Kisan Tukaram Bhor, Pune V. Income-tax Officer,

ITA 1492/PUN/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0966 (ITAT-PUNE)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 07-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Keywords: Principle of natural justice; Validity of assessment; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.1492/PN/2016 / ASSESSMENT YEAR : 2005-06 SHRI KISAN TUKARAM BHOR, KUKADI COLONY, NARAYANGAON, TALUKA : JUNNER, DIST, PUNE PAN :AAXPB9404A . / APPELLANT V/S ITO, WARD - 6(2), PUNE . / RESPONDENT / APPELLANT BY : SHRI S.N. PURANIK / RESPONDENT BY : SHRI ANIL CHAWARE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11-04-2016 OF THE CIT(A)-3, PUNE RELATING TO ASSES SMENT YEAR 2005-06. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND IN RESPONSE TO NOTICE U/S.148 FILED HIS RETURN OF INCOME ON 25-08- 2005 DECLARING TOTAL INCOME OF RS.79,319/-. IN THIS CASE, AI R INFORMATION WAS OBTAINED ACCORDING TO WHICH THE ASSESSEE HAS MADE CASH DEPOSITS OF RS.11,91,000/- ON VARIOUS DATES IN THE BANK ACCOUNT MAINTAINED WITH CANARA BANK. REJECTING THE VARIOUS EXPLAN ATIONS GIVEN BY THE ASSESSEE THE AO MADE ADDITION OF RS.11,91,000 /- TO THE TOTAL INCOME OF THE ASSESSEE AS INCOME FROM UNEXPLAINED SO URCES AND DETERMINED THE TOTAL INCOME AT RS.13,31,650/-. / DATE OF HEARING :07.09.2016 / DATE OF PRONOUNCEMENT:07.09.2016 2 ITA NO.1492/PN/2016 3. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE LD.C IT(A) ISSUED NOTICE U/S.250 ON 12-08-2015 FIXING THE DATE OF HE ARING ON 31- 08-2015. HOWEVER, SINCE NONE APPEARED ON BEHALF OF THE A SSESSEE AND SINCE THE APPEAL WAS PENDING FOR MORE THAN 5 YEARS, SHE TOOK UP THE APPEAL FOR DISPOSAL AS PER THE GUIDELINES ISSUED BY CBDT VIDE LETTER DATED 06-01-2016. IN ABSENCE OF ANY APPEARANCE BEFORE HER OR FILING OF ANY WRITTEN SUBMISSION, SHE CONFIRMED THE ADDITION MADE BY THE AO ON ACCOUNT OF INCOME FROM UNEXPLAINED SOURCES AT RS.11,91,000/ - AND THEREBY DISMISSED THE APPEAL FILED BY THE ASSESSEE. 4. AGAINST THE ORDER OF THE CIT(A) THE ASSESSEE IS IN APP EAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS : 1. APPELLANT PRAYS TO DECLARE THAT ASSESSMENT ORDER AND ASSESSMENT PROCEEDINGS ARE BAD IN LAW FOR NON-SUPPLY OF REASONS RE CORDED AS REQUESTED. 2. HONBLE CIT(A) HAS ERRED IN DISMISSING THE APPEAL EX PARTE BY ORDER DATED 11-04-2016 ALLEGING THAT ASSESSEE HAS NOT ATTEND ON 31-08-2015, CIT(A) PASS ORDER AFTER 7 MONTHS WITHOUT F URTHER OPPORTUNITY; SAME IS BAD IN LAW. 3. WITHOUT PREJUDICE TO GROUND NO.2, CIT(A)S ORDER MAY PLEASE BE SET ASIDE. 4. CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.11,9 1,600/- SAME MAY PLEASE BE DELETED. 5. CIT(A) HAS ERRED IN NOT ADJUDICATING THE GROUND O F VALIDITY OF ASSESSMENT ORDER AND PROCEEDINGS U/S.148. 6. APPELLANT PRAYS FOR JUST AND EQUITABLE RELIEF. 7. APPELLANT PRAYS TO CANCELLATION OF INTEREST CHARGE D U/S.234A, 234B, C ETC. 8. APPELLANT PRAYS TO ADD, ALTER, AMEND, CLARIFY, MO DIFY, TAKE ADDITIONAL GROUND/S AND/OR WITHDRAW THE GROUND/S DURING APPELLAT E PROCEEDINGS. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON THE APPOIN TED DATE HE WAS VERY MUCH PRESENT IN THE OFFICE OF THE CIT(A) BUT THE LD.CIT(A) WAS NOT PRESENT. FURTHER, THE CIT(A) HAS DISMISSE D THE 3 ITA NO.1492/PN/2016 APPEAL BY ISSUING ONLY ONE NOTICE AND NO PROPER OPPORTU NITY HAS BEEN GIVEN TO THE ASSESSEE. NON GIVING OF OPPORTUNITY IS AGAINS T THE PRINCIPLE OF NATURAL JUSTICE. HE ACCORDINGLY SUBMITTED THAT THE OR DER OF THE CIT(A) BE SET ASIDE AND THE GROUNDS RAISED BY THE ASSES SEE BE ALLOWED. IN HIS ALTERNATE CONTENTION, HE SUBMITTED THAT THE MATT ER MAY BE RESTORED TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL EXPEDITIOUSLY. 6. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND WHILE SUPPORTING THE ORDER OF THE CIT(A) SUBMITTED THAT DESPIT E NOTICE ISSUED BY THE CIT(A) FOR HEARING OF THE APPEAL, ASSESSEE WAS NOT PRESENT. THEREFORE, THE CIT(A) WAS CONSTRAINED TO PASS AN EXPARTE ORDER. HE HOWEVER SUBMITTED THAT HE HAS NO OBJECTION IF THE MATTE R IS SET ASIDE TO THE FILE OF THE CIT(A). 7. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIO US DECISIONS CITED BEFORE ME. IN THIS CASE, THE AO HAD MADE ADDITION O F RS.11,91,000/- ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE SA VINGS BANK ACCOUNT MAINTAINED WITH CANARA BANK. I FIND IN APPEA L THE LD.CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE AND UPH ELD THE ADDITION MADE BY THE AO IN THE EXPARTE ORDER PASSED BY HER FOR NON- APPEARANCE OF THE ASSESSEE. FROM THE APPEAL ORDER ITSE LF, IT IS SEEN THAT THE LD.CIT(A) HAS GIVEN ONLY ONE OPPORTUNITY TO THE ASSE SSEE. IT IS ALSO THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT H E WAS VERY MUCH PRESENT ON THE APPOINTED DATE BUT THE LD.CIT(A) WA S NOT PRESENT AND THEREAFTER SHE PASSED AN EXPARTE ORDER WITHOUT A FFORDING ANY FURTHER OPPORTUNITY TO THE ASSESSEE. CONSIDERING THE T OTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM I T PROPER TO 4 ITA NO.1492/PN/2016 RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTIO N TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS C ASE. THE REQUEST OF THE ASSESSEE THAT A DIRECTION MAY BE GIVEN TO THE L D.CIT(A) TO DECIDE THE APPEAL EXPEDITIOUSLY IS ALSO ACCEPTED AND THE LD.CIT(A ) IS DIRECTED TO DISPOSE OF THE APPEAL PREFERABLY WITHIN A PERIOD OF 4 MO NTHS FROM THE DATE OF THE ORDER RECEIVED BY HER OFFICE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE CIT(A) ON THE APPOINTED DATE WITHOUT SEEKING ANY ADJOURNMENT. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEA RING ITSELF, I.E. ON 07-09-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED : 07 TH SEPTEMBER, 2016. '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // // $ % / TRUE COPY // &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - 3, PUNE 4. THE CIT-3, PUNE 5. $ %%* , * , SMC BENCH / DR, ITAT, SMC BENCH PUNE; 6. 2 / GUARD FILE.