Shri Divyeshkumar Dhirajlal Vadher, Surat V. The Income tax Officer,Ward-8(1), Surat

ITA 1231/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0610 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE SHRI S.S. GODARA, JM, & SHRI MANISH BORAD , AM. ITA NO. 1231/AHD/2013 ASST. YEAR: 2009-10 DIVYESHKUMAR DHIRAJLAL VADHER, 405, NAYANDEEP APARTMENT, MAGAN NAGAR-2, KATARGAM, SURAT. VS. ITO, WARD 8(1), SURAT. APPELLANT RESPONDENT PAN AFQPV 8055F AND ITA NO. 1232/AHD/2013 ASST. YEAR: 2008-09 HASMUKHBHAI POPATBHAI DESAI, A-234, BHAGWATIKRUPA SOCIETY, B/H SPINNING MILLS, VARACHHA ROAD, SURAT. VS. ITO, WARD 9(2), SURAT. APPELLANT RESPONDENT PAN AFBPD5521K APPELLANT BY SHRI M. K. PATEL, AR RESPONDENT BY SHRI S. L. CHANDEL, SR.DR DATE OF HEARING: 9/9/2016 DATE OF PRONOUNCEMENT: 09/9/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . ITA NO. 1231 & 1232/AHD/2013 ASST. YEAR 2009-10 & 2008-09 2 THESE TWO APPEALS BY TWO DIFFERENT ASSESSEES NAMEL Y SHRI DIVYESHKUMAR DHIRAJLAL VADHER AND HASMUKHBHAI POPAT BHAI DESAI, PERTAINING TO ASST. YEARS 2009-10 & 2008-09 RESPECT IVELY ARE DIRECTED AGAINST THE ORDERS OF CIT(A)-V, SURAT IN APPEAL NOS .CAS/V/267/2011- 12 DATED 4.2.2013 & NO.CAS/V/305/2001-12 DATED 5.2. 2013 RESPECTIVELY. IN BOTH THE APPEALS THE ISSUES RAISED ARE SIMILAR AND ALSO NONE APPEARED ON BEHALF OF ASSESSEE BEFORE LD. CIT(A). THEREFORE, THEY HAVE BEEN TAKEN TOGETHER FOR ADJUDI CATION AND DISPOSAL FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.1231/AHD/2013 FOR ASST. YEAR 2009-10 A SSESSEE HAS RAISED FOLLOWING GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT THE LD. COMMISSIONER OF THE INCOME-T AX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.20,07,603/- ON ACCOUNT OF ALL EGED UNEXPLAINED CASH DEPOSITS IN BANK ACCOUNT. 2. IT IS THEREFORE, PRAYED THAT THE ABOVE ADDITION MAY PLEASE BE DELETED AS LEARNED MEMBERS OF THE TRIBUNAL MAY DEEM IT PROPER. 3. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF THE HEARING OF TH E APPEAL. 3. IN ITA NO.1232/AHD/2013 FOR ASST. YEAR 2008-09 A SSESSEE HAS RAISED FOLLOWING GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT THE LD. COMMISSIONER OF THE INCOME-T AX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.8,82800/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF PROPERTY. ITA NO. 1231 & 1232/AHD/2013 ASST. YEAR 2009-10 & 2008-09 3 2. IT IS THEREFORE, PRAYED THAT THE ABOVE ADDITION MAY PLEASE BE DELETED AS LEARNED MEMBERS OF THE TRIBUNAL MAY DEEM IT PROPER. 3. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF THE HEARING OF TH E APPEAL. 4. AT THE OUTSET LD. AR OF THE ASSESSEE IN THE CASE S OF BOTH THE ASSESSEES SUBMITTED THAT IN THESE CASES DUE TO UNAV OIDABLE REASONS AND CIRCUMSTANCES NONE APPEARED BEFORE THE FIRST AP PELLATE AUTHORITY AND THE ORDER WAS PASSED EX PARTE BY LD. CIT(A) DIS MISSING BOTH THE APPEALS. LD. AR REQUESTED FOR GIVING ONE MORE OPPOR TUNITY TO APPEAR BEFORE LD. CIT(A) SO THAT HE CAN PUT FORTH THEIR SU BMISSIONS AND CONTENTIONS BEFORE HIM. 5. NO OBJECTION WAS RAISED BY LD. DR TO THE REQUEST OF LD. AR. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN BOTH THE CASES THE LD. C IT(A) HAS DISMISSED THE APPEALS FOR NON APPEARANCE. THEREFORE, WE ARE O F THE VIEW THAT IN THE INTEREST OF NATURAL JUSTICE BOTH THE ASSESSEES DESERVE ONE MORE OPPORTUNITY OF BEING HEARD BEFORE LD. CIT(A). WE AC CORDINGLY, REMIT THE ISSUES RAISED IN BOTH THE APPEAL TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE ASSESSEES AND PASS A FRESH ORDER. BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 1231 & 1232/AHD/2013 ASST. YEAR 2009-10 & 2008-09 4 7. IN THE RESULT, APPEALS OF BOTH THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH SEPTEMBER, 2016 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 9/9/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 09/09/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 09/09/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 16/9/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: