Bharatkumar Kundanmal Jain, Pune V. Assistant Commissioner of Income-tax, Pune

ITA 1108/PUN/2017

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9851 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-10-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 143(3); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNALPUNE BENCHES, PUNE SINGLE MEMBER CASE BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA No. 1108/PUN/2017 : A.Y. 2009-10 Bharatkumar K. Jain 678 Shukrawar Peth, Pune-411 002 PAN: ABBPJ 1471 C :Appellant Vs. The Asstt. CIT Cir.5, Pune :Respondent Appellant by : Shri M.K. Kulkarni Respondent by : Shri Piyush Kumar Singh Yadav Date of Hearing : 19-10-2022 Date of Pronouncement : 21-10-2022 ORDER This appeal preferred by the assessee emanates from order of the ld. CIT(A)-4, Pune dated 27-02-2017 for A.Y. 2009-10 as per the following grounds of appeal. 1. On the facts and in the circumstances of the case and in law the Ld. CIT(A) was not justified in dismissing the Ground of Appeal No. 1 before him claiming that the assessment completed u/s 143(3) r.w.s. 147 was barred by limitation as the same was not completed within the limitation. The consequential assessment being not sustainable in law be quashed. 2. On the facts and in the circumstances of the case and in law the Ld. CIT(A) was not justified in properly applying his mind to the facts pleaded before him that the copy of reasons recorded u/s 148(2) were not supplied to the assessee. Also assessee was not given opportunity to file the fresh Return of Income and was, therefore, deprived of submitting legal objections for the reasons recorded. The A. O.'s action was contrary to principles enunciated by Hon'ble Supreme Court. The Ld. CIT(A) ought to have quashed the assessment for want of A. 0. not following the procedure laid down by Hon'ble Supreme Court. The Ld. CIT(A) ought to have quashed the assessment which was vitiated in law. The order of the Ld. CIT(A) be set aside quashing the order of the A.O. 3. On the facts and in the circumstances of the case and in law, the ld. CIT(A) ought to have considered the argument of the assessee that the assessment order framed by the A.O was vitiated in law for want of issue of statutory and mandatory notice u/s 143(2) of the Act. In view of this the order of the ld. CIT(A) be set aside cancelling the unsustainable assessment in law. 2 ITA 1108 of 2017 Bharatkumar Jain A.Y. 2009-10 4. On the facts and in the circumstances of the case and in law the addition made by the A. O. of Rs. 20,00,000/- is illegal and without jurisdiction as there was no iota of evidence in support having received any on money nor any circumstantial evidence pointing out any receipt of on money. The assessee was even not afforded any opportunity to explain the position by the A. O. Therefore, the action of the Ld. CIT(A) in dismissing the grounds of appeal was not according to law. The Ld. CIT(A) failed to appreciate the legal position. The order of the Ld. CIT(A) be set aside also cancelling the assessment. 5. The appellant craves to leave, add/amend or alter any of the above grounds of appeal. 2. In the appeal memo ground of appeal No. 2 it is contended by the assessee that the CIT(A) has not given proper opportunity of hearing to the assessee and the principles of natural justice were not followed. In view of the matter, the ld. A.R prayed that the matter may be remanded back to the file of the ld. CIT(A) for fresh adjudication. The ld. D.R did not raise any objection if the matter was remanded back to the file of the ld. CIT(A). 3. Heard the parties herein and in reference to Ground No. 2 raised by the assessee in the grounds of appeal it is pleaded by the assessee that proper opportunity of hearing was not given to him at the first appellate level. The assessee wishes to represent his case on merits through proper hearing before the ld. CIT(A). The ld. D.R also concedes to this request of the assessee. In the interest of justice, I am of the considered view that the matter may be remanded back to the file of the CIT(A) for re-adjudication of the issue as per law and accordingly I set aside the order of the ld. CIT(A) and remand the matter back to his file for re-adjudication as per law while complying with the principles of natural justice. 3 ITA 1108 of 2017 Bharatkumar Jain A.Y. 2009-10 4. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on this 21 st October 2022. Sd/- (PARTHA SARATHI CHAUDHURY) JUDICIAL MEMBER Pune; Dated, this 21 st day of October 2022 Ankam Copy of the Order forwarded to : 1. The Appellant. 2. The Respondent. 3. The Pr. CCIT Pune . 4. The CIT(A)-4 Pune 5. The D.R. SMC Bench I.T.A.T. Pune. 6. Guard File BY ORDER, Sr. Private Secretary ITAT, Pune /// TRUE COPY /// 4 ITA 1108 of 2017 Bharatkumar Jain A.Y. 2009-10 Date 1 Draft dictated on 18-10-2022 Sr.PS 2 Draft placed before author 19-10-2022 Sr.PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on 21-10-2022 Sr.PS/PS 7 Date of uploading of order 21-10-2022 Sr.PS/PS 8 File sent to Bench Clerk 21-10-2022 Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order