LATE SHRI DILIP SHANKARRAO NAGPURE, Nashik V. ITO, Nashik

ITA 1438/PUN/2012

• Counselvise Citation: 143824514 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 28-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N O N E
• Keywords: Unexplained investment; Search and seizure; Principle of natural justice
• Section: 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1437 / P N/ 20 12 ASSESSMENT YEAR : 200 4 - 05 SHRI ABHIJIT DILIP NAGPURE, MHASOBHA LANE, RAVIWAR PETH, OPP. HEMLATA TALKIES, NASHIK VS. ITO, WARD - 2(3), NASHIK (APPELLANT) (RESPONDENT) PAN NO. AFAPN5670C ITA NO. 1438 /PN/20 12 ASSESSMENT YEAR : 200 4 - 05 LATE SHRI DILIP SHANKARRAO NAGPURE, MHASOBHA LANE, RAVIWAR PETH, OPP. HEMLATA TALKIES, NASHIK VS. ITO, WARD - 2(1), NASHIK (APPELLANT) (RESPONDENT) PAN NO. AAPPN5710M APPELLANT BY: N O N E RESPONDENT BY: SHRI SANTOSH KUMAR DATE OF HEARING : 03 - 09 - 2013 DATE OF PRONOUNCEMENT : 20 - 09 - 2013 ORDER P ER R.S. PADVEKAR , JM : - TH ESE TWO APPEAL S ARE FILED BY THE TWO DIFFERENT A SSESSEE S CHALLENGING THE RESPECTIVE IMPUGNED ORDER S OF THE LD. CIT(A) - II, NASHIK DATED 12 - 12 - 2011 FOR THE A.Y. 200 4 - 05. THE LD. CIT(A) HAS DISMISSED THE APPEALS FILED BY THESE ASSESSEES EX - PARTE BY GIVI NG THE REASON THAT THE ASSESSEE WAS NOT INTERESTED FOR PROSECUTING THE APPEALS. 2. THE GROUNDS TAKEN IN ITA NO. 1437/PN/2012 ARE AS UNDER: 1. ON THE FACTS AND IN LAW THE CIT(A) IS NOT JUSTIFIED IN PASSING EX - PARTY ORDER WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE. 2. ON THE FACTS AND IN LAW THE CIT(A) IS NOT JUSTIFIED IN NOT VERIFYING/CONSIDERING THE CLAIM OF THE APPELLANT IN THE STATEMENT OF FACTS FILED WITH THE APPEAL MEMO THAT T HE SOURCE OF THE AMOUNT OF 2 ITA NO S . 1437 & 1438/PN/2012, ABHIJIT DILIP NAGPURE & LATE SHRI DILIP SHANKARRAO NAGPURE, NASHIK RS.12 ,50,000/ - ADDED BY THE A.O. AS UNEXP LAINED INVESTMENT TOWARDS PAYMENT TO CHINTAMANI CONSTRUCTION, IS CHEQUES RECEIVED FROM SHRI BHUPENDRA SHAH I.E. ONE OF THE PARTNER OF M/S. CHINTAMANI CONSTRUCTIONS. 3 . THE GROUNDS TAKEN IN ITA NO. 1438/PN/2012 ARE AS UNDER: 1. ON THE FACTS AND IN LAW THE CIT(A) IS NOT JUSTIFIED IN PASSING EX - PARTY ORDER WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE. 2. ON THE FACTS AND IN LAW THE CIT(A) IS NOT JUSTIFIED IN NOT VERIFYING/CONSIDERING THE CLAIM OF THE APPELLANT IN THE STATEMENT OF FACTS FILED WITH THE AP PEAL MEMO THAT T HE SOURCE OF THE AMOUNT OF RS.12,50,000/ - ADDED BY THE A.O. AS UNEXPLAINED INVESTMENT TOWARDS PAYMENT TO CHINTAMANI CONSTRUCTION, IS CHEQUES RECEIVED FROM SHRI BHUPENDRA SHAH I.E. ONE OF THE PARTNER OF M/S. CHINTAMANI CONSTRUCTIONS. 4 . IN BOTH THESE CASES THERE IS A CHARGE AGAINST THE ASSESSEES THAT THEY HAVE ADVANCED MONEY TO M/S. CHINTAMANI CONSTRUCTION ON 08 - 10 - 20 03 AGAINST WHOM THE SEARCH AND SEIZURE ACTION WAS TAKEN U/S. 132 OF THE INCOME - TAX ACT. IN THE CASE OF BOTH THESE ASSESSEE S , THE ASSESSING OFFICER HAS TREATED THE ENTIRE AMOUNT OF RS.12 ,50,000/ - EACH AS A N INCOME OF THE ASSESSEES AND DETERMINED THE TOTAL INCOME. THE ASSESSMENT ORDERS WERE CHALLENGED BY THESE ASSESSEES BEFORE THE LD. CIT(A). THE LD. CIT(A) DECIDED THE MATTER EX - PARTE I N BOTH THESE CASES BY OBSERVING THAT EVEN AFTER GIVING THE SUFFICIENT OPPORTUNITY TO T HE ASSESSEE S DID NOT REMAIN PRESENT NOR FILE ANY REQUEST FOR ADJOURNMENT OR WRITTEN SUBMISSIONS. ON THE PERUSAL OF THE LD. CIT(A) , WE FIND THAT EVEN IF THE DA TE OF HEARING FIXED IN THESE CASES HAVE BEEN MENTIONED BUT THERE IS NO CATEGORICAL ASSERTION WHEN NOTICES WERE SERVED ON THE SE ASSESSEES. MOREOVER, AS PER THE POWERS OF THE LD. CIT(A) U/S. 251 HE HAS TO ADJUDICATE THE ISSUES ON MERITS AND CANNOT TAKE THE SHELTER OF THE DECISION OF THE TRIBUNAL IN THE CASE OF MULTIPLAN INDIA LTD. 38 ITD 320 3 ITA NO S . 1437 & 1438/PN/2012, ABHIJIT DILIP NAGPURE & LATE SHRI DILIP SHANKARRAO NAGPURE, NASHIK (DELHI) AS WELL AS DECISION OF THE HON'BLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR 223 ITR 480 (M.P.). 5 . WE, THEREFORE, CONSIDER IT FIT TO RESTORE BOTH THESE APPEALS TO FILE OF THE CIT(A) TO DECIDE THE GROUNDS ON MERIT AFTER ENSURING SERVICE OF NOTICES O N THESE ASSESSEES , I N ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE . ACCORDINGLY IN BOTH THESE CASES THE IMPUGNED ORDERS ARE SET ASIDE. 6 . IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR THE STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 20 - 09 - 20 1 3 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 20 TH SEPTEMBER, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT - II, NASHIK 4 THE CIT - II, NASHIK 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE