Sanjay Mansukhlal Patel, Vapi V. The Income Tax Officer, Vapi Ward-8, Vapi

ITA 1357/AHD/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1860 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S CHOUDHARY
• Assessee Lawyers: A GOPALAKRISHNAN
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice
• Section: 68

Judgement Text

SANJAY MANSUKHLAL PATEL VS. ITO, VAPI WARD-3 /ITA NO.1357/AHD/2016/ A.Y. 2007-08 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT , . . , BEFORE SMT.DIVA SINGH, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A. NO.1357/AHD/2016 / ASSESSMENT YEAR : 2006-07 SANJAY MANSUKHLAL PATEL 202/B, A WING SHREE OM CO. OP. SOCI., NR. JAIN TEMPLE, ALKAPURI, VAPI-396 191 [PAN: AIKPP 0029 L] VS. THE INCOME TAX OFFICER, VAPI WARD-3, VAPI APPELLANT /RESPONDENT /ASSESSEE BY SHRI A. GOPALAKRISHNAN CA /REVENUE BY SHRI P.S.CHOUDHARY SR.DR / DATE OF HEARING: 07.01.2019 /PRONOUNCEMENT ON 10 .01.2019 /O R D E R PER O.P.MEENA, AM: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), VALSAD, DATED 01.03.2016, FOR THE ASSESSMENT YEAR 2006-07. 2. THE GROUND RAISED BY THE ASSESSEE READ AS UNDER : 1. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX HAS ERRED IN CONFIRMING THE ADDITION MADE BY LD. ASSESSING OFFICER TO THE TUNE OF RS.7,65,000/- AS UNACCOUNTED INCOME OF THE APPELLANT U/S. 68 SANJAY MANSUKHLAL PATEL VS. ITO, VAPI WARD-3 /ITA NO.1357/AHD/2016/ A.Y. 2007-08 PAGE 2 OF 4 OF THE ACT. THE ACTION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BASED ON PRESUMPTIONS, WITHOUT ANY BASIS AND DESERVES TO BE DELETED. 3. THE ABOVE GROUND RELATES TO ADDITION OF RS. 7,65,000 MADE AS UNACCOUNTED INCOME UNDER SECTION 68 OF THE ACT. 4. AT THE OUTSET, THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT ASSESSMENT ORDER FOR THE IMPUGNED ASSESSMENT YEAR UNDER CONSIDERATION HAS BEEN FRAMED UNDER SECTION 143(3). THE LD. CIT (A) WAS NOT JUSTIFIED IN REJECTING THE APPEAL OF THE ASSESSEE EX-PARTE. THE NOTICES ISSUED BY THE CIT (A) WERE NOT SERVED UPON THE ASSESSEE, HENCE, THE ASSESSEE COULD NOT MAKE COMPLIANCE OF THE SAME. THE LD.AO HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD MAY BE ALLOWED TO THE ASSESSEE AS THE ADDITION WAS MADE WITHOUT EXAMINING THE PERSON CONCERNED . THEREFORE, THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD TO PRODUCE THE PERSONS AND THE AO MAY BE DIRECTED TO EXAMINE THE COPY OF 7/12 EXTRACT SUBMITTED BY THE ASSESSEE. THE LD. CIT (A) HAS ADJUDICATED COMPLICATED ISSUES WITHOUT CONSIDERING THE REBUTTAL MADE BY THE ASSESSEE EX-PARTE. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE URGED BEFORE US THAT ONE MORE OPPORTUNITY OF BEING HEARD MAY BE GRANTED TO THE ASSESSEE TO MAKE GOOD HIS SUBMISSIONS WITH RELEVANT EVIDENCE TO THE SATISFACTION OF REVENUE AUTHORITIES BY SETTING ASIDE THE APPEAL TO THE FILE OF THE AO. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE REQUESTED THAT THE WHOLE ASSESSMENT MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR A DE-NOVO CONSIDERATION. SANJAY MANSUKHLAL PATEL VS. ITO, VAPI WARD-3 /ITA NO.1357/AHD/2016/ A.Y. 2007-08 PAGE 3 OF 4 5. THE LEARNED D.R. HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE BUT DID NOT TAKE SERIOUS VIEW ON THE PLEA OF THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSMENT UNDER CONSIDERATION WITHOUT ANALYZING EVIDENCE AND EXAMINATION OF THE CREDITORS. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS ARE MUST. WE FIND THE GUIDANCE FOR RIGHT OF HEARING, AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT HAS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS APPEAL TO THE FILE OF THE LD. ASSESSING OFFICER FOR ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH SANJAY MANSUKHLAL PATEL VS. ITO, VAPI WARD-3 /ITA NO.1357/AHD/2016/ A.Y. 2007-08 PAGE 4 OF 4 LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROCEEDINGS AND FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IS ALLOWED FOR STATISTICAL PURPOSES. 8. THE ORDER PRONOUNCE IN THE OPEN COURT ON 10.01.2019. SD/- SD/- ( /DIVA SINGH) ( . . /O.P.MEENA) ( /JUDICIAL MEMBER) ( /ACCOUNTANT MEMBER) / SURAT, DATED : 10 TH JANUARY, 2019/ SUBHANKAR SAMANTA, PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT