Devjibhai Jogibhai Tandel, Nani Daman V. The Income tax Officer,Vapi Ward-4, Daman

ITA 1113/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1621 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Section: 147; 144

Judgement Text

IT A NO.1113/AHD/2013 A.Y . 2008 - 09 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHRI S.S. GODARA , JUDICIAL MEMBER I TA NO. 1113 /AHD /201 3 ASSESSMENT YEAR: 200 8 - 09 DEVJIBHAI JOGIBHAI TANDEL, VS. INCOME TAX OFFIC ER, EKTA APARTMENT, VAPI WARD - 4, DAMAN. SARVODAYA SOCIETY, TEN BATTI, NANI DAMAN 396 210. [PAN AARPT 2901 L ] (APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI M.K. PATEL , A.R RESPONDENT BY : S HRI ALPESH PARMAR , SR. D.R. DATE OF HEARING : 2 8 .04 . 20 16 DATE OF PRONOUNCEMENT : 03.05 .2016 O R D E R PER ANIL CHATURVEDI, A .M. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LEARNED CIT ( A ), VALSAD DATED 31.12.2012 FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE RELE VANT FACTS AS CULLED OUT F R OM THE MA TERIALS ON RECORD ARE AS UNDER : - 3. THE ASSESSEE IS AN INDIVIDUAL WHO FIL E D HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 - 09 ON 29.03.2009 DECLARING TOTAL INCOME OF RS.8 , 54 , 320/ - . THE CASE W AS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT W A S FRAMED UNDER SECTION 144 READ WITH SECTION 147 OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT ) VIDE ORDER DATE D 16.12.2011 AND THE TOTAL INCOME WAS DETERMINED AT RS.34 , 63 , 220 / - . AGGRIEVED BY THE ORDER OF THE A SSESSING OFFIC ER ASSESSEE CARRIED THE MATTER BEFORE TH E LEARNED CIT(A) WHO HAVE VI D E O RDER DAT ED IT A NO.1113/AHD/2013 A.Y . 2008 - 09 PAGE 2 OF 4 31.12.2012 IN A PPAL N O .CIT(A)/VLS/307/11 - 12 D ISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY T HE ORDER OF L EARNED C IT ( A ) THE ASSESSEE IS IN APPEAL BEFORE US AND HAS RAISE D THE FOLLOWING GROUNDS : - 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RE - OPENING THE ASSESSMENT AN D ISSUING NOTICE U/S.148 OF THE I.T. ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKIN G ADDITION OF RS.13,81,090/ - ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTI ON OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.1,96,000/ - ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSITS IN BANK ACCOUNT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME T AX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RESTRICTING ADDITION OF RS.1,57,363/ - ON ACCOUNT OF 10% DISALLOWANCE OUT OF TOTAL EXPENSE CLAIMED OF RS.15,73,630/ - . 5. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITION MAY PLEASE BE DELETED AS LEARNED MEMBERS OF THE TRIBUNAL MAY DEEM IT PROPER. 4. BEFORE US AT THE OUTSET THE L EARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE O R DER WAS PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 AND THE ORDER PAS SE D BY THE LEARNED CI T ( A ) IS ALSO AN EX - PARTE ORDER. H E SUBMITTED THAT DUE TO SOME PERSONAL DIFFICULTIES A T THE END OF THE ASSESSEE THERE WAS NO REPRESENTATION BEFORE THE A SSESSING OFFICER AND THE LEARNED CIT(A). HE , THEREFORE , SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO T HE FILE OF THE L EARNED CIT(A) . H E FURTHER ASSURED T HAT THE ASSESSEE WOULD FULLY CO - OPERATE AND FILE ALL THE DETAILS CALL E D FOR BY THE AUTHORITIES. HE , T HEREFORE , SUBMITTED THAT IN TH E INTEREST OF JUSTICE , THE MATTER MAY BE REMITTED BACK TO THE LOWER AUTH ORITIES. IT A NO.1113/AHD/2013 A.Y . 2008 - 09 PAGE 3 OF 4 5. LEARNED DEPARTMENTAL REPRESENTATIVES, ON THE OTHER HAND , OBJECTED TO THE PRAYER OF THE LEARNED AUTHORISED REPRESENTATIVE OF REMITTING THE MATTER BACK TO THE LOWER AUTHORITIES AND THE REBY G R ANTING SECOND INNING TO THE A SSESSEE. HE , THEREFORE , S UBMITTED THAT IN THE GIVEN SITUATION , ORDER OF THE ASSESSING OFFICER BE UPHELD . IN THE ALTERNATE, HE SUBMITTED T HAT IF THE MATTER IS RESTORED TO THE LOWER AUTHORITIES , COST SHOULD BE LEVIED ON THE ASSESSEE SO THAT IN FUTURE HE WILL APPEAR BEFORE THE R EVEN UE AUTHORITIES. 6. WE HAVE HEARD THE RI V AL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT C A SE WE FIND THAT THE ORDER W A S PASSED UNDER SECTION 144 READ WITH SECTION 147 OF THE ACT BY THE A SSESSING OFFICER . THE A SSESSING OFFICER IN THE ORDE R HAS QUOT E D THAT DESPITE VARIOUS NOTICES THERE W A S NO APPEARANCE ON T HE PART OF TH E ASSESSEE . FURTHER ON PERUSING ORDER OF THE LEARNED CIT ( A ) WE FIND THAT BEFORE TH E LEARNED CIT (A) ALSO THER E WAS NO REPRESENTATION FROM THE SIDE OF TH E A SSESSEE . BEFORE U S, APART FROM THE ORAL CONTENTION OF PERSONAL DIFFICULTY AT TH E END OF THE ASSESSEE, NO MATERIAL HA S BEEN PLACED ON RECORD TO JUS T I F Y ASSESSEE S ACTION OF NON - APPEARANCE BEFORE THE LOWER AUTHORITIES. WE ARE OF THE VIEW THAT THE APATHY OF THE ASSESSEE TOWA RD S THE PROCEEDINGS BEFORE THE LOWER AUTHORITIES SHOULD NOT BE ENCOURAGED. AT THE SAME TIME , ON PERUSING ORDER OF THE LEARNED CIT(A), W E FIND THAT THE LEARNED CIT(A) HAS PASSED A NON - SPEAKING ORDER . WE ARE OF THE VIEW THAT EVEN IN E X - PARTE ORDER , THE LEA RNED CIT ( A ) SHOULD HAVE DECIDED GROUNDS OF APPEAL OF THE ASSESSEE ON MERITS THEREOF. CONSIDERING TOTALITY OF THE AFORESAID FACTS AND IN VIEW OF THE UNDER TAKING BY THE LEARNED AUTHORISED REPRESENTATIVE THAT THE ASSESSEE WILL APPEA R BEFORE THE LOWER AUTHORI TIES , WE ARE OF THE VI E W THAT IN THE INTEREST OF JUSTICE , THE ASS E S SE E BE GIVEN ONE MORE OPP ORTUNITY TO PRESENT HIS CASE BEFORE TH E LEARNED CIT(A) BUT IT A NO.1113/AHD/2013 A.Y . 2008 - 09 PAGE 4 OF 4 ON L Y AF T ER PAYMENT OF COST OF RS .5,000/ - WHICH SHA L L BE DEPOSITED TOWA R DS LEGAL AID AND THE PROOF OF WHIC H WILL BE PRESENTED BEFORE THE LEARNED CIT(A). THEREAFTER, THE LEARNED CIT(A) IS DIRECTED TO DECIDE THE ISSUE ON MERITS AND IN ACCORDANCE WITH LAW AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THE ASSESSEE IS ALSO DIRECTED TO A PPEAR BEFORE THE LEARNED CIT(A) WITHIN ONE MONTH FROM PASSING OF THE ORDER AND SEEK THE DATE OF HEARING. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO THE LEARNED CIT(A), WE ARE NOT ADJUDICATING ON MERITS THE OTHER GROUNDS RAISED BY ASSESSEE . THUS, THE GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( THIS ORDER P RONOUNCED IN THE OPEN COURT TODAY ON TH E 3 RD DAY OF MAY , 201 6 . ) SD/ - SD/ - S.S. GODARA ANIL CHATURVEDI ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) AHMEDABAD, THE 3 RD D AY OF MAY , 2016 PBN/* COPIES TO: (1) THE APPELLANT ( 2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) D EPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD