Smt. Savitaben Arvindbhai Patel, Surat V. The Income tax Officer,Ward-1(2), Surat

ITA 1896/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80517 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 01-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: D K PARIKH
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. ITA.NO. 1896/AHD/2011 (ASSESSMENT YEAR: 2008-09) SMT. SAVITABEN ARVINDBHAI PATEL 17, APSARA IND. SOCIETY, UDHNA MAGDALLA ROAD, SURAT APPELLANT VS. INCOME TAX OFFICER, WARD-1(2), SURAT RESPONDENT PAN: ABGPP5099M /BY APPELLANT : SHRI D.K. PARIKH, A.R. /BY RESPONDENT : SHRI V.K. SINGH, SR. D.R. !' /DATE OF HEARING : 20.11.2014 #$% !' /DATE OF PRONOUNCEMENT : 21.11.2014 ORDER I.T.A. NO. 1896/AHD/2011 A.Y. 2008-09 (SMT. SAVITABEN ARVINDBHAI PATEL VS. ITO) PAGE 2 PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, SU RAT, DATED 30.06.2011 FOR A.Y. 2008-09 ON THE FOLLOWING GROUND S: 1. THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITIO N OF RS.17,60,000/- ON ACCOUNT OF ALLEGED BANK DEPOSITS. 2. THAT THE CIT(A) FAILED TO APPRECIATE THE MATERIA LS LIKE AGREEMENT TO SALE, CONFIRMATIONS OF PURCHASERS & CO PIES OF 7 X 1 2 OF PURCHASERS TO PROVE THE LAND HOLDINGS & EARNINGS OF THE PURCHASERS. THUS THE ASSESSEE HAS PROVED THE IDENTITY, CREDIT WORTHINESS & GENUINENESS OF THE TRANSACTIONS BOTH A T A.O. LEVEL &, APPELLATE LEVEL. 3. THAT THE CIT(A) ERRED IN APPRECIATING THE FRESH CONFIRMATIONS PRODUCED AS WELL AS EXPLANATION THAT THE AGREEMENT TO SELL COULD NOT BEEN ULTIMATELY CARRIED OUT. 4. THAT THE ADDITION OF RS. 17, 60,000/- MADE U/S-6 9A MAY KINDLY BE DELETED. 2. ASSESSEE IS CLAIMING TO HAVE RECEIVED ADVANCE OF RS. 17,60,000/- AS AN ADVANCE FOR SALE OF ITS AGRICULTU RAL LAND VIDE AGREEMENT DATED 10-11-2007 PLACED ON PAGE NO. 2-26 OF THE PAPER BOOK. ASSESSEE FILED CONFIRMATION OF PURCHAS ER PARTIES BUT ASSESSING OFFICER WANTED CROSS-EXAMINATION OF T HE CONCERNED PARTIES WITH REGARD TO THEIR CAPACITY OF PAYMENT VIS- -VIS THEIR AGRICULTURAL HOLDINGS. ASSESSEE COULD N OT PRODUCE THE CONCERNED PURCHASERS BECAUSE THEY ARE CLAIMED T O BE BUSY IN AGRICULTURAL ACTIVITIES AT THE RELEVANT POINT OF TIME. I.T.A. NO. 1896/AHD/2011 A.Y. 2008-09 (SMT. SAVITABEN ARVINDBHAI PATEL VS. ITO) PAGE 3 ACCORDINGLY, ADDITION OF RS. 17,60,000/- WAS MADE U /S. 69A OF THE ACT AND THE SAME WAS CONFIRMED BY CIT(A). 2.1 BEFORE US, LD. ASSESSEES REPRESENTATIVE POINTE D OUT THAT THE CONFIRMATION OF PROSPECTIVE BUYERS HAVE BEEN PR ODUCED BEFORE LOWER AUTHORITIES AND ASSESSEE WAS NOT PROVI DED DUE OPPORTUNITY BY CIT(A) FOR CROSS-EXAMINATION FOR PRO DUCING ABOVE SAID PARTIES AT RELEVANT POINT OF TIME. ACCOR DING TO LD. ASSESSEES REPRESENTATIVE IN CASE THE DUE OPPORTUNI TY IS PROVIDED TO THE ASSESSEE TO PUT FORWARD ITS CLAIM B Y WAY OF GIVING EVIDENCE TO ESTABLISH THE FACT THAT ASSESSEE HAS RECEIVED THE ABOVE SAID AMOUNTS FROM PROSPECTIVE PURCHASERS, ADDITIONS CAN BE DELETED. THIS REQUEST OF LD. ASSESSEES REP RESENTATIVE HAS OPPOSED ON BEHALF OF THE LD. DEPARTMENTAL REPRE SENTATIVE WHO SUBMITTED THAT APATHY TOWARDS LOWER AUTHORITIES SHOULD NOT BE ENCOURAGED BY GIVING OPPORTUNITIES AFTER LAP SE OF LONG TIME. ACCORDING TO LD. DEPARTMENTAL REPRESENTATIVE, ORDER OF CIT(A) BE CONFIRMED. 2.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE ARE OF THE VIEW THAT OPPORTUNITIES OF DU E HEARING OF ASSESSEE IS ESSENCE OF PRINCIPLE OF NATURAL JUSTICE WHICH SHOULD NOT BE COMPROMISED. ASSESSING OFFICER HAS NOT APPR ECIATED THE PROBLEM OF NON-PRODUCING OF PROSPECTIVE BUYERS AT T HE RELEVANT POINT OF TIME AS DISCUSSED ABOVE. SIMILARLY CIT(A ) HAS ALSO NOT PROVIDED DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AS FAR AS ITS CLAIM ON MERIT IS CONCERNED. IT IS ONLY PROSPEC TIVE I.T.A. NO. 1896/AHD/2011 A.Y. 2008-09 (SMT. SAVITABEN ARVINDBHAI PATEL VS. ITO) PAGE 4 PURCHASERS WHO COULD TELL THE FACTS AND THE SAME CA N BE DONE ONLY IF ASSESSEE IS PROVIDED DUE OPPORTUNITY OF PRO DUCING THE PAYEES OF THE ADVANCE I.E. PROSPECTIVE PURCHASERS. SO, IN THE INTEREST OF NATURAL JUSTICE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO ASSESSING OFFICER WITH DIRECT ION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OP PORTUNITY OF HEARING TO THE ASSESSEE. ASSESSEE IS DIRECTED TO C O-OPERATE IN THE PROCEEDINGS BEFORE CONCERNED ASSESSING OFFICER. SINCE WE ARE RESTORING THE MATTER ON PRELIMINARY ISSUE AS DI SCUSSED ABOVE, WE ARE REFRAINING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. 3. AS A RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON THIS THE 21 ST DAY OF NOVEMBER, 2014. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R A.K. & & & & ' ' ' ' ('% ('% ('% ('% / COPY OF ORDER FORWARDED TO:- 1. +, / REVENUE 2. / ASSESSEE 3. // 0 / CONCERNED CIT 4. 0- / CIT (A) 5. '45 , , / DR, ITAT, AHMEDABAD 6. 589 :; / GUARD FILE. I.T.A. NO. 1896/AHD/2011 A.Y. 2008-09 (SMT. SAVITABEN ARVINDBHAI PATEL VS. ITO) PAGE 5 BY ORDER / & ,