Toshniwal Anil Kumar , Hyderabad V. Income Tax Officer, Ward-5(3), Hyderabad

ITA 1561/Hyd/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8230 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 15-07-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 17-07-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Assessee Lawyers: K A SAI PRASAD
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH SMC, HYDERABAD BEFORE SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER ITA NO.1561/HYD/2018 ASSESSMENT YEAR: 20 14 - 15 TOSHNIWAL ANILKUMAR, H.NO.4 - 4 - 1, DILSHAD PLAZA, SULTAN BAZAR, HYDERABAD. PAN: AAAHT 8114 Q VS. INCOME TAX OFFICER, WARD - 5(3), HYDERABAD. (APPELLANT) (RESPONDENT) ITA NO.1562/HYD/2018 ASSESSMENT YEAR: 2014 - 15 OMPRAKASH TOSHNIWAL, H.NO.4 - 4 - 1, DILSHAD PLAZA, SULTAN BAZAR, HYDERABAD. PAN: ABIPT 9001 D VS. INCOME TAX OFFICER, WARD - 5(3), HYDERABAD. (APPELLANT) (RESPONDENT) ITA NO. 1563 /HYD/20 18 ASSESSMENT YEAR: 20 14 - 15 MAYUR TOSHNIWAL, H.NO.4 - 4 - 1, DILSHAD PLAZA, SULTAN BAZAR, HYDERABAD. PAN: ALBPT 7086 K VS. INCOME TAX OFFICER, WARD - 5(3), HYDERABAD. (APPELLANT) (RESPONDENT) ITA NO . 1564 /HYD/20 18 ASSESSMENT YEAR: 20 14 - 15 TOSHNIWAL RAJ KUMAR, H.NO.4 - 4 - 1, DILSHAD PLAZA, SULTAN BAZAR, HYDERABAD. PAN: AAAHT 8132 N VS. INCOME TAX OFFICER, WARD - 5(3), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI K.A. SAI PRASAD 2 REVENUE BY: SRI NILANJAN DEY, DR DATE OF HEARING: 15/07/2019 DATE OF PRONOUNCEMENT: 17 /07/2019 ORDER PER A. MOHAN ALANKAMONY, AM.: ALL THE 4 CAPTIONED APPEALS ARE FILED BY THE ASSESSEES AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A) - 4, HYDERABAD DATED 1 1 /05/2018 IN APPEAL NOS.0361 , 0365/2018 - 19, HYDERABAD AND DATED 10/05/2018 IN APPEAL NOS. 0362, 0372 /2018 - 19 PASSED U/S. 143(3) & 250(6) OF THE ACT FOR THE ASST. YEAR 2 014 - 15. SINCE THE ASSESSEES HAVE RAISED IDENTICAL GROUNDS IN ALL THESE APPEALS, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED AND HEARD TOGETHER AND DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. IN ALL THE SE APPEALS, THE ASSESSEES HAVE RAISED IDENTICAL GROUNDS AND THEY ARE EXTRACTED HEREIN BELOW FOR REFERENCE : - 1. THE ORDER OF THE LD FIRST APPELLATE AUTHORITY IS NOT CORRECT EITHER IN LAW OR ON FACTS AND IN BOTH. 2. THE LD FIRST APPELLATE AUTHORITY IS NOT JUSTIFIED IN NOT GIVING APPROPRIATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 3. THE LD FIRST APPELLATE AUTHORITY IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 13,97,296/ - AS UNEXPLAINED INCOME FROM OTHER SOURCES OF THE IT ACT. 4. THE LD FIRST APPELLATE AUTHORITY FAILED TO APPRECIATE THE FACT THAT ALL THE INGREDIENTS / CONDITIONS LAID DOWN FOR CLAIMING EXEMPTION U/S. 10(38) OF THE IT ACT WERE FULFILLED BEFORE THE ASSESSING OFFICER. HENCE, THE DENIAL OF EXEMPTION U/S. 10(38) IS NOT JUSTIFIED. 5. THE LD FIRST APPELLATE AUTHORITY FAILED TO ADJUDICATE THE CASE ON MERITS. 6. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEARING OF APPEAL. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER S WITHOUT AFFORDING AN OPPORTUNITY TO THE 3 ASSESSEES OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD. CIT (A) IN THE CASE OF ALL THESE ASSESSEES FOR FRESH CONSIDERATION THERE BY AFFORDING THE ASSESSE E S ONE MORE OPPORTUNITY OF BEING HEARD. THE LD . DR VEHEMENTLY OPPOSED TO THE SUBMISSION OF THE LD . AR AND ARGUED BY STATING THAT THE LD. CIT (A) HAD POSTED THE CASE ON SEVERAL DAYS HOWEVER, NEITHER THE ASSESSEES NOR THEIR LD. AR AP PEARED BEFORE THE LD . CIT (A) IN ORDER TO PURSUE THE CASE. THE LD . DR THEREFORE REQUESTED THAT THE APPEALS OF ALL THE ASSESSEES MAY BE DISMISSED. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON PERUSING THE ORDER OF THE LD. CIT (A) I FIND THAT THE LD. CIT (A) HAS POSTED THE CASE FOR HEARING ON SEVERAL DAYS HOWEVER, NONE APPEARED BEFORE THE LD. CIT (A) , THEREFORE THE LD . CIT (A) HA D LEFT WITH NO OTHER OPTION EXCEPT TO PASS THE EX - PARTE ORDER ON MERITS BASED ON THE M ATERIAL S ON RECORD. IN THESE CIRCUMSTANCES I DO NOT FIND ANY FAULT ON THE PART OF THE LD . CIT (A) AND ANY MERIT IN THE SUBMISSION S OF THE LD. AR. HOWEVER, TAKING A LENIENT VIEW, IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE FILE TO THE LD. CIT (A) TO CONSIDER THE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY TO THE ASSESSEES OF BEING HEARD. AT THE SAME TIME, I ALSO DIRECT THE ASSESSE E S AND THE IR RESPECTIVE REPRESENTATIVES TO PROMPTLY COOPERATE WITH THE LD. CIT (A) IN HIS PROCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL BE AT LIBERTY TO PASS 4 APPROPRIATE ORDERS BASED ON LAW AND MERITS TAKING INTO CONSIDERATION OF THE MATERIALS ON RECORD. 5. IN TH E RESULT, ALL THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. PRONOUNCED IN THE OPEN COURT ON 17 TH JULY, 2019. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED: 17 TH JULY , 2019 OKK COPY TO: - 1) TOSHNIWAL ANIL KUMAR (II) OMPRAKASH TOSHNIWAL (III) MAYUR TOSHNIWAL (IV) TOSHNIWAL RAJKUMAR C/O. CH. PARTHASARATHY & CO., 1 - 1 - 298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST. NO.1, ASHOK NAGAR, HYDERABAD 500 020. 2) THE INCOME TAX OFFICER, WARD - 5(3), R.NO.512, 5 TH FLOOR, AC GUARDS, MASAB TANK, HYDERABAD - 500004. 3) THE CIT(A) - 4, HYDERABAD 4) THE PR. CIT - 4, HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE