Sunil Maganlal Patel, Pune V. Income-tax Officer, Ward - 13 (3), Pune

ITA 1573/PUN/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8125 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 07-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARAT DEORAJ SH E G AONKAR
• Keywords: Opportunity of being heard; Principle of natural justice; Source of fund; Additional evidence; Set aside
• Section: 143(3); 143(1); 68

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . / ITA NO.1573/PUN/2019 / ASSESSMENT YEAR : 2016-17 SUNIL MAGANLAL PATEL, 578/2B, AAYKAR SADAN, 5 TH FLOOR, ROOM NO.511 & 512, SALISBURY PARK, GULTEKDI, PUNE. PAN : AKSPP6310N. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 13(3), PUNE. . / RESPONDENT ASSESSEE BY : NONE. REVENUE BY : SHRI BHARAT DEORAJ SHEGAONKAR / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), PUNE 5, PUNE DATED 20.06.2019 FOR A.Y. 2016-17. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL AND STATED TO BE RUNNING A PRO PRIETARY CONCERN IN THE NAME AND STYLE OF SUNIL M. PATEL WHICH WAS E NGAGED IN THE BUSINESS OF TRADING OF BOOKS. ASSESSEE ELECTRONICALLY FILED HIS RETURN OF INCOME FOR A.Y. 2016-17 ON 04.08.2016 DECLARING TOTAL INCOM E AT / DATE OF HEARING : 22.01.2020 / DATE OF PRONOUNCEMENT: 22.01.2020 2 RS.4,77,990/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT ACCEPTING THE RETURN OF INCOME FILED BY THE ASSESSEE. THEREAFTER, T HE ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DATED 31 .12.2018 AND THE TOTAL INCOME WAS DETERMINED AT RS.17,30,400/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VID E ORDER DATED 20.06.2019 (IN APPEAL NO.PN/CIT(A)-5/ITO, WARD 13(3), PUNE/10206/2018-19) DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL AND HAS R AISED THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN PASSING THE APPELLATE O RDER IN GROSS VIOLATIONS OF 'PRINCIPLE OF NATURAL JUSTICE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD CIT(A) ERRED IN PASSING THE ORDER EX-PARTE WITHOUT ALLOWING THE APPELLANT A PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD AN D HENCE, THE IMPUGNED ORDER PASSED REQUIRES TO BE SET ASIDE/CANCELLED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE ACTION OF THE LD CIT(A) OF NOT PROVIDING PROPER OPPORTUNITY O F BEING HEARD AND DISMISSING THE APPEAL 011 THE BASIS THAT NO REPRESE NTATION HAS BEEN MADE BY THE ASSESSEE, DESPITE THE FACT THAT AN ADJOURNME NT APPLICATION DATED 03RD JUNE 2019 HAS BEEN FILED AND IS AVAILABLE ON R ECORD. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL ON THE TECHNICAL GROUND THAT WHILE FILING THE APPEAL IN FORM 35 THE ORIGINAL NOT ICE OF DEMAND AS IS REQUIRED BY THE I T. RULE NO. 45, HAS NOT BEEN SUBM ITTED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE ACTION OF THE ASSESSING OFFICER IN TREATING THE PAYMENT MADE TO C ITY REALTY & DEVELOPMENT PVT LTD OF RS. 17,30,400 FROM UNEXPLAIN ED SOURCES OF INCOME IN TERMS OF SECTION 68 OF THE ACT IS UNJUST, ILLOGI CAL AND ARBITRARY. 6. THE APPELLANT MUST BE PROVIDED REASONABLE OPPORT UNITY OF BEING HEARD TO PROVIDE ADDITIONAL EVIDENCES IN SUPPORT OF HIS CONT ENTION THAT THE AMOUNT PAID OF RS.17,30,400/- IS FROM THE GENUINE SOURCE. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETH ER. 4. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED. I THEREFORE PROCEED TO DISPOSE OF 3 THE APPEAL EX-PARTE QUA THE ASSESSEE BASED ON THE MA TERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD.D.R. 5. BEFORE ME, LD. D.R. SUPPORTED THE ORDER OF LOWER AUTHORITIES. 6. I HAVE HEARD THE LD. D.R. AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE IS AGGRIEVED BY THE ADDITION OF RS.17,30,400/- ON ACCOUNT OF CASH DEPOSITS FROM UNEXPLAINED SOURCES U/S 68 OF THE ACT . THE PERUSAL OF THE ORDER OF LD.CIT(A) REVEALS THAT LD.CIT(A) HAS PASSED AN EX-PARTE ORDER WITHOUT DECIDING THE ISSUE ON MERITS. I N VIEW OF THE WELL SETTLED PRINCIPLE OF NATURAL JUSTICE THAT SUFFICIENT OPPORTUNITY OF HEARING SHO ULD BE AFFORDED TO THE PARTIES AND NO PARTY SHOULD BE CONDEMNED UNHEA RD, I AM OF THE VIEW THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSE SSEE TO PRESENT ITS CASE BEFORE THE AUTHORITIES. I THEREFORE RESTORE THE MA TTER BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE W ITH LAW. NEEDLESS TO STATE THAT LD.CIT(A) SHALL GRANT ADEQUATE OP PORTUNITY OF HEARING TO BOTH THE PARTIES. IN VIEW OF MY DECISION TO RES TORE THE ISSUE TO LD.CIT(A), I AM NOT ADJUDICATING ON MERITS THE GROUNDS OF T HE APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 22 ND DAY OF JANUARY, 2020. SD/- - ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 22 ND JANUARY, 2020. YAMINI 4 #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A), PUNE 5, PUNE. PR. CIT, PUNE 4, PUNE. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // 012%3&4 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.