Vinaykumar R. Kothari, Jalna V. Income tax Officer, Jalna

ITA 1446/PUN/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7125 (ITAT-PUNE)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 08-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK AGGARWAL
• Assessee Lawyers: K SRINIVASAN
• Keywords: Opportunity of being heard; Principle of natural justice; Reason to believe
• Section: 147; 144

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1446/PUN/2017 / ASSESSMENT YEAR : 2010-11 VINAYKUMAR R. KOTHARI, RUSHABH BUNGLOW, NEAR SHIVAJI STATUTE, JALNA 43120. PAN : AKYPK1482G. . / APPELLANT V/S INCOME TAX OFFICER, WARD-1, JALNA. . / RESPONDENT ASSESSEE BY : SHRI K. SRINIVASAN. REVENUE BY : SHRI VIVEK AGGARWAL / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE O RDER OF COMMISSIONER OF INCOME TAX (A) - I, AURANGABAD DT. 21.03.20 17 FOR THE ASSESSMENT YEAR 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- 2.1 ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM BUSINESS, CAP ITAL GAINS AND OTHER INCOME. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. / DATE OF HEARING : 07.12.2017 / DATE OF PRONOUNCEMENT: 08.12.2017 2 2010-11 DECLARING TOTAL INCOME OF RS.18,15,600/- ON 06.08.201 1. AO CONSIDERED THE RETURN OF INCOME TO BE NON-EST. AO ON T HE BASIS OF RECORDS FURNISHED BY THE ASSESSEE NOTICED THAT ASSESSE E HAS GIVEN LOAN TO THE EXTENT OF RS.1,27,90,000/- ON VARIOUS DATES DURING THE YEAR TO JIJAMATA SUGAR PRIVATE LIMITED AND HAD ALSO DEPOSITED CA SH AMOUNTING TO RS.15,00,000/- IN HIS BANK ACCOUNT. AO NOTICED THAT ASSESSEE HAS NOT DISCLOSED THESE TRANSACTIONS BY FILING THE RETURN OF INCOME AND ACCORDINGLY AS PER HIM THERE WAS REASON TO BELIEVE THA T ASSESSEES INCOME OF RS.1,27,90,000/- CHARGEABLE TO TAX HAS ESCAPED THE ASSESSMENT. AO ACCORDINGLY ISSUED NOTICE U/S 147 OF THE ACT DT.26.03.2015 AND SERVED UPON THE ASSESSEE, WHEREIN THE ASSESSEE WAS ASKED TO FILE THE RETURN OF INCOME. AO NOTED THAT NO RE TURN OF INCOME WAS FILED BY THE ASSESSEE. AO THEREAFTER, ON THE BASIS OF MATERIAL ON RECORD, PASSED ORDER ON 31.03.2016 U/S 144 R.W.S. 147 OF THE ACT AND DETERMINED THE TOTAL INCOME AT RS.1,61,05,600/-. AGGRIEVE D BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE O RDER DT.21.03.2017 (IN APPEAL NO.ABD/CIT(A)-1/78/2016-17) DISMIS SED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT (A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) ERRED IN DISPOSING APPEAL EX-PARTE APPLYING MULTIPLAN DECISI ON WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD, VIOLATING PRIN CIPLES OF NATURAL JUSTICE AND HIS ORDER MAY BE SET ASIDE AS BAD IN LAW AND MA Y BE QUASHED AS ILLEGAL AND AN APPROPRIATE ORDER PASSED GIVING SUIT ABLE RELIEF TO THE ASSESSEE. 2. THE ASSESSING OFFICER AND CIT(A) HAVE ERRED IN C OMING TO THE CONCLUSION EXPARTE WITHOUT GIVING ADEQUATE OPPORTUNITY AND HO LDING THAT DEPOSIT OF RS.15,00,000 IN BANK AND LOANS OF RS.1,2 7,90,000/- AS UN- EXPLAINED WITHOUT HEARING ASSESSEE AND IGNORING EVI DENCE / FACTS ON RECORD AND FINDINGS GIVEN MAY BE SET ASIDE AND SUIT ABLE DIRECTIONS ISSUED TO ALLOW APPELLANTS CLAIM. 3. THE ASSESSING OFFICER AND CIT(A)S ORDERS MAY BE SET ASIDE AND THEY BE DIRECTED TO ACCEPT ASSESSEES RETURN FILED. 3 3. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT ALL THE GROUNDS ARE INTER-CONNECTED AND ARE CONSIDERED TOGETHER. 4. BEFORE US, LD.A.R. SUBMITTED THAT LD.CIT(A) HAS PASSED AN EX- PARTE ORDER WITHOUT DECIDING THE ISSUE ON MERITS. HE FURT HER SUBMITTED THAT THE OBSERVATION OF LD.CIT(A) THAT ASSESSEE DID NOT R ESPOND TO NOTICE FOR HEARING HE SUBMITTED THAT TWO NOTICES DT.18.11.2016 AN D NOTICE DT.15.12.2016 WERE NOT RECEIVED BY THE ASSESSEE AND THE REFORE ASSESSEE COULD NOT APPEAR BEFORE LD.CIT(A). IN SUPPORT OF HIS CONTE NTION OF NON- RECEIPT OF NOTICE HE PLACED ON RECORD THE AFFIDAVIT OF ASSES SEE. HE THEREFORE SUBMITTED THAT IN THE INTEREST OF JUSTICE, ASSES SEE BE GRANTED ONE MORE OPPORTUNITY TO PLEAD HIS CASE BEFORE AO AND FUR THER SUBMITTED THAT ASSESSEE WILL CO-OPERATE AND APPEAR BEFORE THE AUTHORITIES. LD.D.R. ON THE OTHER HAND, POINTING TO THE ORDER OF LD.CIT(A) AND AO SUBMITTED THAT ASSESSEE HAD NOT APPEARED BEFORE LD.CIT(A) AND A O AND IN SUCH A SITUATION, THERE WAS NO OTHER ALTERNATIVE LEFT WITH THE LOWE R AUTHORITIES. HE THUS SUPPORTED THE ORDER OF LOWER AUTHORITIES. 5. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE ORDERS OF LOWER AUTHORITIES WE FIND THAT T HE ORDER OF THE AO WAS PASSED U/S 144 R.W.S. 147 OF THE ACT. WE FURTHER FIND THAT LD. CIT(A) HAS UPHELD THE ADDITION MADE BY THE AO AND DISMISS ED THE APPEAL OF ASSESSEE ON ACCOUNT OF NON-COMPLIANCE WITH THE NOTICES BY A CRYPTIC AND NON-SPEAKING ORDER. IT IS A SETTLED LAW TH AT THE LD. CIT(A) MUST PASS A REASONED ORDER WHICH SHOULD REFLECT APPLICAT ION OF MIND ON THE ISSUES/POINTS RAISED BEFORE HIM. THE HON'BLE DELHI HIGH COURT IN THE CASE OF VODAFONE ESSAR LTD VS. DRP, REPORTED IN (201 1) 196 TAXMAN 4 0423, HAS HELD THAT WHEN A QUASI JUDICIAL AUTHORITY DEALS W ITH A LIS, IT IS OBLIGATORY ON ITS PART TO ASCRIBE COGENT AND GERMANE RE ASONS AS THE SAME IS THE HEART AND SOUL OF THE MATTER AND FURTHER TH E SAME ALSO FACILITATES APPRECIATION WHEN THE ORDER IS CALLED IN QUESTION BEFORE THE SUPERIOR FORUM. IN THE PRESENT CASE, WE ARE OF THE VIEW T HAT THE IMPUGNED ORDER SUFFERS FROM LACK OF REASONING AND IS NOT A SPEAKING ORDER. WE, THEREFORE, CONSIDER IT APPROPRIATE TO SET ASID E THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK BEFORE LD. CIT(A) FOR DECIDING THE ISSUES AFRESH IN ACCORDANCE WITH LAW AND AFTER ALLOWING SUFFICIE NT OPPORTUNITY OF HEARING TO BOTH THE PARTIES. NEEDLESS TO STATE THAT WHILE DECIDING THE APPEAL, THE LD. CIT(A) SHALL PASS A SPEAKING ORD ER AS MANDATED BY PROVISIONS OF SECTION 250(6) OF THE ACT. ASSE SSEE IS ALSO DIRECTED TO PROMPTLY FURNISH ALL THE REQUIRED DETAILS CALLED FOR BY LD. CIT(A). IN CASE, ASSESSEE FAILS TO FURNISH REQUIRED DETAILS, LD . CIT(A) WILL BE FREE TO PROCEED AND DECIDE THE MATTER ON THE BASIS OF MATERIALS AVAILABLE ON RECORD AND IN ACCORDANCE WITH LAW. IN VIEW OF OUR DECISION TO RESTORE THE ISSUES TO THE FILE OF LD. CIT(A), WE ARE NOT ADJUDICATING THE GROUNDS ON MERITS. ACCORDINGLY, THE APPEAL FILED BY THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES . ORDER PRONOUNCED ON 8 TH DAY OF DECEMBER, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 8 TH DECEMBER, 2017. YAMINI 5 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1, AURANGABAD. PR.CIT-1, AURANGABAD. '#$ %%&', &', / DR, ITAT, B PUNE; $+,-/ GUARD FILE. / BY ORDER // TRUE COPY // ./0%1&2 / SR. PRIVATE SECRETARY &', / ITAT, PUNE.