Bhaskar Silk Mills Pvt. Ltd., Surat V. The Dy. Commissioner of Income Tax, Circle-1, Surat

ITA 1395/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2182 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 24-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RASESH SHAH
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 143(3)

Judgement Text

BHASKAR SILK MILLS VS. DCIT, CIRCLE-1, SURAT/I.T.A. NO.1395/AHD/2016/SRT/A.Y.:2011-12 PAGE 1 OF 5 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./I.T.A NO.1395/AHD/2016/SRT /ASSESSMENT YEAR : 2011-12 BHASKAR SILK MILLS PVT. LTD., PLOT NO.21, BLOCK NO.296, TANTITHAIYA, PALSANA, SURAT. [PAN: AACCB 3983 A] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, SURA.T APPELLANT /RESPONDENT /ASSESSEE BY SHRI RASESH SHAH CA /REVENUE BY SHRI PRASOON KABRA SR.DR / DATE OF HEARING: 24 .0 8 .2018 /PRONOUNCEMENT ON 18 .0 9 . 2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-1, SURAT(IN SHORT THE CIT (A)) DATED 04.03.2016 PERTAINING TO ASSESSMENT YEAR 2011-12, WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX OFFICER, CIRCLE-1, SURAT (IN BHASKAR SILK MILLS VS. DCIT, CIRCLE-1, SURAT/I.T.A. NO.1395/AHD/2016/SRT/A.Y.:2011-12 PAGE 2 OF 5 SHORT THE AO) DATED 31.03.2014 UNDER SECTION 143(3) OF INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. GROUND NO.1 RELATES TO CONFIRMING ADDITION OF RS.15,00,000/- AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. 3. GROUND NO.2 IS WITHOUT PREJUDICE, AND STATES THAT THE LD.CIT(A) HAS GROSSLY ERRED IN PASSING THE IMPUGNED APPELLATE ORDER OF AN EX-PARTE BASIS, WITHOUT PROPERLY APPRECIATING THE FACTS AND MERITS OF THE CASE AND ALSO WITHOUT PROVIDING THE APPELLANT A PROPER OPPORTUNITY OF BEING HEARD. THEREFORE, THE APPELLATE ORDER OF THE LD.CIT(A), NEEDS TO BE QUASHED AND THE ADDITION U/S.68 OF THE ACT AS MADE BY THE LD.AO NEEDS TO BE DELETED. 4. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY OF BEING HEARD ACCORDED TO THE ASSESSEE BY LD.CIT(A). IT WAS SUBMITTED THAT CIT(A) WAS NOT JUSTIFIED IN REJECTING THE APPEAL OF THE ASSESSEE EX-PARTE , EVEN THOUGH THE FACTS OF THE CASE REGARDING UNEXPLAINED CASH CREDIT, WERE DULY CONTAINED IN THE STATEMENT OF FACTS FORMING PART OF THE APPEAL MEMO IN FORM NO.35 AS FILED WITH THE LD.CIT(A) AND THE SUBMISSIONS BHASKAR SILK MILLS VS. DCIT, CIRCLE-1, SURAT/I.T.A. NO.1395/AHD/2016/SRT/A.Y.:2011-12 PAGE 3 OF 5 OF THE APPELLANT HAS MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS ARE ALSO REPRODUCED IN THE ASSESSMENT ORDER. HOWEVER, THE CIT(A BY CONSIDERING NON CONTENTIONS OF THE ASSESSEE APPELLANT ON THE DATE FIXED FOR HEARING DISMISSED THE APPEAL OF ASSESSEE FOR NON-PROSECUTION BY APPLYING THE RATION IN THE CASE OF CIT VS. B.N.BHATTACHARGEE & OTHERS 118 ITR 461 AND CIT VS. MULTIPLAN INDIA (P) LTD. 38 ITD 320 (DEL). IT WAS SUBMITTED THAT NOTICE ISSUED BY THE CIT(A) WERE NOT SERVED UPON THE ASSESSEE, HENCE THE ASSESSEE COULD NOT MAKE COMPLIANCE OF THE SAME. THE LD.COUNSEL PRAYED THAT THE APPEAL BE RESTORED TO THE FILE OF LD.CIT(A) WITH A DIRECTION THAT PROPER OPPORTUNITY OF BEING HEARD MAY BE ALLOWED TO THE ASSESSEE. 5. THE LD.SENIOR DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND ARGUED THAT CIT(A) HAS ALLOWED 6 OPPORTUNITIES OF HEARING, BUT THE ASSESSEE HAS FAILED TO APPEAR BEFORE HIM. 6. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES, WE FIND THAT THE CIT(A) HAS ISSUED NOTICE ON 18.03.2015 FIXING THE BHASKAR SILK MILLS VS. DCIT, CIRCLE-1, SURAT/I.T.A. NO.1395/AHD/2016/SRT/A.Y.:2011-12 PAGE 4 OF 5 HEARING FOR 01.05.2015 WHICH WAS LATER ADJOURNED TO 25.05.2015 AND 25.06.2015 FURTHER NOTICE WERE ALSO ISSUED ON 06.07.2015 FIXING THE HEARING FOR 23.07.2015 AND 10.08.2015 AND 19.02.2016 WHICH WE ARE NOT COMPLIED WITH BY THE ASSESSEE. HOWEVER, ON CAREFUL CONSIDERATION, WE FIND THAT THESE NOTICES WERE REMAINED TO BE COMPLIED WITH. WE FURTHER FIND THAT THE ASSESSEE HAS MADE ITS SUBMISSIONS IN HIS STATEMENT OF FACTS AND DURING THE ASSESSMENT PROCEEDINGS. HOWEVER, THE CIT(A) HAS NOT CONSIDERED THE SAME FOR ADJUDICATING THE APPEAL. THE EXPRESSION AUDI-ALTRAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS A SINE-QUA-NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, THE RIGHT TO PRESENT CASE AND EVIDENCE AND RIGHT TO RE-BUTT ADVERSE EVIDENCE, RIGHT CROSS-EXAMINATION, RIGHT TO LEGAL REPRESENTATION ARE NECESSARY FOR THE REASONED DECISION OR SPEAKING ORDER. WE FIND THAT IN THE INSTANT CASE THE ASSESSEE HAS NOT AVAILED PROPER OPPORTUNITY OF HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE OPPORTUNITY OF HEARING TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF POWERS CONFERRED UNDER RULE 28 OF THE TRIBUNAL RULE WE RESTORE THIS APPEAL BHASKAR SILK MILLS VS. DCIT, CIRCLE-1, SURAT/I.T.A. NO.1395/AHD/2016/SRT/A.Y.:2011-12 PAGE 5 OF 5 TO THE FILE OF LD.CIT(A) FOR RE-CONSIDERATION OF ALL THE GROUNDS OF APPEAL AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS TO MENTION TO THAT THE ASSESSEE WILL CO-OPERATE IN THE APPELLATE PROCEEDINGS AND HIS FAILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE IS AT LIBERTY TO FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON, ACCORDINGLY, THIS APPEAL IS SET-ASIDE TO THE FILE OF THE LD.CIT(A). 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 18-09-2018. SD/- SD/- ( . . /C.M. GARG) ( . . / O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / SURAT, DATED : 18 TH SEP , 2018/ S.GANGADHARA RAO, SR.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