The ITO,Vapi Ward-1, Vapi V. Shri Devraj Narayan Swami, Vapi

ITA 1417/AHD/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9337 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 27-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Assessee Lawyers: S N DIVETIA
• Keywords: Unexplained investment; Opportunity of being heard; Additional evidence
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER) ITA. NO: 1417/AHD/2012 (ASSESSMENT YEAR: 2009-10) INCOME TAX OFFICER, VAPI WARD-1, VAPI V/S SH. DEVRAJ NARAYAN SWAMI, 101-102, SILVER POINT, CHAR RASTA, VAPI. (APPELLANT) (RESPONDENT) PAN: ABAPS8749P APPELLANT BY : SHRI ALBINUS TIRKEY, SR. D .R. RESPONDENT BY : SHRI S. N. DIVETIA, A.R. ( )/ ORDER DATE OF HEARING : 06 -02-201 7 DATE OF PRONOUNCEMENT : 07 -02-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A), VALSAD DATED 30.03.2012 PERTAINING TO A.Y. 2009-10. 2. THE SUBSTANTIVE GRIEVANCE OF THE REVENUE READS AS U NDER:- ITA NO. 1417 /AHD/2012 . A.Y.2009-10 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF E XPENSES OF RS.3,67,085/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION U/S 68 OF RS.1,57,34 4/-. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.37, 63,125/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL EVIDENCES DURING THE APPELLATE PROCEEDINGS WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE AO. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE R ETURN OF INCOME WAS FILED BY THE ASSESSEE ON 10.06.2009 DECLARING TOTAL INCOM E AT RS.3,21,262/-. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND ACC ORDINGLY STATUTORY NOTICES WERE SERVED BUT THE SAME WERE RETURNED BY T HE POSTAL AUTHORITY WITH THE REMARKS NOT KNOWN. SUBSEQUENTLY THE QUES TIONNAIRE WAS ALSO RETURNED UNSERVED AND THE SHOW CAUSE NOTICE SENT ON 30.11.2011 WAS SENT ON THE NEW ADDRESS WHICH ALSO REMAINED UNSERVED. TH E A.O. WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT U/S. 144 O F THE ACT AS PER THE DETAILS AVAILABLE FROM THE RETURN OF INCOME. THE RE TURNED INCOME OF RS. 3,21,262/- WAS ASSESSED AT RS. 46,08,820/-. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT( A) AND IN SUPPORT OF HIS CONTENTION, NECESSARY DETAILS WERE FILED. AFTER CON SIDERING THE FACTS AND THE DETAILS MADE AVAILABLE TO HIM, THE FIRST APPELLATE AUTHORITY DELETED THE ADDITIONS/DISALLOWANCES MADE BY THE A.O. 5. BEFORE US, IT WAS STRONGLY CONTENDED THAT THE FIRST APPELLATE AUTHORITY HAS CONSIDERED THE DOCUMENTS/INFORMATIONS/DETAILS WHICH WERE NEVER BEFORE ITA NO. 1417 /AHD/2012 . A.Y.2009-10 3 THE A.O. IT IS THE SAY OF THE LD. D.R. THAT THE LD. CIT(A) DID NOT EVEN CALL FOR ANY REMAND REPORT FROM THE A.O. LD. COUNSEL FOR THE ASSESSEE HEAVILY RELIED UPON THE FINDINGS OF THE FIRST APPELLATE AUTHORITY. 6. AFTER GIVING A THOUGHTFUL CONSIDERATION TO THE ORDE RS OF THE AUTHORITIES BELOW, WE FIND THAT DURING THE COURSE OF THE ASSESS MENT PROCEEDINGS, NONE ATTENDED BEFORE THE A.O. WE ALSO FIND THAT THE FIRS T APPELLATE AUTHORITY HAS CONSIDERED CERTAIN DETAILS/DOCUMENTS WHICH WERE NEV ER BEFORE THE A.O. WE ALSO FIND THAT THE FINDINGS OF THE LD. CIT(A) AR E BASED ON THOSE DOCUMENTS WHICH WERE ADMITTED BY HIM IN GROSS VIOLA TION OF RULE 46A OF THE I.T. RULES. IN OUR CONSIDERED OPINION, THE FIND INGS OF THE FIRST APPELLATE AUTHORITY ARE IN VIOLATION OF THE PRINCIPLES OF NAT URAL JUSTICE. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE T HE ENTIRE ISSUES TO THE FILES OF THE A.O. THE ASSESSEE IS DIRECTED TO FURNISH ALL THE RELATED DOCUMENTS BEFORE THE A.O. AND THE A.O. IS DIRECTED TO DECIDE THE ISSUES AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS T REATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 07- 02- 20 17 SD/- SD/- (S.S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 07 /02/2017 RAJESH