRO UNDS OF APPEAL FILED BY THE ASSESSEE IN THE YEARS, UNDER WHICH CERTAIN ADDITIONS MADE BY THE ASSESSING OFFICER HAVE NOT B EEN CHALLENGED BEFORE US. HOWEVER, THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THE ISSU E BE SET- ASIDE TO THE FILE OF THE CIT(A) IN ORDER TO ADJUDICATE THE IS SUE 10 ON MERITS AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARIN G TO THE ASSESSEE AND ALSO CONSIDERING THE EVIDENCES TO B E FILED BY THE ASSESSEE IN THIS REGARD. 18. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE FIRST GROUND OF APPEAL RAISED BY THE ASSESSEE IN ALL THE CAPTIONED APPEALS IS AGAINST THE DISMISSAL OF APPEAL BY THE CIT(A) WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE DUR ING THE COURSE OF HEARING HAS FURNISHED DATE-WISE EVENTS CHART WHICH READS AS UNDER : DATE EVENT 21/12/2006 SEARCH 31/12/2008 ORDER U/S 153AR.W.S. 143(3) 30/01/2009 APPEAL FILED BEFORE LEARNED CIT(A) 31/07/2009 JURISDICTION SHIFTED FROM CIT(A) - II TO CIT(A) - IV 22/12/2009 APPEAL FIXED FOR HEARING 22/12/2009 ADJOURNMENT FILED 12/03/2010 NEXT DATE OF HEARING 12/03/2010 ADJOURNMENT FILED 19/03/2010 HEARING SCHEDULED 07/10/2010 HEARING SCHEDULED 10/02/2012 LETTER FIXING FINAL HEARING ON 21/2/2012 ISSUED 18/02/2012 LETTER DATED 10/2/2012 RECEIVED THE APPELLANT'S PEON 19/02/2012 SUNDAY 20/02/2012 APPELLANT WENT OUT TO NAS1K FOR RELIGIOUS ATTENDANCE 21/02/2012 APPELLANT RETURNED TO PUNE IN THE EVENING, AND LEAR NT ABOUT HEARING 23/02/2012 CIT(A) DECIDED THE APPEALS 24/02/2012 AR WENT TO CIT(A) OFFICE AND FILED ADJOURNMENT 24/02/2012 AFFIDAVIT MADE ON LEARNING THAT APPEALS STAND DECID ED 19. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE APPEAL WAS FIXED FOR HEARING FOR THE FIRST TIME ON 22-12-2009. HOWEVER, BECAUSE OF THE CHANGE IN T HE INCUMBENT IN THE OFFICE OF THE CIT(A) THE APPEAL WAS TAKEN UP FOR HEARING FROM 10-02-2012, UNDER WHICH A LETTER WAS ISS UED TO THE ASSESSEE FIXING THE HEARING ON 21-02-2012. THE SAID LETTER WAS RECEIVED IN THE OFFICE OF THE ASSESSEE ON 18-02 -2012, 11 I.E. SATURDAY OF THE MONTH. ON 20-02-2012 THE ASSESSEE HAD TO PROCEED TO NASHIK FOR SOME RELIGIOUS ATTENDANCE AND O N 21- 02-2012 WHEN HE RETURNED TO PUNE IN THE EVENING, HE LEA RNT ABOUT THE HEARING FIXED IN THE CASES. THE CIT(A) DECIDED THE APPEALS ON 23-02-2012. ALTHOUGH THE AUTHORISED REPRESENTATIVE FOR THE ASSESSEE WENT TO THE OFFICE OF CI T(A) ON 24-02-2012 AND FILED ADJOURNMENT APPLICATION ALONG WITH AFFIDAVIT BUT THE APPEALS WERE ALREADY DECIDED BY THE CIT(A ) ON 23-02-2012 AND THE ADDITIONS MADE IN THE HANDS OF THE ASSESSEE WERE UPHELD OBSERVING THAT THE AO HAD MADE DETAILED ANALYSIS OF THE ISSUE. 20. THE GRIEVANCE OF THE ASSESSEE BEFORE US IS THAT THE AFORESAID APPEALS HAVE BEEN DECIDED WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE 21. UNDER THE PROVISIONS OF SECTION 250 OF THE INCOME TAX ACT, IT IS INCUMBENT UPON THE CIT(A) TO FIX THE DATE AND PLACE FOR HEARING OF THE APPEAL AND TO GIVE NOTICE OF THE SAME TO THE ASSESSEE AND TO THE ASSESSING OFFICER AGAINST WHOSE ORDE R APPEAL WAS PREFERRED. SUB-SECTION 3 TO SECTION 250 OF TH E ACT ALSO GIVES POWER TO THE CIT(A) TO ADJOURN THE HEARING OF THE APPEAL FROM TIME TO TIME. UNDER SUB-SECTION 4 OF THE SAID SECTION, THE CIT(A) CAN MAKE ANY ENQUIRY AS HE THINKS FIT OR MAY DIRECT THE AO TO MAKE ANY SUCH ENQUIRY AND REPORT THE RESULT TO HIM, BEFORE DISPOSING OF ANY APPEAL. THE CIT(A) AT THE TIME OF HEARING OF APPEAL ALLOW THE ASSESSEE TO GO INTO ANY GROUND OF APPEAL NOT MENTIONED IN THE GROUNDS OF APPEAL, IF HE IS SATISFIED THAT THE OMISSION OF THAT GROUND FROM THE FORM OF APPEAL WAS NOT WILFUL OR UNREASONABLE PROVIDED UNDER SUB- 12 SECTION 5 TO SECTION 250 OF THE ACT AND FURTHER UNDER S UB- SECTION 6 IT IS PROVIDED THAT THE ORDER OF THE CIT DISPO SING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS F OR DETERMINATION AND THE DECISION THEREON AND THE REASON FO R THE DECISION. FURTHER, ON DISPOSAL OF THE APPEAL, THE ORDER HAS TO BE COMMUNICATED TO THE ASSESSEE AND TO THE PRINCIPAL CH IEF COMMISSIONER OR THE CHIEF COMMISSIONER AS THE CASE MAY BE. 22. IN VIEW OF THE PROCEDURE LAID DOWN IN SECTION 250 OF TH E ACT, IT IS INCUMBENT UPON THE CIT(A) TO FIX THE DATE AND P LACE OF HEARING OF APPEAL. UNDER THE PRINCIPLES OF NATURAL JUSTIC E, IT IS PROVIDED THAT NO PERSON SHALL BE CONDEMNED UNHEARD A ND EVEN UNDER THE PROVISIONS OF SECTION 250(2) OF THE ACT, THAT THE APPELLANT EITHER IN PERSON ALONG WITH THE AUTHORISED REPRESENTATIVE SHALL HAVE THE RIGHT TO BE HEARD AT THE HEARING OF THE APPEAL. AS THE RIGHT TO BE HEARD IS THE BASIC RIGH T CONFERRED UPON AN ASSESSEE IN APPEAL BEFORE THE CIT(A) AN D SUCH RIGHT CANNOT BE BRUSHED ASIDE BY SERVING A NOTICE AND THEREAFTER NOT PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND DISPOSING OF THE APPEAL EXPARTE THE AS SESSEE. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CAS E, WE ARE OF THE VIEW THAT IN THE PRESENT SET OF APPEALS THE B ASIC RIGHT OF HEARING TO BE PROVIDED TO THE ASSESSEE HAS NOT BEEN PROVIDED TO THE ASSESSEE AND IN THE INTEREST OF JUSTICE , WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A) TO ALLOW REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. HOWEVER, IN VIEW OF THE ASSESSEE HAVING FILED MODIFIED GROUND S OF APPEAL BEFORE US UNDER WHICH THE ASSESSEE HAS CHALLENG ED ONLY FEW OF THE ADDITIONS IN THE RESPECTIVE YEARS AS AGA INST SEVERAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE THE 13 CIT(A) IN THE FIRST INSTANCE AND IN VIEW OF THE ADMISSION OF TH E LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE IN THIS RE GARD, WE DIRECT THE CIT(A) ONLY TO ADJUDICATE THE GROUNDS OF A PPEAL RAISED BY THE ASSESSEE VIDE MODIFIED GROUNDS OF APPEAL, WH ICH WE HAVE REPRODUCED IN THE PARAS HEREIN ABOVE. ACCORDIN GLY, THE MATTER IS SET-ASIDE TO THE FILE OF THE CIT(A) WITH THE S AID DIRECTIONS. 23. IN VIEW OF OUR SETTING ASIDE THE ISSUE BACK TO THE FILE OF THE CIT(A), WE ARE NOT ADJUDICATING THE ISSUE ON MERITS. GROUNDS OF APPEAL NO.1 RAISED BY THE ASSESSEE IN ALL THE APPEALS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 24. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 18 TH DAY OF MARCH, 2015. SD/- SD/- (R.K. PANDA) (SUSHMA C HOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER SATISH PUNE, DATED 18 TH MARCH, 2015 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A) CENTRAL, PUNE 4. THE CIT CENTRAL, PUNE 5. THE DR B BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, PUNE