Kamal Kishor Kapuria(HUF), Surat V. The Income tax Officer,Ward-3(3), Surat

ITA 175/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6188 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-05-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 10-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R N VEPARI
• Keywords: Opportunity of being heard; Set aside
• Section: 80HHC; 144; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD CAMP AT SURAT (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI D.C. AGRAWAL, A.M.) I.T.A. NO. 175/AHD./2008 ASSESSMENT YEAR : 2004-2005 KAMAL KISHOR KAPURIA (HUF), SURAT -VS.- INCOME T AX OFFICER, WARD-3(3), SURAT (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.N. VEPARI RESPONDENT BY : SHRI SANJEEV KASHYAP , SR. D.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 23.10.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-II, SURAT FOR T HE ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED THE FACTS ARE THAT FOR THE ASSESS MENT YEAR UNDER APPEAL, THE ASSESSEE-HUF FILED THE RETURN OF INCOME ON 24.03.05 DECLARING TO TAL INCOME OF RS.1,08,240/-. THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 144 ON 22.12.2006, WHEREIN HE ASSESSED THE TOTAL INCOME AT RS.45,39,740/-. IN THIS ASSESSMENT ORDER, HE MADE THE FOLLOWING ADDITIONS/ DISALLOWANCES :- (I) ADDITION ON ACCOUNT OF G.P. RS.15,05,212/- (II) CASH CREDIT U/S. 68 RS.22,94,031/- (III) UNEXPLAINED CAPITAL RS. 6,32,452/- (IV) DISALLOWANCE OF DEDUCTION U/S. 80HHC OF THE I.T. ACT. 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LD. CIT(A) UPHELD THE ACTION OF ASSESSING OFFICER. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 2 ITA NO. 175/AHD/2008 4. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF A SSESSEE SHRI R.N. VEPARI APPEARED AND CONTENDED THAT THE ASSESSING OFFICER FRAMED THE ASS ESSMENT UNDER SECTION 144 WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE VIDE LETTER DATED 11.12.2006 FURNISHED VARIOUS DETAILS/ EXPLANATIONS. THESE WERE NOT CONSIDERED BY THE ASSE SSING OFFICER WHILE FRAMING THE ASSESSMENT UNDER SECTION 144 ON 22.12.2006. IN SUPPORT OF THIS CONTENTION, LD. COUNSEL OF THE ASSESSEE PRODUCED A PHOTOCOPY OF LETTER DATED 11.12.2006 ADD RESSED TO ASSESSING OFFICER, WHICH ALSO BEARS THE SIGNATURE OF ASSESSING OFFICER. HE ACCORD INGLY SUBMITTED THAT THE IMPUGNED ORDER OF LD. CIT(A) BE SET ASIDE AND THE MATTER BE RESTORED TO T HE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT ASSESSING OFFICER SHOULD RE-ADJUDICATE THE VAR IOUS ADDITIONS CONTESTED IN THIS APPEAL AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 5. ON THE OTHER HAND, ON BEHALF OF REVENUE SHRI SAN JEEV KASHYAP, SR. D.R. APPEARED AND POINTED OUT THAT THE LETTER DATED 11.12.2006 ADDRES SED TO ASSESSING OFFICER BEARS SAME SIGNATURE. NO DATE IS MENTIONED IN THAT LETTER, THEREFORE, IT CANNOT BE SAID THAT THE SAID LETTER WAS GIVEN TO ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS. AS AGAINST THIS, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT SIGNATURE ON THE LET TER IS VERIFIABLE. HE FURTHER SUBMITTED THAT NO PREJUDICE IS CAUSED TO THE REVENUE IF ASSESSING OFF ICER IS DIRECTED TO EXAMINE THE EXPLANATION/ DOCUMENTS PLACED BEFORE HIM DURING THE COURSE OF AS SESSMENT PROCEEDINGS. 6. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND PERUSED THE MATERIAL PLACED BEFORE US. IN THE ASSESSMENT ORDER FRAMED UNDER SECTION 144 ON 22.12.2006, THE ASSESSING OFFICER MADE (I) T HE ADDITION ON ACCOUNT OF G.P. OF RS.15,05,212/-, (II) ADDITION ON ACCOUNT OF CASH C REDIT U/S. 68 OF RS.22,94,031/-, (III) ADDITION ON ACCOUNT OF UNEXPLAINED CAPITAL OF RS. 6,32,452/- A ND ALSO DENIED THE DEDUCTION U/S. 80HHC OF THE I.T. ACT. PRIMA FACIE, IT APPEARS THAT BEFORE T HE ASSESSING OFFICER, THE ASSESSEE FURNISHED EXPLANATION BY LETTER DATED 11.12.2006. THIS WAS NO T CONSIDERED BY THE ASSESSING OFFICER. BY CONSIDERING THE TOTALITY OF THE FACTS, IN OUR OPINI ON, IT WILL MEET THE END OF JUSTICE, IF THE ORDER O F ASSESSING OFFICER IS SET ASIDE AND THE MATTER IS RE STORED TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT ASSESSING OFFICER WILL CONSIDER THE SUBMISSIONS MADE BY THE ASSESSEE VIDE LETTER DATED 11.12.2006 AND RE-DECIDE THE VARIOUS ADDITION S/ DISALLOWANCES CONTESTED IN THIS APPEAL AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. THE ASSESSEE IS ALSO AT 3 ITA NO. 175/AHD/2008 LIBERTY TO FURNISH ALL THE DETAILS AND DOCUMENTS/ B OOKS OF ACCOUNTS AND ASSESSING OFFICER IS FREE TO EXAMINE/ SCRUTINIZE THE SAME AND CALL FURTHER IN FORMATION/ DOCUMENTS/ EVIDENCES, ETC. IF REQUIRES. 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 21.05.2010 . SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21 / 05 /2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.