Shri Ashraf I. Kherani, Nani Daman V. The Income Tax Officer, Vapi Ward-1, Vapi

ITA 1477/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9532 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-01-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1477/AHD/2013 (ASSESSMENT YEAR: 2005-06) SHRI ASHRAF I KHERANI F-2, SECOND FLOOR ALFALA COMPLEX, MADRESS STREET, KHRIWAD, NANI DAMAN- 396210 V/S INCOME TAX OFFICER, VAPID WARD-1, VAPI (APPELLANT) (RESPONDENT) PAN: ACPPK1871L APPELLANT BY : SHRI M.K. PATEL, AR RESPONDENT BY : SHRI VILAS V. SHINDE, SR. D. R. ( )/ ORDER DATE OF HEARING : 02 -01-201 7 DATE OF PRONOUNCEMENT : 05 -01-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF THE LD. CIT(A), VALSAD DATED 27.12.2012 PERTAINI NG TO A.Y. 2005-06. ITA NO. 1477 /AHD/2013 . A.Y. 2005-06 2 2. THE ASSESSEE HAS RAISED FOLLOWING SUBSTANTIVE GROUN DS OF APPEAL. 1. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF T HE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN P ASSING THE APPELLATE ORDER WITHOUT GRANTING THE APPELLANT AN OPPORTUNITY OF BE ING HEARD. THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS CON TRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND PREJUDICIAL TO THE AP PELLANT. 2. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF T HE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN C ONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER IN MAKING ADDITION OF RS. 11,84,500/- U/S. 68 OF THE INCOME TAX ACT. THE ACTION OF THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) IS CONTRARY TO THE FACTS AND CIRCUMSTANCE S OF THE CASE AND LAW AND DESERVES TO BE DELETED. 3. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF T HE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN C ONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER IN MAKING ADDITION OF RS. 34,47,976/- ON ACCOUNT OF UNEXPLAINED CAPITAL U/S. 68 OF THE INCOME TAX ACT. THE ACTION OF THE LEARNED ASSESSING OFFICER IS COUNTRY TO THE FACTS AND CIRCU MSTANCES OF THE CASE AND LAW AND DESERVE TO BE DELETED. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSE E STATED THAT THE FIRST APPELLATE AUTHORITY HAS DECIDED THE APPEAL EX PARTE STATING THAT THE NOTICE HAS BEEN RETURNED BY THE POSTAL AUTHORITIES. IT IS THE SAY OF THE LD. COUNSEL THAT AT THE VERY SAME ADDRESS, THE ASSESSEE HAS REC EIVED THE NOTICE OF THE TRIBUNAL. THE LD. COUNSEL PRAYED FOR ANOTHER OPPORT UNITY TO THE ASSESSEE. THE LD. D.R. DID NOT OBJECT TO THIS REQUEST TO THE LD. COUNSEL. 4. AFTER CONSIDERING THE FACTS EMANATING FROM THE ORDE RS OF THE AUTHORITIES BELOW, UNDISPUTEDLY THE NOTICES OF THE FIRST APPELL ATE AUTHORITY WERE ITA NO. 1477 /AHD/2013 . A.Y. 2005-06 3 RETURNED UNSERVED, THOUGH ON THE VERY SAME ADDRESS THE NOTICE OF THE TRIBUNAL HAS BEEN DULY SERVED. BE THAT AS IT MAY, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILES O F THE LD. CIT(A). THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE FIRST APPELLATE AU THORITY ON 27 TH APRIL, 2017 WITHOUT FAIL. THE LD. CIT(A) IS DIRECTED TO DECIDE THE APPEAL AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 05- 01- 20 17. SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 05 /01/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD