Shri Nayankumar Dinsukhrai Raythatha, Rajkot V. The DCIT Circle-2 (1), Rajkot, Rajkot

ITA 182/RJT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1808 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-05-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 23-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

आयकर अपीलीय अिधकरण, राजकोट Ɋायपीठ, राजकोट । IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH: RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER And SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./I.T.A. No.182/RJT/2023 (िनधाŊरण वषŊ / Assessment Year : 2015-16) Shri Nayankumar Dinsukhrai Raythatha Golden Park Street No.2 Behind Raiya Exchange Near Nilkanth Dairy Rajkot 360 007 (Gujarat) बनाम/ Vs. The Dy.CIT Circle-2(1) Rajkot ˕ायी लेखा सं./जीआइआर सं./PAN/GIR No. : AFLPR 8313 R (अपीलाथŎ /Appellant) .. (ŮȑथŎ / Respondent) अपीलाथŎ ओर से / Appellant by : Shri Rushin Patel, AR ŮȑथŎ की ओर से/Respondent by : Shri Shramdeep Sinha, CIT-DR सुनवाई की तारीख / Date of Hearing 20/05/2024 घोषणा की तारीख /Date of Pronouncement 04/06/2024 आदेश / O R D E R PER SHRI DINESH MONHAN SINHA, JUDICIAL MEMBER : Captioned appeal filed by the Assessee is directed against the order passed by the Learned Commissioner of Income Tax (Appeals) [(in brief “the Ld. CIT(A)”], National Faceless Appeal Centre, Delhi (NFAC) vide order dated 16/03/2023 pertaining to Assessment Year (AY) 2015-16. 2. The grounds of appeal raised by the Assessee are as follows: “1. The Learned CIT(Appeals) has erred in law and on facts of the case in confirming the addition of Rs.4,93,01,400/- u/s.68 of the Act without appreciating the facts and law of the case property. 2. The appellant craves leave to add, amend or alter the grounds of appeal at the time of hearing, if need arise.” ITA No.182/Rjt/2023 Shri Nayankumar Dinsukhrai Raythatha vs.DCIT Asst.Year- 2015-16 - 2 - 3. The brief facts of the case are that the assessee has filed his return of income on 30/09/2015 declaring an income of Rs.31,26,610/-. Assessee’s case was selected for limited scrutiny through CASS. Notice u/s.143(2) was issued to the assessee on 19/09/2016, which was served on 21/09/2016. Notice u/s.142(1) cum questionnaire issued to the assessee-company but no compliance was made. The AO completed the scrutiny assessment of the assessee u/s.144 of the Income Tax Act, 1961 (in short “the Act”). A show-cause notice was issued to the assessee on 01/02/2017 fixing the hearing of the case for 08/12/2017. The assessee has made part compliance to the show-cause notice. Therefore, the assessment of the assessee’s case u/s.144 of the Act as best judgement assessment on the basis of facts and material available on the face of the record. Following the judgement of Hon’ble High Court, the AO held that the assessee has failed to satisfy the prescribed the three conditions for genuine cash credit; namely, (i) identity, (ii) genuineness of transaction and (iii) creditworthiness of person advancing loan, an addition of Rs.4,92,86,200/- as unexplained loan added to the total income of the assessee. The interest expense of Rs.15,200/- is also added to the total income of the assessee. Hence, total income assessed at Rs.5,24,28,010/-. 4. Being aggrieved by the order of the AO, the assessee went in appeal. That, the Ld.CIT(A) dismissed the appeal of the assessee by observing as under: “5. In the instance of the case the appellant failed to make any submissions in support of grounds of appeal, this gives rise to an undisputable conclusion that the assessee has got nothing more to say in this regard. I have gone through the record before me and based on the record I have decided to adjudicate the issue on the merits of the case. In the instant case the AO has rightly assessed an income of Rs.5,24,28,010/-. Since the appellant failed to substantiate appellant's ITA No.182/Rjt/2023 Shri Nayankumar Dinsukhrai Raythatha vs.DCIT Asst.Year- 2015-16 - 3 - claim and addition made by the Assessing Officer of Rs 4,93,01,400/- is hereby confirmed.” 5. The ld.AR for the assessee submitted that the Ld.CIT(A) has erred in law and on facts of the case in confirming the addition of Rs.4,93,01,400/- u/s.68 of the Act, without adjudicating the appeal on merits. That, the assessee is facing financial crisis and number of cases are going on in various Courts for recovery, etc. That, the assessee filed return of income on 30/09/2015 declaring net profit of Rs.31,26,610/-. That, assessee has partly complied with the notice issued by the Ld.ITO and submitted a detailed explanation in the case. Now, the assessee prayed for one more opportunity be heard. 6. On the other hand, the Ld.DR relied upon the orders of the lower authorities. That, various opportunities were given to the assessee before the ITO, but no compliance/documents were filed and several notices given to the appellant by the CIT(A), but no response received. He also relied upon the judgement of the Hon’ble Apex Court in the case of Ashokji Chaduji Thakor reported at (2021) 130 taxmann.com 131 (SC), wherein it was held that assessee despite being given several opportunities had failed to file any reply, additions made by the AO were justified by the Ld.CIT(A) in his order dated 16/03/2023. 7. We have heard both the parties, perused the material available on record and gone through the orders of the lower authorities. In the instant case, we find that assessee was given several opportunities to file the reply and assessee has failed to furnish the details, etc. Since the assessee is facing the financial crisis, the business of the assessee is badly affected. Considering that, it appears that the appellant is interested in representing this matter. Therefore, we are of the view that one more opportunity be given to the assessee to represent his case before the Ld.CIT(A) and, hence, we set aside the order of the Ld.CIT(A) dated ITA No.182/Rjt/2023 Shri Nayankumar Dinsukhrai Raythatha vs.DCIT Asst.Year- 2015-16 - 4 - 16/03/2023 and ITO order dated 15/12/2017 and the matter is remanded back to the file of AO for fresh adjudication on merits, after providing opportunity of being heard to the assessee. Thus, the appeal of the assessee is allowed for statistical purposes. 8. In the result, appeal of the Assessee is treated as allowed for statistical purposes. Order pronounced in the Open Court on 4 th June, 2024 at Rajkot. Sd/- Sd/- (DR. ARJUN LAL SAINI) (DINESH MOHAN SINHA) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT; Dated 04/ 06 /2024 टȣ.सी.नायर, व.Ǔन.स./T.C. NAIR, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत/Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant 2. Ĥ×यथȸ / The Respondent. 3. संबंͬधत आयकर आय ु Èत / Concerned CIT 4. आयकर आय ु Èत(अपील) / The CIT(E)-Ahmedabad 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण,राजोकट/DR,ITAT, Rajkot 6. गाड[ फाईल / Guard file. आदेशान ु सार/ BY ORDER, स×याͪपत ĤǓत //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपीलȣय अͬधकरण, राजोकट / ITAT, Rajkot