The ITO,Vapi-Ward-4, Nani Daman V. Shri Maheshbhai G.Patel, Nani Daman

ITA 1234/AHD/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0349 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 07-09-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 06-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Assessment record; Reassessment proceedings
• Section: 69; 148; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO. 1234/AHD/2012 / ASSESSMENT YEAR : 2006-07 INCOME-TAX OFFICER, VAPI-WARD-4, DAMAN VS SHRI MAHESHBHAI G. PATEL, PROP. M.G. CORPORATION, SOMNATH TEMPLE ROAD, DABHEL, NANI DAMAN PAN : ACCPP 2194 C / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI PRASOON KABRA, SR DR ASSESSEE BY : NONE / DATE OF HEARING : 07/09/2016 / DATE OF PRONOUNCEMENT: 17/10/2016 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), VALSAD DATED 27.02.2012 FOR ASSESSMENT YEAR 2006-07. 2. FOLLOWING GROUNDS ARE RAISED:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) HAS ERRED IN RESTRICTING ADDITION OF 20% OF UNACCOUNTED LIQUOR SALE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF U NEXPLAINED CASH CREDIT OF RS.27,58,306/-. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.14, 41,207/- MADE UNDER SECTION 69 OF THE IT ACT. 3. NONE APPEARED FOR THE ASSESSEE DESPITE SERVICE O F THE NOTICE; THEREFORE, THIS APPEAL IS DECIDED EX-PARTE QUA ASSESSEE. ITA NO. 1234/AHD/2012 ITO VS. SHRI MAHESHBHAI G. PATEL AY : 2006-07 2 4. THE BRIEF FACT ARE ORIGINAL RETURN OF INCOME W AS FILED AT RS.11,07,810/- ON 31.03.2007 WHICH WAS PROCESSED U/ S 143(1) OF THE ACT. THEREAFTER, NOTICE U/S 148 WAS ISSUED; IN RESPONSE THERETO NO RETURN OF INCOME WAS FILED. REASSESSMENT PROCEEDINGS NOTICES WERE REPEATEDLY ISSUED WHICH WERE REMAINED UNCOMPLIED WITH. CONSEQ UENTLY, THE AO PASSED ORDER U/S 144 AND MADE THE IMPUGNED ADDITION S. 5. AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL, WHERE THE RE-OPENING OF ASSESSMENT WAS CHALLENGED AND THE ADDITIONS WERE CONTESTED ON MERITS. 6. THE LD. CIT(A) UPHELD THE REOPENING PROCEEDINGS; HOWEVER, ON MERITS, THE SUBSTANTIAL RELIEF GRANTED BY THE LD. C IT(A) IS AGITATED BY REVENUE BY AFORESAID GROUNDS. 7. THE LD. DR, VEHEMENTLY CONTENDS THAT THE ASSESSE E NEITHER FILED ANY RETURN OF INCOME NOR COMPLIED WITH THE ASSESSMENT P ROCEEDINGS. THE RECEIPT OF THE NOTICE IS NOT DISPUTED; HOWEVER, IN THE STAT EMENT OF FACTS BEFORE THE LD. CIT(A), IT HAS BEEN CONTENDED THAT A PROPER NOTICE WAS RECEIVED ONLY ON 25.12.2010 AND THE AO FRAMED ASSESSMENT ORDER ON 29 .12.2010. THE LD. CIT(A) WITHOUT NOTICING THESE FACTS, WITHOUT CALLIN G FOR REMAND REPORT AND MERELY RELYING ON THE ASSESSEES SUBMISSIONS, GAVE THE SUBSTANTIAL RELIEF. IT IS CONTENDED THAT WHEN THE REASSESSMENT IS HELD BY THE CIT(A) TO BE VALID AND SAME IS NOT CHALLENGED BY THE ASSESSEE, THE FACTUM OF REASSESSMENT PROCEEDINGS BECOMES LEGAL. SINCE THE REASSESSMENT WAS EX-PARTE DUE TO NON CO-OPERATION OF THE ASSESSEE, LD. CIT(A) OUGHT TO H AVE CONFRONTED THE MATERIAL TO THE LD. AO AND THEREAFTER TAKEN A PROPE R VIEW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THIS CASE, ON A V ALID REASSESSMENT, THE SUBSTANTIAL RELIEF HAS BEEN GIVEN MERELY BY UNILATE RALLY RELYING ON THE SUBMISSIONS OF THE ASSESSEE, WITHOUT EVEN VERIFYING THE FACTS. THUS, THE RELIEF HAS BEEN GIVEN IN UNILATERAL MANNER, WITHOUT PROPER APPLICATION OF ITA NO. 1234/AHD/2012 ITO VS. SHRI MAHESHBHAI G. PATEL AY : 2006-07 3 MIND AND VERIFYING THE ASSESSMENT RECORDS. THEREFOR E, THE ORDER OF LD. CIT(A) MAY BE REVERSED. 8. WE HAVE HEARD THE LD. DR, PERUSED THE MATERIAL A VAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE REASSESSMENT PROCEEDINGS HAVE BEEN UPHELD BY THE LD. CIT(A) WHIC H IS NOT CHALLENGED BY THE ASSESSEE. THE REASSESSMENT WAS EX-PARTE AS THE ASSESSEE DID NOT RESPOND. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES, IT IS D ESIRABLE THAT THE REASSESSMENT IS MADE AFTER GIVING THE ASSESSEE AN O PPORTUNITY OF BEING HEARD. THEREFORE, IN THE ENTIRETY OF FACTS AND CIR CUMSTANCES, THE ISSUES IN QUESTION ARE SET ASIDE AND RESTORED BACK TO THE FIL E OF AO TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER GIVING THE ASSE SSEE ADEQUATE OPPORTUNITY OF BEING HEARD. THE APPEAL OF THE REVE NUE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17 TH OCTOBER, 2016 AT AHMEDABAD. SD/- SD/- (PRADIP KUMAR KEDIA) ACCOUNTANT MEMBER (R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 17/10/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD