Mayur Impex, Surat V. The ACIT, Circle-8, Surat

ITA 1651/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0123 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 03-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 05-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Keywords: Unexplained investment; Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO. 1651/AHD/2013 / ASSESSMENT YEAR : 2009-10 MAYUR IMPEX, PLOT NO.9, BHALCHANDRA NAGAR SOCIETY, KATARGAM, SINGANPORE ROAD, SURAT-395004 PAN : AAPFM 1881 J VS ACIT, CIRCLE-8, SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI VILAS V. SHINDE, SR DR / DATE OF HEARING : 03/11/2016 / DATE OF PRONOUNCEMENT: 03/11/2016 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- \ THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-V, SUR AT DATED 19.04.2013 FOR ASSESSMENT YEAR 2009-10. 2. AT THE TIME OF HEARING, NONE APPEARED FOR THE AS SESSEE. HOWEVER, THE FACTS AND PROPOSITION OF THE ASSESSEE ARE CLEAR FRO M THE RECORD; THEREFORE, THE APPEAL IS BEING DECIDED EX-PARTE QUA THE ASSESSEE. 3. THE LD. CIT(A) HAS PASSED AN EX-PARTE ORDER, HOLDING THAT THE ASSESSEE- PARTNERSHIP FIRM DID NOT PRODUCE THE INCOME-TAX RET URN OF PARTNERS FOR AY 2009-10. THE ASSESSEE IN STATEMENT OF FACTS BEFORE THE LD. CIT(A) HAS STATED THE FOLLOWING FACTS:- BECAUSE OF PARTNERS HAS NOT FILED THE RETURN FOR A Y 2008-09, THE AO HAS MADE THE ADDITION OF THE OPENING BALANCES OF PARTNE RS RS.1,79,000/-. THE PARTNER SHRI HARESH D. SAVANIS RETURN FOR THE AY 2 009-10 IS SUBMITTED ITA NO. 1651/AHD/2013 MAYUR IMPEX VS. ACIT AY : 2009-10 2 DURING THE ASSESSMENT PROCEEDINGS AND THE PARTNER M AYUR MANGUKIYA HAS NOT FILED THE RETURN FOR THE AY 2009-10, AO HAS MAD E ADDITION OF RS.1,30,500/- CAPITAL INTRODUCED DURING THE AY 2009 -10. 4. THUS, ACCORDING TO ASSESSEE, THE RETURN OF INCOM E FOR AY 2009-10 FOR THE PARTNER SHRI HARESH SAVANI WAS ALREADY FILED AN D IN CASE OF SHRI MAYUR MANGUKIYA, THE RETURN FOR AY 2009-10 WAS NOT FILED WHICH IMPLIES THAT EARLIER RETURNS WERE FILED BY HIM. THESE STATEMENT S OF FACTS HAVE NOT BEEN CONSIDERED AND AOS REMAND REPORT ALSO SEEMS TO BE NOT BASED ON APPRECIATION OF THESE FACTS. IT IS NOT DISPUTED TH AT THE FIRM HAS BEEN HELD TO BE GENUINE. IT IS SETTLED LAW THAT IN CASE OF FIRM WHICH IS FOUND TO BE GENUINE, THE CAPITAL INTRODUCED BY PARTNERS CANNOT BE ADDED IN THE HANDS OF FIRM AND THE SAME CAN BE EXAMINED IN THE HANDS OF P ARTNERS. SINCE THE FACTS REPRESENTED BY THE ASSESSEE HAVE NOT BEEN APPRECIAT ED AND THE CAPITAL OF THE PARTNERS HAVE BEEN ADDED IN THE HANDS OF THE FIRM A S UNEXPLAINED INVESTMENT, IT IS DESIRABLE THAT THE MATTER BE SET ASIDE AND RESTORED BACK TO THE FILE OF LD. AO TO APPRECIATE ALL THE RELEVANT F ACTS AS IN THE CASE OF FIRM THE AO HAVING JURISDICTION OVER THE FIRM ORDINARILY HAS JURISDICTION OVER THE PARTNERS ALSO. IN VIEW OF THE ENTIRETY OF FACTS AN D CIRCUMSTANCES, WE DEEM IT PROPER TO REMIT THE ISSUE BACK TO THE FILE OF LD. A O TO DECIDE THE ISSUE AFRESH AFTER PERUSING THE RECORD AND RELEVANT FACTS AND AF TER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 3 RD NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- (PRADIP KUMAR KEDIA) ACCOUNTANT MEMBER (R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 03/11/2016 *BIJU T., SR. PS ITA NO. 1651/AHD/2013 MAYUR IMPEX VS. ACIT AY : 2009-10 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD