Ajay Baldevbhai Patel, Ahmedabad V. The ITO, Ward-3(3)(11) (Previously Ward-7(1)), Ahmedabad

ITA 1341/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3405 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A DYANI
• Keywords: Reasonable cause

Judgement Text

, , . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO.1341/AHD/2018 ( / ASSESSMENT YEAR : 2009-10) AJAY BALDEVBHAI PATEL A-53, SARTHI BUNGALOWS NR.TELEPHONE EXCHANGE, BOPAL AHMEDABAD / VS. THE INCOME TAX OFFICER WARD-3(3)(11) AHMEDABAD-380 015 ./ ./PAN/GIR NO. : AMKPP 6032 D ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : -NONE- / RESPONDENT BY : SHRI R.A. DYANI, ADDL.CIT /DATE OF HEARING 04/03/2020 / DATE OF PRONOUNCEMENT 05 / 0 3 /20 20 / O R D E R PER SHRI SANDEEP GOSAIN, JUDICIAL MEMBER : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS)3, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-3 /264/WD.3(3)(1)/16-17 DATED 22/03/2018 ARISING IN THE ASSESSMENT ORDER P ASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS 'THE ACT') DATED 01/12/2011 RELEVANT TO ASSESSMENT YEAR (AY) 2009-1 0. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- ITA NO.1341/AHD/2018 AJAY BALDEVBHAI PATEL VS. ITO ASST.YEAR 2009-10 - 2 - 1. THE ID. CIT(A) HAS ERRED IN LAW AS WELL A S ON FACTS IN PASSING AN EX-PARTE ORDER WITHOUT PROPER CONSIDERATION AND APPRECIATION OF FACTS AND CIRCUMSTANCES AT APPELLANT'S END AS EXPLAINED TO THE ID. CIT(A). THA T SINCE THE APPELLANT WAS IN SEARCH OF A NEW A.R., THE PREVIOUS A.R. HAVING WITH DRAWN HIS LOA AS ALSO ADMITTED BY THE ID. CIT(A) IN HIS ORDER DECIDING PENALTY APP EAL, THE APPELLANT BONAFIDELY PRESUMED THAT HE WOULD BE GIVEN SOME TIME PRIOR TO ANY ADVERSE INFERENCE. THE APPELLANT THUS HUMBLY STATES THAT THE APPEAL BE SET -ASIDE TO THE FILE OF THE ID. CIT(A) FOR DECISION AFRESH IN THE INTEREST OF NATUR AL JUSTICE AND EQUITY. 2. THAT ON THE FACTS OF THE CASE AND IN LAW, THE ID. CIT(A) HAS ERRED IN UPHOLDING THE BEST JUDGMENT ASSESSMENT ORDER PASSED BY THE AO U/S.144 OF THE ACT WITHOUT APPRECIATING THE FACT THAT SINCE THE COPY O F AIR INFORMATION LEADING TO THE ADDITION IN QUESTION HAVING NOT BEEN FURNISHED BY T HE AO THOUGH HAVING BEEN SPECIFICALLY ASKED FOR, THE APPELLANT WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE IN DEFENDING HIS CASE. THE IMPUGNED ASSESSMEN T ORDER THUS REQUIRES TO BE QUASHED AS BAD IN LAW AND VOID-AB-INITIO ON THIS GR OUND ITSELF. 3. THE ID. CIT(A) HAS GRIEVOUSLY ERRED IN CO NFIRMING THE ADDITION OF RS.21,14,476/- ON ACCOUNT OF ALLEGED UNEXPLAINED IN VESTMENT U/S.69B OF THE ACT MADE BY THE AO ON CONTRADICTORY OBSERVATIONS. 4. THE ID. CIT(A) FURTHER ERRED IN NOT APPRE CIATING THE FACT THAT THE ENTIRE TRANSACTIONS I.E. EITHER UNSECURED LOANS OR LOANS A ND ADVANCES HAVING BEEN ROUTED THROUGH BANKING CHANNELS AND KEEPING IN VIEW THE FA CT THAT THE SOURCE OF THE SAME BEING THE TRANSACTIONS WITH THE STOCK EXCHANGE, THE IMPUGNED ADDITION WAS EVEN OTHERWISE NOT JUSTIFIED IN ABSENCE OF ANY ADVERSE M ATERIAL ON RECORD AND HENCE THE IMPUGNED ADDITION OF RS.21,14,476/- REQUIRES TO BE DELETED. 3. TODAY, THE CASE WAS FIXED FOR HEARING BUT NONE A PPEARED ON BEHALF OF ASSESSEE NOR ANY ADJOURNMENT APPLICATION HAS BEEN FILED ON RECORD. 4. FROM THE RECORDS, WE OBSERVE THAT REQUIRED NOTIC E WAS SENT TO THE ASSESSEE BY REGISTERED POST WHICH WAS DULY SERVED U PON THE ASSESSEE AND IN THIS RESPECT ACKNOWLEDGMENT FROM THE DEPARTMENT OF POSTS HAS ALREADY BEEN PLACED ON RECORD WHICH SHOWS THAT EVEN IN SPITE OF SERVICE OF NOTICE, THE ASSESSEE OR HIS REPRESENTATIVE HAS NOT COME BEFORE THIS COURT FOR ATTENDING ITA NO.1341/AHD/2018 AJAY BALDEVBHAI PATEL VS. ITO ASST.YEAR 2009-10 - 3 - THE HEARING WHICH GOES TO SHOW THAT ASSESSEE IS NOT INTERESTED IN PURSUING WITH HIS PRESENT APPEAL. HOWEVER, LD.DR PRESENT IN THE COURT IS READY TO THE ARGUMENTS, THEREFORE WE PROCEED TO DECIDE THE APPEA L ON MERITS EX-PARTE QUA THE ASSESSEE, AFTER HEARING THE LD.DR. 5. WE HAVE HEARD THE LD.DR AND PERUSED THE MATERIA L PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORI TIES. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS INDULGED IN A TR ADING ACTIVITY OF STOCK EXCHANGE AND AS PER AIR DETAILS WITH THE ASSESSING OFFICER, THE ASSESSEE MADE TRANSACTION OF RS.56,94,807/- IN STOCK EXCHANG ES WITH THE SAME TIME THE ASSESSEE HAS MADE PAYMENT OF RS.33,09,504/- BEI NG PAYMENT MADE TO CREDIT CARD COMPANIES AS PER THE AIR DETAILS. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE IMPUGNED INVESTMENTS BUT EVEN IN SPI TE OF AVAILING NUMEROUS OPPORTUNITIES, THE ASSESSEE COULD NOT EXPLAIN THE I MPUGNED INVESTMENTS. THUS, ADDITIONS WERE MADE BY THE ASSESSING OFFICER . 7. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASS ESSEE PREFERRED APPEAL BEFORE THE LD.CIT(A) BUT HAD NOT PUT APPEARANCE ON SEVERAL DATES, THEREFORE LD.CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSE E ON MERITS. THE OPERATIVE PORTION OF THE ORDER OF THE LD.CIT(A) IS CONTAINED IN PARAGRAPH NO.5.1 OF HIS ORDER WHICH IS REPRODUCED HEREUNDER: ITA NO.1341/AHD/2018 AJAY BALDEVBHAI PATEL VS. ITO ASST.YEAR 2009-10 - 4 - 5.1. DECISION : I HAVE PERSUED THE ASSESSMENT ORDER OF THE AO AND THE STATEMENT OF FACTS FILED BY THE APPELLANT CAREFULLY . THE AO HAS GIVEN SUBSTANTIAL OPPOERTUNITIES OF BEING HEARD AS PER RA TIO LAID DOWN IN THE CASE OF RAKESH C. RASTOGI & ANS VS. AA-253 ITR 94 (SC). HO WEVER, THE APPELLANT COULD NOT OR WAS NOT IN A POSITION TO AVAIL SUCH OP PORTUNITY TO EXPLAIN THE INVESTMENTS IN QUESTION. IN FACT THE AO HAS NOTED THAT THE APPELLANT HAS EXPRESSED HIS INABILITY TO EXPLAIN THE IMPUGNED INV ESTMENT OF RS.21,14,476/-. NOTWITHSTANDING THE RECORDING BY THE A.O., NUMBER O F OPPORTUNITIES WERE GIVEN BY THIS OFFICE FROM 02.02.2015 ONWARDS BUT TO NO AVAIL. NO NEW EVIDENCE WERE FILED UNDER RULE 46A, THEREFORE, NO R EMAND REPORT WAS CALLED FROM THE A.O. THE ASSESSING OFFICER HAS COMPUTED A DDITION U/S.69B IN PARA 4.4 OF ASSESSMENT ORDER AS UNDER: SR.NO. NAME AMOUNT (RS.) 1. BALDEVBHAI PATEL 71,000/ - 2. B.G. CHAUIDH 8,8000/ - 3. DAHYALAL LAVAJIBHAI 3,000/ - 4. INDUBHAI VASOYA 5,000/ - 5. JEHAN BOMI SARKARI 2,75,000/ - 6. NANDI ENTERPRISE 14,35,000/ - 7. PRAKASH 10,000/ - 8. R.D.MOBILE WORLD 61,000/ - 9. S.K. TRADERS 49,900/ - 10. STAR ENTERPRISE 1,74,830/ - 11. ZCG LENC CARE 50,946/ - GRAND TOTAL 21,44,476/ - I HAVE CAREFULLY EXAMINED THE ABOVE LIST OF CREDITO RS. IN MY OPINION, SMALL CREDITORS SUCH AS SR.NO.2, 3, 4 & 7 MAY NOT BE COOP ERATIVE WITH THE APPELLANT. PRINCIPLE OF EQUITY IS KEPT IN MIND. T HEREFORE, I DECIDE TO NOT CONFIRM THE AMOUNT OF RS.26,800/- SO AS TO DEFRAY N ATURAL JUSTICE. HOWEVER, I CONFIRM THE ADDITION U/S.69B OF RS.21,17,676/-. THE GROUND OF APPEAL IS PARTY ALLOWED. 8. ALTHOUGH IN THE PRESENT APPEAL, ASSESSEE HAS RAI SED FOUR GROUNDS BUT ALL THE FOUR GROUNDS RAISED BY THE ASSESSEE ARE INT ER-CONNECTED, INTER-RELATED AND RELATES TO CHALLENGING THE ORDER OF LD.CIT(A) I N CONFIRMING THE ADDITIONS ITA NO.1341/AHD/2018 AJAY BALDEVBHAI PATEL VS. ITO ASST.YEAR 2009-10 - 5 - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLA INED INVESTMENTS U/S.69B OF THE ACT. 9. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESE NT CASE, WE FIND THAT THE ASSESSEE MISERABLY FAILED TO EXPLAIN THE IMPUGN ED ASSESSMENT BEFORE ASSESSING OFFICER AS WELL CIT(A). THEREFORE, THE A SSESSING OFFICER AS WELL AS CIT(A) DECIDED THE ORDERS AGAINST THE ASSESSEE WHIL E MAKING ADDITIONS. EVEN BEFORE US, NO NEW FACTS OR CIRCUMSTANCES HAVE BEEN PLACED ON RECORD AND THE ORDERS PASSED BY THE REVENUE AUTHORITIES HAVE ALSO GONE UNREBUTTED, THEREFORE, WE FIND NO REASON TO INTERFERE INTO OR T O DEVIATE FROM SUCH FINDINGS OF THE AUTHORITIES BELOW AND WE UPHOLD THE FINDINGS OF THE LD.CIT(A) AND REJECT THE GROUND RAISED BY THE ASSESSEE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE COURT ON 05 - 03 - 2020 AT AHMEDABAD SD/- SD/- ( AMARJIT SINGH) ( SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 05 / 03 /2020 ' . . , . ( . ./ T.C. NAIR, SR. PS ITA NO.1341/AHD/2018 AJAY BALDEVBHAI PATEL VS. ITO ASST.YEAR 2009-10 - 6 - ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-3, AHMEDABAD 5. -./ ((*+ , *+ , ) / DR, ITAT, AHMEDABAD 6. /12 / GUARD FILE. / BY ORDER, - ( //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 4.3.20 (DICTATION-PAD 8-PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..4.3.20 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.5.3.20 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5.3.20 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER