Shri Bharatbhai H. Kakadiya, Surat V. The Income Tax Officer, Ward-1(1)(4), Surat

ITA 173/AHD/2017

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0589 (ITAT-SURAT)
• Duration Of Justice: 5 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-09-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 18-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Cost of acquisition; Set aside; Audi alteram partem
• Section: 143(3); 54B; 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकरअपीलसं./ITA No.173/AHD/2017 (Ǔनधा[रणवष[ / Assessment Year: (2012-13) (Physical Court Hearing) Bharatbhai H. Kakadiya, F/2, 603-04, Rushikesh Township, B/h. Sarthana Jakat Naka, Vraj Chowk Road, Varachha, Surat. Vs. The ITO, Ward-1(1)(4), Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ACLPK8864D (Appellant) (Respondent) Assessee by None. Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 29/09/2022 Date of Pronouncement 17/10/2022 आदेश / ORDER PER DR. A. L. SAINI, AM: Captioned appeal filed by assessee, pertaining to Assessment Year (AY) 2012-13, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-4, Surat (in short “ld.CIT(A)”], in Appeal No.CAS- 4/TFR/489/2014-15, dated 26.10.2016 which in turn arises out of an assessment order passed by Assessing Officer under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 27.02.2015. 2. Grounds of appeal raised by assessee are as follows: “1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of assessing officer in making various additions to the income of assessee without providing reasonable opportunity of hearing to assessee. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of assessing officer in disallowing deduction claimed u/s 54B of the IT. Act, 1961 and has erred in treating entire sale consideration amounting to Rs.39,00,000/- as income of assessee without giving any deduction on account of cost of acquisition of land. Page | 2 173/AHD/2017/AY.2012-13 Bharatbhai H. Kakadiya 3. On the facts and circumstances of the case as well as on law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of assessing officer in making addition of Rs.55,79,424/- as bogus purchases. 4. On the facts and circumstances of the case as well as on law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in partly confirming the action of assessing officer in making addition of Rs.56,11,868/- u/s 41(1) of the Act by sustaining addition to the extent of Rs.7,13,763/- u/s 37(1) of IT. Act, 1961. 5. On the facts and circumstances of the case as well as on law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of assessing officer in disallowing Rs.50,85,182/- u/s 40(a)(ia) of the IT Act, 1961. 6. On the facts and circumstances of the case as well as on law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of assessing officer in disallowing Rs.8,00,997/- at the rate of 10% out of various expenses. 7. It is therefore prayed that above addition confirmed by learned Commissioner of Income-tax (Appeals) may please be deleted. 8. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.” 3. None appeared on behalf of the assessee despite issuance of notice of hearing on several occasions. This appeal has been listed for hearing in past, on several times, however assessee did not appear. It means the assessee does not wish to prosecute this appeal. Therefore, we have heard Ld. DR for the Revenue and perused the material available on record. 4. We note that ground no.1 raised by the assessee relates to principle of natural justice, wherein the assessee has mentioned that Ld. CIT(A) has not provided reasonable opportunity of being heard. Not providing reasonable opportunity of hearing is against the principle of audi alteram partem (the right to be heard). We note that aim of natural justice, is to secure the justice. 5. Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the ld. CIT(A). We note that it is settled law that principles of natural justice and fair Page | 3 173/AHD/2017/AY.2012-13 Bharatbhai H. Kakadiya play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Ld. CIT(A) for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 17/10/2022 by placing record on notice board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat Ǒदनांक/ Date: 17/10/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat