Ashwin A Uttutkar, Pune V. Income-tax Officer, Pune

ITA 1284/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5239 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Gift; Depreciation; Principle of natural justice; Additional evidence
• Section: 142(1); 144; 2

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1284/PUN/2017 / ASSESSMENT YEAR : 2012-13 ASHWIN A UTTUTKAR, L/H OF LATE SMT. MOHANA A UITTARKAR, 1900, NATU BAUG, SADASHIV PETH, PUNE 411030. PAN : AABPU8902G. . / APPELLANT. V/S THE INCOME TAX OFFICER, WARD 12(5), PUNE. . / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK. REVENUE BY : SHRI PANKAJ GARG. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 8, PUNE DATED 05.02.2017 FOR THE ASSESSMENT YEAR 2012-13. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED IN THE BU SINESS OF MANUFACTURING AND TRADING OF FURNITURE AND FURNITURE HARDWA RE. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2012-13 ON 29.09.2012 DE CLARING TOTAL INCOME OF RS.18,66,130/-. THE CASE WAS SELECTED FOR SCRUTINY AND T HEREAFTER / DATE OF HEARING : 25.07.2019 / DATE OF PRONOUNCEMENT: 19.08.2019 2 NOTICE U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED AND SE RVED ON THE ASSESSEE. AO HAS NOTED THAT THERE WAS NO COMPLIANCE FR OM THE ASSESSEE AND THEREFORE, HE PASSED ORDER U/S 144 OF THE ACT VIDE ORDER DT.02.03.2015 DETERMINING THE TOTAL INCOME AT RS.72,85,840/-. AGGRIEVED B Y THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.05.02.2017 (IN APPEAL NO.PN/CIT(A)-8/ITO WD-12(5)/210/20 16-17) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE O RDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUN DS : 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDI TION OF RS. 6,58,833 / - MADE BY THE LEARNED A.O.IN RESPECT OF SUNDRY CREDITORS W ITHOUT APPRECIATING THAT THE SAID ADDITION WAS NOT WARRANTED AT ALL. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDIT ION OF RS. 10,19,676/- MADE BY THE LEARNED A.O. IN RESPECT OF CAPITAL INTR ODUCED BY THE ASSESSEE WITHOUT APPRECIATING THAT THE SAID ADDITION WAS NOT WARRANTED AT ALL. 3. THE LEARNED CIT(A) ERRED IN - CONFIRMING THE ADDITION OF RS. 37,40,000/-- MADE BY THE LEARNED A.O. IN RESPECT OF GIFTS RECEIV ED BY THE ASSESSEE WITHOUT APPRECIATING THAT THE SAID ADDITION WAS NOT WARRANTED AT ALL. 4. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISAL LOWANCE OF DEPRECIATION OF RS. 1,2001- MADE BY THE LEARNED A.O. WITHOUT APPRECIATING THAT THE SAID DISALLOWANCE WAS NOT JUSTIFIED AT ALL. 5. THE LEARNED CIT(A) ERRED IN NOT ADMITTING THE AD DITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE IN RESPECT OF THE ABOVE R EFERRED ADDITIONS ON THE GROUND THAT THE ASSESSEE HAD FAILED TO ESTABLISH AN Y SUFFICIENT CAUSE IN NOT SUBMITTING THE SAID EVIDENCES BEFORE THE LEARNED A. O. AND THEREBY, ERRED IN SUSTAINING THE ADDITIONS MADE BY THE LEARNED A.O. 6. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THERE WAS A SUFFICIENT CAUSE ON THE PART OF THE ASSESSEE IN NOT SUBMITTING THE VARIOUS EVIDENCES BEFORE THE LEARNED A.O. AND THEREFORE, SHE OUGHT TO HAVE ADMITTED THE VARIOUS ADDITIONAL EVIDENCES SUBMITTED BY THE ASSES SEE AND THE VARIOUS ADDITIONS MADE BY THE LEARNED A.O . SHOULD HAVE BEEN DELETED. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHE R. 4. BEFORE US, LD.A.R. SUBMITTED THAT ASSESSEE HAD EXPIRED O N 29.09.2014. HE SUBMITTED THAT MR. ASHWIN ARUN UTTURKAR, W HO IS THE LEGAL HEIR OF ASSESSEE RESPONDING TO THE CASE WAS OUT OF STAT ION ON BUSINESS TOUR FROM 02.02.2015 TO 14.02.2015 AND THEREFORE COULD NOT APP EAR BEFORE THE AO. AO THEREFORE PASSED ORDER U/S 144 OF THE ACT. HE SUBMITTED THAT 3 BEFORE LD.CIT(A), ASSESSEE FILED ADDITIONAL EVIDENCES IN SUPPORT OF HIS CASE BUT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WERE N OT ACCEPTED OR CONSIDERED BY LD.CIT(A) AND LD.CIT(A) UPHELD THE ORDER OF AO. HE SUBMITTED THAT CONSIDERING THE FACT THAT THE LEGAL HEIR OF THE ASSESSEE COULD NOT APPEAR BEFORE AO ON ACCOUNT OF HIS BUSINESS TOUR AN D SINCE THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE BEFORE LD.CIT(A) HA S NOT BEEN CONSIDERED, IN THE INTERESTS OF JUSTICE, ONE MORE OPPORTU NITY BE GRANTED TO ASSESSEE TO PRESENT HIS CASE. HE FURTHER ASSURED THA T ASSESSEE WILL CO- OPERATE BY FILING THE REQUISITE DETAILS AND ALSO APPEAR BEFOR E THE AUTHORITIES. LD.D.R. OBJECTED TO THE PRAYER OF LD.A.R. AND SUBMITTED T HAT VARIOUS OPPORTUNITIES WERE ALREADY GRANTED TO THE ASSESSEE AND THEREFORE ASSESSEE DOES NOT DESERVE SECOND INNINGS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. IN THE PRESENT CASE, AO PASSED ORDER U/S 144 OF THE ACT MAKING THE ADDITIONS ON ACCOUNT OF DEPRECIATION, UNPROVED CREDITS, INTR ODUCTION OF CAPITAL AND GIFTS. AGGRIEVED BY THE ORDER OF AO, LEGAL HEIR OF THE ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A). WE FIND THAT LD.CIT(A) H AS PASSED AN ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO TH E MERITS OF THE ISSUE BEFORE HIM AND HAS ALSO REFUSED TO ADMIT ADDIT IONAL EVIDENCES THAT THE ASSESSEE HAD FILED. IT IS A SETTLED LAW THAT LD .CIT(A) HAS NO JURISDICTION TO DISMISS THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE HIM. EVEN IN AN EX-PARTE ORDER , THE LOWER AUTHORITIES SHOULD HAVE DECIDED THE GROUNDS OF APPEAL OF T HE ASSESSEE ON MERITS THEREOF. FURTHER IT IS A SETTLED LAW AND ALSO OBSER VED BY THE HONBLE APEX COURT IN VARIOUS DECISIONS THAT PRINCIPLES OF NATURAL JUSTICE REQUIRE THAT A PERSON SHOULD NOT BE CONDEMNED UNHEARD, THAT D ECISIONS SHOULD NOT BE REACHED BEHIND A PERSON AND THAT A PERSON SHOULD N OT BE PRECLUDED FROM PARTICIPATING IN THEM. CONSIDERING THE AFORESAID FACTS, WE ARE OF THE VIEW 4 THAT IN THE INTERESTS OF JUSTICE AND FAIR PLAY, THE ASSESS EE BE GIVEN ONE MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE THE LD.CIT(A). WE THEREFORE RE MIT THE ISSUE BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE ISSUE ON MERITS AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD.CIT(A) SHA LL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. ASSESSEE IS ALSO DIRECTED TO PROMPTLY FURNISH ALL THE DETAILS CALLED FOR BY THE AUTHORITIE S. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO LD.CIT(A), WE ARE NOT ADJ UDICATING ON MERITS THE GROUNDS OF THE APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 19 TH DAY OF AUGUST, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 19 TH AUGUST, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-8, PUNE. PR. CIT-4, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.