Shri Nilesh Ashok Nandwana, Vapi V. The ACIT, Vapi Circle, Vapi

ITA 1779/AHD/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1238 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 17-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH SR D R
• Assessee Lawyers: HARDIK V VORA
• Keywords: Unexplained cash credit; Depreciation; Opportunity of being heard; Additional evidence
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.1779/AHD/2015 ( / ASSESSMENT YEAR : 2010-11) SHRI NILESH ASHOK NANDWANA PROP. M/S.SEA BOX LOGISTICS PLOT NO.121, SILVASSA ROAD GIDC, VAPI / VS. THE ACIT VAPI CIRCLE VAPI ./ ./ PAN/GIR NO. : AARPN 1902 B ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI HARDIK V.VORA, AR #' % $ / RESPONDENT BY : SHRI DINESH SINGH, SR.DR &'( % ) / DATE OF HEARING 17/11/2015 *+, % ) / DATE OF PRONOUNCEMENT 23/11/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-VALSAD [CIT(A) IN SHORT] DATED 28/05/2015 PERTAINING TO ASSESSMENT YEAR (AY) 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEA L:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN NOT ADMITT ING ADDITIONAL EVIDENCES FILED BEFORE IT. ITA NO.1779 /AH D/2015 SHRI NILESH ASHOK NANDWANA VS. ACIT ASST.YEAR 2010-11 - 2 - 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING EX-PARTE ORDER PASSED BY ASSESSING OFFICER. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING ADDITION MADE BY ASSESSING OFFICER OF UNPROVEN CREDITORS OF RS.21 ,70,605/-. 4. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING DISALLOWANCE MADE BY ASSESSING OFFICER ON ACCOUNT OF DEPRECIATIO N OF RS.27,60,850/-. 5. ON THE FACTS AND IN CIRCUMSTANCE OF THE CASE AS WEL L AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING DISALLOWANCE MADE BY ASSESSING OFFICER OF RS.15,96,440/- U/S.40A (2)(B) OF THE ACT. 6. IT IS PRAYED THAT ABOVE ADDITION/DISALLOWANCE MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. 2. AT THE TIME OF HEARING, LD.COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER (AO IN SHORT) IN THE ABSENCE OF THE ASSESSEE U/S.144 R.W.S. 143(3) OF T HE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) VI DE ORDER DATED 26/03/2013. HE SUBMITTED THAT THE DETAILS WERE GIVEN TO THE AUT HORIZED REPRESENTATIVE, BUT DUE TO THE ILLNESS OF THE AUTHO RIZED REPRESENTATIVE, HE COULD NOT APPEAR BEFORE THE AO AND FURNISH THE REQU ISITE DETAILS. WHEN THE APPEAL BEFORE THE LD.CIT(A) WAS FILED, THE DETA ILS WERE FURNISHED BUT THE LD.CIT(A) DECLINED TO ADMIT THE ADDITIONAL EVID ENCES. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE BE GR ANTED AN OPPORTUNITY TO REPRESENT AND PROVE HIS EXPLANATION IN RESPECT OF T HE CASH CREDIT, ETC. 2.1. ON THE CONTRARY, THE LD.SR.DR OPPOSED THE SUBM ISSIONS OF THE LD.COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT FRO M THE RECORDS IT CAN BE ITA NO.1779 /AH D/2015 SHRI NILESH ASHOK NANDWANA VS. ACIT ASST.YEAR 2010-11 - 3 - VERIFIED THAT THE ASSESSEE WAS GRANTED AMPLE OPPORT UNITIES BY THE AO. THE ASSESSEE FAILED TO FURNISH THE REQUISITE DETAIL S AND EVIDENCES. UNDER THESE FACTS, THE ASSESSEE DOES NOT DESERVE ANY RELI EF. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE AO HAD PASSED ORDER U/S.144 R.W.S. 143(3) OF THE ACT. ADMITTEDLY, DURING THE ASSESSMENT PROCEEDINGS THERE WAS NO REPRESENTATION ON BEHALF OF THE ASSESSEE DESPITE TH E AO HAD GIVEN SUFFICIENT OPPORTUNITIES. HOWEVER, BEFORE THE LD.C IT(A) THE ASSESSEE FURNISHED EVIDENCES, I.E. CONFIRMATION OF CREDITORS , DETAILS OF ADDITION MADE IN FIXED ASSETS ALONG WITH ITS PROOF, CONFIRMA TION OF ACCOUNTS FROM SHREE NANDWANA TRANSPORT. THE SAID EVIDENCES WERE NOT ADMITTED BY THE LD.CIT(A) ON THE BASIS THAT THE AO HAD GIVEN SUFFIC IENT OPPORTUNITIES TO THE ASSESSEE. IN THE PRESENT CASE, THE AO HAD MA DE DISALLOWANCE OF RS.21,70,605/- ON ACCOUNT OF UNEXPLAINED CREDITORS, DISALLOWANCE OF RS.4,49,545/- ON ACCOUNT OF FREIGHT INCOME, DISALLO WANCE OF RS.27,60,850/- ON ACCOUNT OF DEPRECIATION CLAIMED O N PURCHASES OF THE TRUCKS, DISALLOWANCE OF RS.15,96,440/- BY INVOKING THE PROVISIONS OF SECTION U/S.40A(2)(B) OF THE ACT AND DISALLOWANCE O F RS.5,329/- ON ACCOUNT OF SERVICE TAX LIABILITY UNPAID. IN SUM AN D SUBSTANCE THE DISALLOWANCES HAVE BEEN MADE ON THE BASIS THAT THE ASSESSEE COULD NOT FURNISH THE EVIDENCE FOR EXPLAINING THE CREDITORS A ND THE ADDITIONS MADE IN THE FIXED ASSETS. THE ASSESSEE HAS FURNISHED TH E EVIDENCES IN THE ITA NO.1779 /AH D/2015 SHRI NILESH ASHOK NANDWANA VS. ACIT ASST.YEAR 2010-11 - 4 - PAPER-BOOK, VIZ. AUDIT REPORT, CONFIRMATION OF CRED ITORS, ADDITIONS IN FIXED ASSETS ALONG WITH PROOFS AND CONFIRMATIONS FR OM SHREE NANDWANA TRANSPORT. IT IS THE CONTENTION OF THE ASSESSEE TH AT IF THESE EVIDENCES ARE CONSIDERED, NO DISALLOWANCE WOULD BE CALLED FOR. N ON-CONSIDERATION OF THE MATERIAL EVIDENCES WOULD CAUSE GROSS MISCARRIAG E OF JUSTICE. 3.1. LOOKING TO THE TOTALITY OF THE FACTS AND CIRCU MSTANCES OF THE PRESENT CASE, WE DEEM IT PROPER, IN THE INTEREST OF JUSTICE, THAT THE ASSESSEE BE GRANTED ANOTHER OPPORTUNITY TO REPRESEN T HIS CASE BEFORE THE LD.CIT(A). THEREFORE, WE HEREBY SET ASIDE THE IMPU GNED APPELLATE ORDER AND RESTORE THE GROUNDS OF APPEALS TO THE FILE OF L D.CIT(A) FOR DECISION AFRESH. THE LD.CIT(A) IS HEREBY DIRECTED TO ADMIT THE EVIDENCES AND DECIDE THE APPEAL AFTER CALLING THE REMAND REPORT F ROM THE AO AND PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEE MED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 23 RD DAY OF NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23/ 11 /2015 0)..& , '.&../ T.C. NAIR, SR. PS ITA NO.1779 /AH D/2015 SHRI NILESH ASHOK NANDWANA VS. ACIT ASST.YEAR 2010-11 - 5 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-VALSAD 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 17.XI.15 (DICTATION-PAD 7 -PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..18.XI.15 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. 23.XI.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.XI.15 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