Shri Ashutosh Pankajbhai Desai, Valsad V. The Income tax Officer,Ward-1, Valsad

ITA 122/AHD/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1947 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 12-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SOURYAWANSI
• Assessee Lawyers: R N VEPARI
• Section: 11

Judgement Text

ITA NO.122-123-1 44/AHD/2009 ASSESSMENT YEAR 2004-05, 2005-06 1 IN THE INCOME_TAX APPELLATE TRIBUNAL D BENCH,AH MEDABAD BEFORE SHRI G.D. AGARWA,V.P. & SHRI MUKUL KR. SHRAWAT. I .T.A. NO. 122 /AHD/2009 (ASSESSMENT YEARS: 2004-05) SHRI ASHUTOSH PANKAJBHAI DESAI, 6A, SHIVKRUPA, GITANJALI SOCIETY, VALSAD. (APPELLANT) VS. THE INCOME TAX OFFICER, WARD 1, SURYAPRAKASH CHAMBERS, NEXT TO CONVENT SCHOOL, DHARAMPUR ROAD, VALSAD. (RESPONDENT) I .T.A. NO. 123 /AHD/2009 (ASSESSMENT YEAR: 2005-06) SHRI ASHUTOSH PANKAJBHAI DESAI, 6A, SHIVKRUPA, GITANJALI SOCIETY, VALSAD. (APPELLANT) VS. THE INCOME TAX OFFICER, WARD 1, SURYAPRAKASH CHAMBERS, NEXT TO CONVENT SCHOOL, DHARAMPUR ROAD, VALSAD. (RESPONDENT) I .T.A. NO. 144/AHD/2009 (ASSESSMENT YEAR: 2005-06) THE INCOME TAX OFFICER, WARD 1, SURYAPRAKASH CHAMBERS, NEXT TO CONVENT SCHOOL, DHARAMPUR ROAD, VALSAD. (APPELLANT) VS. SHRI ASHUTOSH PANKAJBHAI DESAI, 6A, SHIVKRUPA, GITANJALI SOCIETY, VALSAD. (RESPONDENT) PAN: AGZPD 0912 B APPELLANT BY : SHRI R. N.VEPARI. RESPONDENT BY : SHRI G.S. SOURYAWANSI, SR. D.R. ITA NO.122-123-1 44/AHD/2009 ASSESSMENT YEAR 2004-05, 2005-06 2 ( (( ( )/ )/)/ )/ ORDER PER: SHRI MUKUL KUMAR SHRAWAT, J.M. FOR ASSESSMENT YEAR 2005-06 BOTH REVENUE AS WELL A S THE ASSESSEE ARE IN CROSS APPEALS ARISING FROM THE ORDER OF LD. COMM ISSIONER OF INCOME TAX (APPEALS)-VALSAD DATED 30-10-2008. HOWEVER, FOR ASS ESSMENT YEAR 2004-05 ONLY THE ASSESSEE IS IN APPEAL AND THAT ORDER OF TH E LD. C.I.T.(A) VALSAD WAS ALSO DATED 30-10-2008. FOR BOTH THE YEARS THE APPELLANT HAS RAISED IDENTIC AL GROUND ABOUT THE INADEQUACY OF OPPORTUNITY OF HEARI NG BY ASSESSING OFFICER , FOR REFERENCE REPRODUCED BELOW :- 1. THE APPELLANT SUBMITS THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS REQUIRED TO BE SET ASIDE AS HE HAS NOT CONSIDERED THE SUBMISSIONS AND EVIDENCE MADE BEFORE HIM IN THE COURSE OF APPELLATE PROCEEDINGS. 2. THE APPELLANT FURTHER SUBMITS THAT AS THE TIME G IVEN BY THE ASSESSING OFFICER WAS SHORT, THE ASSESSEE WAS SHORT , THE ASSESSEE WAS PREVENTED FROM FURNISHING THE NECESSARY DETAILS AND EVIDENCE BEFORE THE ASSESSING OFFICER AND, THEREFORE, SUCH D ETAILS AND EVIDENCE COULD BE PRODUCED FOR THE FIRST TIME BEFOR E THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND IN THE CIR CUMSTANCES THIS OUGHT TO HAVE BEEN CONSIDERED UNDER RULE 46A O F THE INCOME TAX RULES, 1962. 2. THE APPELLANT HAS EARNED SALARY AND INTEREST INC OME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS FOUND THAT THE ASSESS EE HAD AN ACCOUNT WITH INDUSIND BANK LTD., VALSAD. ON THE BASIS OF AN INFO RMATION RECEIVED FROM THE BANK IT WAS FOUND THAT CERTAIN CREDIT ENTRIES WERE RECORDED AGGREGATING TO RS.7,91,604/- FOR ASXSESSMENT YEAR 2004-05 AND RS.4 8,07,460/- FOR ASSESSMENT YEAR 2005-06. FOR BOTH THE YEARS THE ASSESSEE WAS S ERVED WITH THE NOTICES OF HEARING. IT WAS POINTED OUT BY LD. AUTHORIZED REPRE SENTATIVE SHRI R.N. VEPARI THAT NOTICE U/S. 143(2) WAS ISSUED AND SERVED ON 16 -11-2007 AND ON THAT VERY DAY HE WAS REQUIRED TO ATTEND THE OFFICE. HE HAS FU RTHER POINTED OUT THAT DUE TO ITA NO.122-123-1 44/AHD/2009 ASSESSMENT YEAR 2004-05, 2005-06 3 CHANGE OF THE ASSESSING OFFICER, THE NOTICE IN THE PAST COULD NOT BE SERVED PROPERLY ON THE ASSESSEE. THE ASSESSMENT WAS ALSO A BOUT TO GOT BARRED BY LIMITATION ON 31-12-2007. HOWEVER, THE CORRECT NOTI CE WAS SERVED ON NOVEMBER, 2007; THEREFORE, THERE WAS HARDLY ANY TIME FOR THE PROPER COMPLIANCE. THE LD. AUTHORIZED REPRESENTATIVE MR. R.N. VEPARI HAS ALSO MENTIONED THAT THE ASSESSEE BEING AN EMPLOYEE OF MODI FINANCE SERVICES , THEREFORE, DURING THAT PERIOD HE REMAINED ENGAGED IN OFFICE WORK THEREFORE SOUGHT TIME FOR PROPER COMPLIANCE. 2.1. WHEN THE MATTER HAD REACHED BEFORE THE LD. C.I .T.(A), ASSESSEE TRIED TO FURNISH THE REQUISITE INFORMATION AND EVIDENCES BUT THE SAME WERE NOT ENTERTAINED. THE LD. C.I.T. (A) HAS EXPRESSED THAT IT WAS NOT POSSIBLE FOR HIM TO CONSIDER THE EVIDENCE WHICH WERE NOT FILED BEFORE T HE ASSESSING OFFICER. IT IS PLEADED BEFORE US THAT HAD PROPER OPPORTUNITY BE GR ANTED, THE ASSESSEE DEFINITELY WOULD BE IN A POSITION TO EXPLAIN HIS CA SE PROPERLY. 3. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES A ND CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES OF THE CASE, ESPECIAL LY AS POINTED OUT BY LD. AUTHORIZED REPRESENTATIVE THAT THE ASSESSMENT PROCE EDINGS HAVE IN FACT STARTED IN THE MONTH OF NOVEMBER, 2007, AND THE SHOW CAUSE NOTICE WAS ALSO ISSUED GRANTING DATE OF HEARING ON 21-12-2007, HOWEVER, TH E ASSESSMENT WAS GETTING BARRED BY LIMITATION ON 31-12-2007, THEREFORE, THE ASSESSING OFFICER HAD PASSED THE ORDER IN A HURRIED MANNER WITHOUT GRANTING ADEQ UATE OPPORTUNITY AND SUFFICIENT TIME TO THE ASSESSEE. IT HAS ALSO BEEN N OTED THAT WHEN THE MATTER HAD GONE IN APPEAL, THE ASSESSEE HAD FURNISHED CERTAIN FRESH EVIDENCES TO EXPLAIN HIS CASE BUT IT WAS TURNED DOWN ON THE PRETEXT THAT NO FRESH EVIDENCE COULD BE FILED IN THE FIRST APPEAL, ONCE THEY WERE NOT FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WE DO NOT AGREE WITH THE SAID VIEW OF LD. C.I.T. (A) BECAUSE IF THE ASSESSEE HAS SATISFIED THE REASON FOR NON FILING OF THE EVIDENCE BEFORE THE ASSESSING OFFICER THEN IT IS INCUMBENT UPON THE LD. C.I. T.(A) TO INVOKE THE DISCRETION PRESCRIBED UNDER RULE 46A SUBJECT TO PRO VIDE AN OPPORTUNITY TO THE ITA NO.122-123-1 44/AHD/2009 ASSESSMENT YEAR 2004-05, 2005-06 4 ASSESSING OFFICER TO EXAMINE THOSE EVIDENCES. SINC E IN BOTH THE YEARS ASSESSEE HAS ATTEMPTED TO FILE NEW EVIDENCES BEFORE THE LD. C.I.T.(A), HOWEVER, THOSE WERE NOT ENTERTAINED, THEREFORE, ON THE GROUND OF N ATURAL JUSTICE IT IS JUSTIFIABLE TO RESTORE THE ISSUE FOR FRESH ADJUDICATION. HOWEVER, FROM, THE SIDE OF THE REVENUE IT IS SUGGESTED THAT THOSE EVIDENCES MIGHT REQUIRE FUR THER INVESTIGATION. HENCE, IT WOULD BE JUSTIFIABLE TO SEND THE ISSUE BACK TO THE STAGE OF THE ASSESSING OFFICER SO THAT HE CAN INVESTIGATE AND VERIFY THE CORRECTNE SS OF THE EXPLANATION OF THE ASSESSEE. WE ORDER ACCORDINGLY WITH THE DIRECTION TO THE ASSESSING OFFICER TO ALLOW THE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND COMPLETE THE ASSESSMENT AS PER LAW. ON THE OTHER HAND, WE ALSO D IRECT THIS APPELLANT TO FULLY COOPERATE WITH THE INVESTIGATION WITHOUT SEEKING FR IVOLOUS ADJOURNMENT SO THAT THESE TWO ASSESSMENTS SHOULD GET FINALIZED AT AN EA RLY DATE. SINCE THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, THE GROUND RAISED BY THE ASSESSEE AS ALSO BY THE REVENUE, BOTH STOOD ALLOWED ONLY FOR STATISTICAL PURPOSES. 4. IN THE RESULT, ALL THE THREE APPEALS MAY BE TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 11/03/2011. SD/- SD/- ( G. D. AGARWAL) (MUKUL KUMAR SHRAWAT) VICE PRESIDENT JU DICIAL MEMBER. AHMEDABAD. DATED: 11/03/2011. S.A.PATKI. ITA NO.122-123-1 44/AHD/2009 ASSESSMENT YEAR 2004-05, 2005-06 5 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS) VALSAD. 4. THE CIT CONCERNED. 5. THE DR.,ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 9-3-2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 10-3- 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 10 -3-2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 11-3-2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 11 -3 -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11 -3 -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..