The The ITO, Ward-1, GANDHIDHAM V. Shri Baldania Devjibhai Bhimjibhai, Adipur-Kutch

ITA 1115/RJT/2010

• Counselvise Citation: 111524914 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-09-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 20-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KRISHNA PRABHAKAR
• Keywords: Corroborative evidences
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT ( AM) I.T.A. NO.1115/RJT/2010 (ASSESSMENT YEAR 2005-06) ITO, WD.1 VS SHRI BALDANIA DEVJIBHAI GANDHIDHAM BHIMJIBHAI, SRC GODOWN NO.7-8, ADIPUR (KUTCH) PAN : ADRPB1299G (APPELLANT) (RESPONDENT) DATE OF HEARING : 28-11-2011 DATE OF PRONOUNCEMENT : 30-11-2011 APPELLANT BY : SHRI KRISHNA PRABHAKAR RESPONDENT BY: NONE O R D E R PER T.K. SHARMA (JM) THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DA TED 20-04-2010 PASSED BY THE CIT(A)-II, RAJKOT FOR THE ASSESSMENT YEAR 20 05-06. 2. VARIOUS GROUNDS RAISED IN THIS APPEAL ARE AS UND ER: 1. THE LD.CIT(A)-II, RAJKOT HAS ERRED IN LAW AND O N FACTS OF THE CASE IN DELETING THE ADDITION OF RS.2,54,146/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCOME FROM TRADING IN BISCUITS. 2. THE LD CIT(A)-II, RAJKOT HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.10,51,240/- MAD E BY THE ASSESSING OFFICER ON ACCOUNT OF UNSECURED LOAN. 3. THE LD.CIT(A)-II, RAJKOT HAS ERRED IN LAW AND ON FACTS OF THE CASE IN RESTRICTING THE ADDITION ON ACCOUNT OF AGRI CULTURAL INCOME OF RS.1,92,249/- MADE BY THE ASSESSING OFFIC ER TO RS.1,42,249/-. ITA NO.1115/RJT/2010 2 3. IN THIS CASE, THE NOTICE OF HEARING WAS SERVED O N THE ASSESSEE THROUGH DR ON 19-11-2011 FIXING THE DATE OF HEARING TODAY I.E . 28-11-2011. DESPITE THE SERVICE OF NOTICE, NONE WAS PRESENT FROM THE SIDE O F THE ASSESSEE. WE, THEREFORE, PROCEED TO DIVIDE THIS APPEAL ON THE BAS IS OF SUBMISSION MADE BY THE LD.DR AND MATERIAL AVAILABLE ON RECORD. 4. BRIEFLY STATED, THE FACTS ARE THAT FOR THE ASSES SMENT YEAR UNDER APPEAL THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 144 ON 14-01-2007. ON APPEAL, THE LD.CIT(A) DELETED THE ADDITION OF RS.25,41,149 WHICH WAS MADE BY THE ASSESSING OFFICER IN REJECTING THE TRADING RESULTS, THE ADDITION OF RS.10,51,240 IN RESPECT OF UNSECURED LOAN AND FURTHER RESTRICTED TH E ADDITION ON ACCOUNT OF AGRICULTURAL INCOME OF RS.1,42,249. ON FURTHER APP EAL, THE TRIBUNAL SET ASIDE THE ORDER OF CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE CIT(A) TO DECIDE AFRESH, AS THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT AND THE ASSESSING OFFICER DID NOT GET OPPORTUNITY TO REPRESENT THE CASE BEFORE DE CIDING THE APPEAL. 5. AS PER THE DIRECTION OF THE TRIBUNAL, THE LD.CIT (A) GAVE NOTICE OF HEARING ON 31-12-2009 TO THE ASSESSING OFFICER VIDE LETTER DATED 17-12-2009. IN RESPONSE TO SAID NOTICE OF HEARING THE ITO, WARD-1, GANDHIDH AM FILED THE FOLLOWING REPLY TO THE LD.CIT(A): KINDLY REFER TO THE ABOVE. 2. YOUR HONOUR VIDE ABOVE LETTER DTD.17/12/2009 HAS DIRECTED TO APPEAR FOR THE HEARING IN THE ABOVE CASE ON 31/1 2/2009. 3. IN THIS CONNECTION, IT IS SUBMITTED THAT THE UND ERSIGNED IS BUSY IN ASSESSMENT PROCEEDINGS WHICH ARE GETTING BA RRED BY LIMITATION ON 31/12/2009. ITA NO.1115/RJT/2010 3 4. THEREFORE, IT IS REQUESTED THAT THE MATTER MAY B E DECIDED ON MERITS OF THE CASE. 6. AFTER CONSIDERING THE AFORESAID REPLY, THE LD.CI T(A) UPHELD THE DECISION WHICH WAS ALREADY TAKEN BY HIS EARLIER APPELLATE OR DER. THE RELEVANT PORTION OF THE DECISION OF THE LD.CIT(A) CONTAIN AT PARAGRAPH 3 WHICH READS AS UNDER: 3. THE HON.ITAT OPINED THAT THE A.O. WAS NOT GIVEN OPPORTUNITY TO REPRESENT THIS CASE BEFORE DECIDING THE APPEAL. IN FACT, WHEN AN ORIGINAL APPELLATE ORDER WAS PASSED, THE A.O. WAS GIVEN SEVERAL OPPORTUNITIES, VIDE THIS OFFICE HEARI NG NOTICE DTD. 25/11/09, 17/12/09, & 4/1/2010, BUT HE DID NOT AVAI L THE GIVEN OPPORTUNITIES. FURTHER, EVEN WHEN THE CASE WAS POS TED AS PER THE DIRECTION OF HON.ITAT, THE A.O. CHOSE NOT TO APPEAR BEFORE ME. THE REASON WHAT HE STATED MIGHT BE GENUINE. IN THA T CASE, HE COULD HAVE REQUESTED ME TO ADJOURN THE CASE TO SOME OTHER DATE. INSTEAD OF SEEKING ADJOURNMENT HE REQUESTED ME THAT THE MATTER MIGHT BE DECIDED ON MERITS OF THE CASE. THIS INDIC ATES THAT THE A.O. HAS NOTHING TO SAY IN THIS MATTER, AND THE DEC ISION WHICH WAS ALREADY TAKEN BY MY EARLIER APPELLATE ORDER (SUPRA) IS RECONFIRMED. 7. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE REV ENUE IS IN APPEAL BEFORE THE TRIBUNAL. 8. AT THE TIME OF HEARING ON BEHALF OF THE REVENUE, SHRI KRISHNA PRABHAKAR APPEARED AND POINTED OUT THAT THE LD.CIT(A) HAS ALL OWED ONLY ONE OPPORTUNITY TO THE ASSESSING OFFICER TO REBUT THE CASE OF THE REVE NUE. HE POINTED OUT THAT IN THE MONTH OF DECEMBER, THE ASSESSING OFFICER WAS BUSY I N ASSESSMENT PROCEEDINGS WHICH ARE GETTING TIME BARRED BY LIMITATION ON 31-1 2-2009. HE, THEREFORE, REQUESTED THE LD.CIT(A) TO DECIDE THE CASE ON MERIT . THE LD.DR DREW OUR ATTENTION TO PROVISION CONTAINED IN SECTION 250(6) OF THE I.T. ACT WHICH ARE MANDATORY AND AS PER SAID PROVISION IT IS OBLIGATOR Y FOR COMMISSIONER (APPEALS) TO PASS A SPEAKING ORDER STATING POINT RAISED IN AP PEAL, HIS DECISION THEREON AND ITA NO.1115/RJT/2010 4 REASON FOR SUCH DECISION. THE LD.DR ALSO DREW OUR ATTENTION TO PROVISION CONTAINED IN SUB SECTION (4) OF SECTION 250 WHICH P ROVIDES THAT BEFORE DISPOSING OF ANY APPEAL, THE CIT(A) MAY MAKE SUCH FURTHER ENQ UIRY AS HE THINKS FIT OR HE MAY DIRECT ASSESSING OFFICER TO MAKE FURTHER ENQUIR Y AND REPORT THE RESULT OF THE SAME TO HIM. IN THE PRESENT CASE, THE ASSESSING OF FICER FRAMED THE ASSESSMENT U/S 144 AS THE ASSESSEE DID NOT COMPLY WITH VARIOUS NOTICES. HE ACCORDINGLY SUGGESTED THAT THE IMPUGNED ORDER OF LD.CIT(A) BE S ET ASIDE AND HE BE DIRECTED TO PASS SPEAKING ORDER KEEPING IN VIEW THE PROVISIO NS CONTAINED IN SUB SECTION (4) AND (6) OF SECTION 250 OF THE I.T. ACT. 9. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF AUTH ORITIES BELOW AND FOUND CONSIDERABLE FORCE IN SUBMISSIONS MADE BY LD.DR. F ROM THE PERUSAL OF ASSESSMENT ORDER IT CAN BE SEEN THAT THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 144 AS IN RESPONSE TO SHOW CAUSE NOT ICE ASSESSEE FILED WRITTEN SUBMISSIONS IN PART WITHOUT ANY SUPPORTING EVIDENCE . EVEN THE BOOKS OF ACCOUNT WERE ALSO NOT PRODUCED BEFORE THE ASSESSING OFFICER . AS PER THE PROVISIONS CONTAINED IN SUB SECTIONS (4) & (6) OF SECTION 250, THE ASSESSING OFFICER WAS REQUIRED TO CONDUCT ENQUIRY AND PASS SPEAKING ORDER . THE PROVISIONS CONTAINED IN SUB SECTION (6) OF SECTION 250 ARE OBLIGATORY WH ICH PROVIDED THAT THE CIT(A) SHOULD PASS A SPEAKING ORDER STATING POINT RAISED I N APPEAL, HIS DECISION THEREON AND REASON FOR SUCH DECISIONS. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF LD.CIT(A) WITH THE DIRECTION THAT THE CIT(A) WILL D ECIDE THE APPEAL AFRESH IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY OF HEA RING TO BOTH SIDES. ITA NO.1115/RJT/2010 5 10. IN THE RESULT, FOR STATISTICAL PURPOSES, THE AP PEAL OF THE REVENUE IS TREATED AS ALLOWED. THIS ORDER HAS BEEN PRONOUNCED ON THE DATE AS MENTI ONED ABOVE. SD/- SD/- (A.L. GEHLOT) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 30 TH NOVEMBER, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-II, RAJKOT 4. THE CIT-I, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT