Shri Madhukar S.Kejriwal, Ahmedabad V. The Income tax Officer,Ward-7(2), Ahmedabad

ITA 1114/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1121 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ADITYA SHUKLA SR D R
• Keywords: Principle of natural justice; Corroborative evidences
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , ITA. NO.1114/AHD/2013 (ASSESSMENT YEAR:2008-09) SHRI MADHUKAR S KEJRIWAL 18, KADAMB BUNGLOWS, VASTRAPUR, AHMEDABAD APPELLANT VS. ITO, WARD 7(2), AHMEDABAD RESPOND ENT PAN: AFHPK2424C /BY APPELLANT : SHRI TUSHAR HEMANI, A.R. /BY RESPONDENT :SHRI ADITYA SHUKLA, SR. D.R. ! '# /DATE OF HEARING : 13.07.2016 ! '# /DATE OF PRONOUNCEMENT : 14.07.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-III, AHMEDABAD , DATED 25.03.2013 FOR A.Y. 2008-09 ON FOLLOWING GROUNDS. 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS O F THE CASE IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION U/S. 68 IN RESPECT OF UNEXPLAINED CASH DEPOSIT OF RS.15,93,700/- WHEN NO SUCH ADDITION ITA NO.1114/AHD/13 A.Y. 08-09[SHRI MADHUKAR S KEJRIWAL VS. ITO] PAGE 2 CAN BE MADE. THE LD. CIT(A) HAS FAILED TO APPRECIAT E THAT THE APPELLANT HAD DULY DISCHARGED ONUS OF PROO F TO EXPLAIN THE CREDITS/RECEIPTS BY SUBMITTING SUPPORTIVE CORROBORATIVE EVIDENCES AND HENCE ADDITIONS U/S. 68 MADE IN THE CASE OF THE APPELLANT IS NOT JUSTIFY. 2. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDER S WITHOUT PROPERLY APPRECIATING THE FACT AND THAT THE Y FURTHER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF THE LOWER AUTHORITIE S IS IN CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FAC TS OF THE CASE IN CONFIRMING THE ACTION OF LD. AO IN CHARGING INTEREST U/S. 234A,B,C OF THE ACT. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACT S OF THE CASE IN CONFIRMING THE ACTION OF LD. AO IN INITIATING PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. 2. MAIN GRIEVANCE OF ASSESSEE IS AGAINST EX PARTE O RDER. ASSESSEE SUBMITTED THAT HE HAS FILED ALL THE DETAIL S BEFORE THE AUTHORITIES BELOW. HE WAS PREVENTED TO APPEAR ON O NE DATE, SO, EX PARTE ORDER WAS PASSED. THUS, LEARNED AUTHORIZE D REPRESENTATIVE POINTED OUT THAT ASSESSEE WAS NOT PR OVIDED PROPER OPPORTUNITY OF HEARING BEFORE PASSING EX PAR TE ORDER. SO, HE REQUESTED TO SET ASIDE THE ORDER OF CIT(A). ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 2.1 AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATER IAL ON RECORD, WE FIND THAT OPPORTUNITY OF HEARING IS THE ESSENCE OF ITA NO.1114/AHD/13 A.Y. 08-09[SHRI MADHUKAR S KEJRIWAL VS. ITO] PAGE 3 PRINCIPLE OF NATURAL JUSTICE, WHICH HAS NOT BEEN AP PLIED IN THIS CASE. SO, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF CIT(A) DATED 25.03.2013 AND RESTORE THE MATTER TO A SSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO ASSES SEE. SINCE WE ARE RESTORING ISSUE TO CIT(A) ON PRELIMINARY STA GE, WE ARE REFRAINING OURSELVES TO COMMENT ON MERIT ON ISSUE A T HAND. AT THE SAME TIME, WE CANNOT ENCOURAGE THE APATHY TOWAR DS THE PROCEEDINGS BEFORE LOWER AUTHORITIES. SO, IN THE I NTEREST OF JUSTICE THIS APPEAL IS RESTORED TO ASSESSING OFFICE R SUBJECT TO PAYMENT OF COST OF RS.5000/- TO BE PAID IN THE LEGA L AID OF THE HONBLE HIGH COURT. 3. AS A RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 14 TH DAY OF JULY, 2016. SD/- (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER AHMEDABAD: DATED 14/07/2016 TRUE COPY S.K.SINHA ! / COPY OF ORDER FORWARDED TO:- () * / REVENUE 2) / ASSESSEE -)./.01! 2! / CONCERNED CIT 4) 2!- / CIT (A) 5)67 8!019 '019: / / DR, ITAT, AHMEDABAD ;)8 <=> ? / GUARD FILE. BY ORDER / 9 /: .* '019: /