Shri Mehulkumar Pravinkumar Barot, Gandhinagar V. The Income Tax Officer, Ward-3, Gandhinagar

ITA 158/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8137 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 19-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Keywords: Principle of natural justice; Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO.158/AHD/2017 ( / ASSESSMENT YEAR : 2012-13) SHRI MEHULKUMAR PRAVINKUMAR BAROT PLOT NO.423/2, SECTOR-12, GANDHINAGAR-382 012 / VS. THE ITO WARD-3, GANDHINAGAR ' ./ ./ PAN/GIR NO. : AELPB 9202 N ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '%( / APPELLANT BY : -NONE- &''%)( / RESPONDENT BY : SHRI RAJESH MEENA SR.DR *+), / DATE OF HEARING 06/06/2018 -./0), / DATE OF PRONOUNCEMENT 11/ 06 /2018 / O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL HAS BEEN FILED BEFORE US AGAINST THE ORDER DATED 17.10.2016 PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS), GANDHINAGAR, AHMEDABAD [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2012 -13 ARISING OUT OF THE ORDER DATED 30.03.2015 PASSED BY THE INCOME TAX OFFICER, WARD- 3, GANDHINAGAR WITH THE FOLLOWING GROUNDS:- 1.1. THE ORDER PASSED U/S.250 ON 17.10.2016 FOR A.Y. 201 2-13 BY CIT(A)- GNR, ABAD UPHOLDING THE ADDITION/DISALLOWANCES OF R S.16,32,170/- MADE BY AO IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE P RINCIPLES OF NATURAL JUSTICE. 1.2. THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE REPRESENTATIONS MADE BY THE APP WITH REGARD TO APPOINTMENT OF A PROPER REPRESENTATIVE. ITA NO.158/AHD/ 2017 SHRI MEHULKUMAR PRAVINKUMAR BAROT VS. ASST.YEAR 2012-13 - 2 - 1.3. THE LD.CIT(A) HAS FAILED TO APPRECIATE THAT THE APP ELLANT WAS IN FINANCIAL CRUNCH HAD THEREFORE HE COULD NTO PUT HIS CASE NEIT HER BEFORE THE AO NOR BEFORE THE CIT(A). THE APPELLANT HAD REQUESTED BOT H THE LOWER AUTHORITIES TO GRANT SUFFICIENT TIME TO APPOINT A PROPER CONSUL TANT. HOWEVER, NO SUFFICIENT TIME WAS GRANTED. THEREFORE, AT THIS JU NCTURE, THE APP MAY PLEASE BE ALLOWED TO FURNISH ADDITIONAL EVIDENCES. 2.1. THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE @ OF 30% OF ENTIRE EXPENDITURE BEING R S.98,23,170/-. 2.2. THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE DIS ALLOWANCE OF RS.9,23,170/- BEING 30% OF TOTAL EXPENDITURE OF RS.30,77,249/- WI THOUT CONSIDERING THE NATURE OF BUSINESS AND VOLUME OF TRANSACTION. 3.1. THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.7,09,000/- BEING UNSECURED LOANS. 3.2. THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE ADD ITION OF RS.7,09,000/- OF SECURED LOANS WITHOUT CONSIDERING THE FACTS OF THE CASE AND TRANSACTIONS MADE WITH THE IMPUGNED PARTIES. 2. NONE APPEARED ON BEHALF OF ASSESSE-APPELLANT. HOWEVER, AN ADJOURNMENT APPLICATION DATED 04.06.2018 WAS FILED SEEKING TIME ON BEHALF OF THE ASSESSEE WHICH IS DISMISSED DEVOID OF ANY MERIT. THE ASSESSEE SUBMIT TED THAT HE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER (AO) NEITHER COULD APPOINT A CONSULTANT TO REPRESENT THE CASE BEFORE THE AO AND, THEREFORE, PRAYED FOR SUFFICIENT TIME TO APPOINT AN APPROPRIATE COUNSEL TO ATTEND THE CASE. HOWEVER, THE REQUEST MADE BY THE ASSESSEE WAS NOT CONSIDERED BY THE AO AND ADDITION OF RS.7,09,000/- AS UNSECURED LOANS AND RS.9,23,170/- TOWARDS 30% OF EXPENDITURE WAS MADE T O THE INCOME OF THE ASSESSEE. 3. APPEAL WAS PREFERRED AGAINST THE SAID ORDER BY THE ASSESSEE BEFORE THE LD.CIT(A) WHO HOWEVER PASSED AN EX-PARTE ORDER CONFIRMING THE ORDER PASSED BY THE AO WHICH IS IMPUGNED BEFORE US. THE ASSESSEE FURTHER PRAYED F OR RESTORING THE MATTER TO THE FILE OF THE AO TO CONSIDER THE ISSUES AFRESH UPON GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO.158/AHD/ 2017 SHRI MEHULKUMAR PRAVINKUMAR BAROT VS. ASST.YEAR 2012-13 - 3 - 4. THE LD.DR RELIED UPON THE ORDERS PASSED BY THE A UTHORITIES BELOW. 5. WE HAVE HEARD THE LD.DR AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT APPEARS THAT THE AO ISSUED SHOW-CAUSE NOTICE UPO N THE ASSESSEE WHICH WAS NOT REPLIED TO. THE AO PASSED THE ASSESSMENT ORDER EX- PARTE IN THE ABSENCE OF REQUIRED DOCUMENT BEING THE ADDRESS, NAME, PAN ALONG WITH CO NFIRMATION AND CONTRA ACCOUNT IN RESPECT OF THE CLAIM MADE BY THE ASSESSEE WHICH WAS FURTHER AFFIRMED BY THE LD.CIT(A) EX-PARTE. 6. WE, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUES I N DISPUTE AND RESTORE THE MATTER TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER GIVI NG THE ASSESSEE A PROPER OPPORTUNITY OF HEARING AND UPON TAKING INTO CONSIDERATION OF THE E NTIRE EVIDENCE ALREADY AVAILABLE ON RECORD AS WELL AS OTHER DOCUMENTARY EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE IN SUPPORT OF THE CLAIM ON THE ISSUES. 7. IN THE RESULT, THE APPEAL PREFERRED BY THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 11/ 06 /2018 SD/- SD/- ( ) ( ) ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/ 06 /2018 2,..*,.*../ T.C. NAIR, SR. PS ITA NO.158/AHD/ 2017 SHRI MEHULKUMAR PRAVINKUMAR BAROT VS. ASST.YEAR 2012-13 - 4 - !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 34 5 / CONCERNED CIT 4. 5 ( ) / THE CIT(A)-GANDHINAGAR, AHMEDABAD 5. 89:&*4 , ,40 , 3 / DR, ITAT, AHMEDABAD 6. :;<=+ / GUARD FILE. / BY ORDER, '8& //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 6.6.18 (DICTATION-PAD 7-P AGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 6.6.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.11.6.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11.6.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER