Monikaben Kamleshbhai Gujjar, Ahmedabad V. The Income Tax Officer, Ward-12(1), Ahmedabad

ITA 1667/AHD/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4533 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-08-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 20-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ I.T.A. NO. 1667/AHD/2016 ( / ASSESSMENT YEAR : 2011-12) MONIKABEN KAMLESHBHAI GAJJAR A-10, NARAYAN BUNGALOWS NR.VISHWAKARMA MANDIR NR.SANGATH-2 GANDHINAGAR HIGHWAY AHMEDABAD 380 005 / VS. THE INCOME TAX OFFICER WARD-12(1) AHMEDABAD ./ ./ PAN/GIR NO. : AEDPG 8098 M ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S.N. DIVATIA, AR / RESPONDENT BY : SHRI ANAND KUMAR, SR.DR ! / DATE OF HEARING 26/08/2019 '#$% ! / DATE OF PRONOUNCEMENT 27/08/2019 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE O RDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-6, AHMEDABAD [CIT(A) IN SHORT] DATED 22/03/2016 PASSED FOR ASSESSMENT YEAR (AY) 2011-12. ITA NO.1667 /AH D/2016 MONIKABEN KAMLESHBHAI GAJJAR VS. ITO ASST.YEAR 2011-12 - 2 - 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: 1.1 THE ORDER PASSED U/S.250 ON 22/03/2016 FOR A.Y. 201 1-12 BY CIT(A)-6 ABAD, UPHOLDING ADDITIONS/DISALLOWANCES OF RS.32,72,050 MADE BY AO IS WHOLLY ILLEGAL, UNLAWFU L AND AGAINST THE PRINCIPLES 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 EXPLANATIONS FUR NISHED AND THE EVIDENCE AVAILABLE ON RECORD. 1.3. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THERE WAS SUFFICIENT CAUSE FOR FAILURE TO ATTEND /FURNISH DETAILS BEFORE THE APPELLATE AUTHORITY SO THAT THE IMPUGNED ORDER SHOULD NOT HAV E BEEN PASSED EX-PARTE AND IN NON-SPEAKING MANNER. THE APP ELLANT SHOULD THEREFORE BE ALLOWED TO PRODUCE ADDITIONAL E VIDENCE DURING THE COURSE OF APPELLATE PROCEEDINGS AND SHOU LD BE ADMITTED. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN UPHOLDING FOLLOWING ADDITIONS/DISALLOWANCES: (A) UNEXPLAINED CASH CREDIT RS. 10,41,700 (B) INTEREST EXPS. RS. 41,342 (C) UNEXPLAINED CAPITAL R S.12,70,498 (D) GP ADDITION RS. 3,79,805 (E) OUT OF ELEC. CHARGES R S. 5,38,705 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE ID. CIT(A) HAS GRIEVOUSLY ERRED IN CONFIRMING A BOVE SAID ADDITIONS/DISALLOWANCES. 3.1 THE ID. CIT(A) HAS GRIEVOUSLY ERRED IN UPHOLDI NG MULTIPLE ADDITIONS/DISALLOWANCES WHEN THE BOOKS OF ACCOUNTS WERE REJECTED SO THAT THE INCOME SHOULD HAVE BEEN ASSESS ED IN HOLISTIC ITA NO.1667 /AH D/2016 MONIKABEN KAMLESHBHAI GAJJAR VS. ITO ASST.YEAR 2011-12 - 3 - MANNER BY TELESCOPING THEM INSTEAD OF SEPARATE ADDITIONS/DISALLOWANCES. 4.1 WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTE RNATIVE, THE LD. AO HAS MADE MULTIPLE ADDITIONS/DISALLOWANCES SO THAT T HE SAME DESERVES TO BE DELETED OR REDUCED. IT IS THEREFORE PRAYED THAT THE DISALLOWANCE/ADDITI ONS OF RS.32,72,050 MADE BY THE AO AND CONFIRMED BY CIT(A) SHOULD BE DELETED. 3. AT THE OUTSET, LD.COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE LD.CIT(A) HAD DISMISSED THE APPEAL EX-PARTE TO THE ASSESSEE. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE I NTEREST OF JUSTICE ASSESSEE SHOULD BE GIVEN OPPORTUNITY OF HEARING. A N AFFIDAVIT DATED 06/07/2019 BY THE ASSESSEE IS ALSO FILED. 4. THE LD.DR OPPOSED THE SUBMISSIONS OF THE LD.COUN SEL FOR THE ASSESSEE AND SUPPORTED THE ORDERS OF THE AUTHORITIE S BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MA TERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. CONSIDERING THE SUBMISSIONS MADE IN THE AFFIDAVIT A ND THE FACTS OF THE CASE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND R ESTORE ALL THE GROUNDS BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE CASE AF RESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. ITA NO.1667 /AH D/2016 MONIKABEN KAMLESHBHAI GAJJAR VS. ITO ASST.YEAR 2011-12 - 4 - 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 27 TH AUGUST-2019 AT AHMEDABAD. SD/- SD/- ( WASEEM AHMED) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/ 08 /2019 (!.., .*../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. +,- . / CONCERNED CIT 4. . ( ) / THE CIT(A)-6, AHMEDABAD 5. 123 * *,- , ! ,-% , + / DR, ITAT, AHMEDABAD 6. 356 7 / GUARD FILE. / BY ORDER, 1 * //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 26.8.2019 (DICTATION-PAD 4 -PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..26.8.2019 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.27.8.19 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.8.19 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