Shri Dipesh M. Kanjani, Ahmedabad V. The Income Tax Officer, Ward-3(4), Ahmedabad

ITA 1220/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1831 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: MONIL SHAH
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO. 1220/AHD/2015 ASSESSMENT YEAR :2009-10 SHRI DIPESH M. KANJANI C/O GERMAN CHEMICALS, PLOT NO. 139, PHASE-II, GIDC, NARODA, AHMEDABAD V/S . INCOME TAX OFFICER, WARD 3(4), AHMEDABAD PAN NO. ASVPK3426F (APPELLANT) .. (RESPONDENT) ' / BY ASSESSEE SHRI MONIL SHAH, A.R. $ ' / BY REVENUE SMT. SONIA KUMAR, SR. D.R. % ' /DATE OF HEARING 23.03.2016 &'() ' / DATE OF PRONOUNCEMENT 06.04.2016 O R D E R PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT(A)-7, AHMEDABAD, DATED 23.02.2015 FOR THE ASSESSMENT YEAR 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: 3. THE ASSESSEE IS AN INDIVIDUAL WHO FILED HIS ORIG INAL RETURN OF INCOME FOR A.Y. 2009-10 ON 28.08.2009 DECLARING TOTAL INCOME O F RS.2,25,020/- WHICH WAS INITIALLY PROCESSED U/S143(1) OF THE ACT. SUBSEQUE NTLY, ASSESSMENT WAS REOPENED U/S.147 OF THE ACT BY ISSUING NOTICE U/S.148 OF THE ACT ON 25.03.2013 AND IN ITA NO.1220/AHD/2015 A.Y. 09-10 [SHRI DIPESH M. KAN JANI VS. ITO] PAGE 2 RESPONSE TO WHICH ASSESSEE SUBMITTED THAT THE ORIGI NAL RETURN OF INCOME FILED ON 28.08.2009 BE CONSIDERED THE RETURN OF INCOME AGAIN ST NOTICE U/S.148 OF THE ACT. THEREAFTER, ASSESSMENT WAS FRAMED U/S.143(3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 10.12.2013 AND THE TOTAL INCOME WAS ASSESSED AT RS.4,69,540/-. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESS EE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO VIDE ORDER DATED 23.02.2015 (IN APPEAL NO. CIT(A) - 7/306/14-15) UPHELD THE ORDER OF A.O. AGGRIEVED B Y THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUNDS: 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN PASSING EX-PARTE ORDER. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN CONFIRMING ADDITION OF RS.2,44,515/- AS UNEXPLAINED INVESTMENT. 4. AT THE OUTSET, LD. A.R SUBMITTED THAT LD. CIT(A) HAS PASSED AN EX-PARTE ORDER AND ASSESSEE WAS NOT PROVIDED PROPER OPPORTUN ITY OF HEARING BEFORE PASSING THE EX-PARTE ORDER. HE THEREFORE SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO LD. CIT(A) FOR DECIDING THE ISSUE ON MERITS AND FURTHER SUBMITTED THAT ASSESSEE WOULD CO-OPERATE BEFORE LD. CIT(A). THE LD. D.R. ON THE OTHER HAND OBJECTED TO THE REQUEST MADE BY LD. A.R. TO REMIT THE ISSUE BACK TO THE FILE OF LD.CIT(A) AND FURTHER PRAYED THAT IF THE MATTER IS RESTORED TO THE LOWER AUTHORITIES, COST SHOULD BE LEVIED ON ASSESSE E SO THAT IN FUTURE HE WILL APPEAR BEFORE THE REVENUE AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THE PRESENT CASE WHILE DISMISSING T HE APPEAL, LD. CIT(A) HAS NOTED THAT THE ASSESSEE DID NOT APPEAR BEFORE HIM O N TWO OCCASIONS AND HE THEREAFTER PROCEEDED TO PASS THE ORDER. WE FURTHER FIND THAT THE ORDER PASSED IS NOT A SPEAKING ORDER. WE ARE OF THE VIEW THAT EVEN IN AN EX PARTE ORDER, THE LD. CIT(A) SHOULD HAVE DECIDED THE GROUNDS OF APPEAL OF THE ASSESSEE ON MERITS THEREOF. WE ALSO FIND THAT ASSESSEE HAS NOT PLACED ANY MATERIAL ON RECORD TO JUSTIFY HIS ACTION OF NOT APPEARING BEFORE LD. CIT (A). WE ARE OF THE VIEW THAT ITA NO.1220/AHD/2015 A.Y. 09-10 [SHRI DIPESH M. KAN JANI VS. ITO] PAGE 3 THE APATHY OF THE ASSESSEE TOWARDS THE PROCEEDINGS BEFORE THE LOWER AUTHORITIES SHOULD NOT BE ENCOURAGED. CONSIDERING THE AFORESAI D FACTS AND IN VIEW OF SUBMISSION OF LD. A.R. THAT ASSESSEE WILL APPEAR B EFORE LD. CIT(A), WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, THE ASSES SEE BE GIVEN ONE MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE LD. CIT(A) B UT ONLY AFTER PAYMENT OF COST OF RUPEES FIVE THOUSAND (RS.5000/-) WHICH IT SHALL DEPOSIT TOWARDS LEGAL AID AND THE PROOF OF WHICH WILL BE PRESENTED BEFORE LD. CIT(A). THEREAFTER LD. CIT(A) IS DIRECTED TO DECIDE THE ISSUE ON MERITS AN D IN ACCORDANCE WITH LAW AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO LD. CIT(A), WE ARE NOT ADJUDICATING ON MERITS THE OTHER GROUNDS RAISED BY ASSESSEE. THUS, THE GR OUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 06/04/ 2016 SD/- SD/- ( SHAILENDRA KUMAR YADAV) (ANIL CHA TURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD: DATED. 06 /04/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- *+ , -. / APPELLANT /+ 01-. / RESPONDENT 2+ 345 6 / CONCERNED CIT 4+ 6- , / CIT (A) 9+ :; < 045 , 45) = 3 / DR, ITAT, AHMEDABAD >+ < ?@ A B / GUARD FILE. BY ORDER/ ,/= ,$ , 45) = 3