The ITO, Ward-2(3), Surat V. Smt. Rajudevi B.Somani, Surat

ITA 214/AHD/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0472 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-02-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 22-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: RASESH SHAH
• Keywords: Opportunity of being heard; Reasonable cause; Non compliance
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 214/ AHD/2010 (ASSESSMENT YEAR 2006-07) ITO, WARD 2(3), SURAT VS. SMT. RAJUDEVI B SOMANI POP. MANJU SHREE CORPN., BLOCK 13, FLAT NO. 147, NR. SURYA AGAR SOCIETY, RING ROAD, SURAT PAN/GIR NO. : ACIPS3456J (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI D K SINGH, SR. DR RESPONDENT BY: SHRI RASESH SHAH, AR DATE OF HEARING: 19.02.2013 DATE OF PRONOUNCEMENT: 08.03.2013 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) II, SURAT DATED 06.10.2009 FOR THE ASSESSMENT YEAR 2006-07. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY T HE A.O. OF RS.6,53,887/- ON ACCOUNT OF DISALLOWANCE OF PURCHAS ES. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY T HE AO ON ACCOUNT OF VARIOUS EXPENSES OF RS.12,316/-. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY T HE A.O. OF RS.1,33,596/- ON ACCOUNT OF LOW HOUSE HOLD WITHDRAW ALS. I.T.A.NO.214 /AHD/2010 2 (4) ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE, THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. (5) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A) MAY BE SET-ASIDE AND THAT OF ASSESSING OFFICER MAY KINDLY BE RESTORED TO THE ABOVE EXTENT. 2. LD. D.R. SUPPORTED THE ASSESSMENT ORDER. HE ALS O DREW OUR ATTENTION TO PAGE 8 OF THE PAPER BOOK AND IT WAS SU BMITTED THAT THERE IS NO STAMP ON THIS LETTER AS TO WHETHER THE SAME WAS ACT UALLY SUBMITTED OR NOT BEFORE THE A.O. REGARDING PAGE 6 OF THE PAPER BOOK BEING LETTER DATED 10.12.2008, IT WAS SUBMITTED THAT THIS LETTER WAS S UBMITTED IN TAPAL ON 11.12.2008 WHEREAS THE ASSESSMENT ORDER IS DATED 12 .12.2008 AND HENCE, THIS IS ALSO NOT CLEAR AS TO WHETHER THE LETTER HAS IN FACT REACHED TO THE A.O. BEFORE THE ORDER PASSED BY HIM AND HENCE, LD. CIT(A) IS NOT JUSTIFIED IN SAYING THAT IN VIEW OF THIS LETTER DAT ED 03.10.2008, 26.11.2008, 10.12.2008 AND 24.12.2008 GENUINENESS OF THE ASSESS EES CLAIM WAS CLEARLY ESTABLISHED. HE SUBMITTED THAT THE ORDER O F LD. CIT(A) SHOULD BE REVERSED AND THAT OF THE A.O. SHOULD BE RESTORED. 3. AS AGAINST THIS, LD. A.R. SUPPORTED THE ORDER OF LD. CIT(A). REGARDING LETTER DATED 24.12.2008, WHICH IS AVAILAB LE ON PAGE 5 OF THE PAPER BOOK, IT WAS SUBMITTED THAT THIS LETTER WAS S UBMITTED IN THE COURSE OF PENALTY PROCEEDINGS INITIATED BY THE A.O. U/S 27 1(1)(B) OF THE INCOME TAX ACT, 1961 AND IN THE LIGHT OF THIS SUBMISSION, THE A.O. DROPPED THE PENALTY PROCEEDINGS AND THEREFORE, IT HAS TO BE ACC EPTED THAT THE ASSESSEE HAS COMPLIED WITH ALL THE REQUIREMENTS OF THE A.O. AND, THEREFORE, THE ORDER OF LD. CIT(A) SHOULD BE CONFIRMED. HE ALSO S UBMITTED THAT THE MATTER MAY BE SENT BACK TO THE FILE OF THE A.O. FOR FRESH DECISION OR THE INCOME MAY BE ASSESSED TO THE EXTENT OF 3%. I.T.A.NO.214 /AHD/2010 3 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THIS DECISION OF LD. CIT(A) IS AS PER PARA 5 O F HIS ORDER WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS AND HAVE GONE THROUGH THE ASSESSMENT ORDER AS ALSO THE WRITTEN SU BMISSIONS OF THE AR ALONG WITH THE ENCLOSED DOCUMENTS, I FIND THAT T HE ASSESSEE HAD MADE DETAILED WRITTEN SUBMISSIONS VIDE LETTERS DTD.3.10.2008, 26.11,2008, 10.12.2008 AND 24.12,2008. AN THESE LET TERS WERE DULY RECEIVED AND STAMPED BY THE OFFICE OF THE ITO( OSD)-III, SURAT. IF THE CONTENTS OF THESE LETTERS WERE TO BE REPRODUCED IN THIS ORDER, IT WOULD LEAVE VERY LITTLE SPACE FOR ANY FUR THER OBSERVATION ON THE ADDITIONS MADE BY THE AO. SUFFICE IT IS TO S AY THAT THERE WAS NOTHING WHICH WAS NOT EXPLAINED OR FURNISHED, INCLU DING THE BOOKS OF ACCOUNT, BILLS AND VOUCHERS (WHICH WERE SUBMITTE D VIDE LETTER DTD. 3.10.2008). THESE LETTERS CLEARLY ESTABLISH TH E GENUINENESS OF THE ASSESSEE'S CLAIMS, IT ALSO SHOWS THE TOTAL FAIL URE ON THE PART OF THE AO TO APPLY HIS MIND TO THE FACTS OF THE CASE O R TAKE INTO CONSIDERATION THE NUMEROUS LETTERS AND EVIDENCES FI LED BEFORE HIM. ALL THE ADDITIONS THEREFORE ARE DELETED, AND THE AS SESSEE'S APPEAL ON ALL THE THREE GROUNDS ARE ALLOWED. IN THE RESULT, THE ASSESSEE'S APPEAL IS ALLOWED. 5. FROM THE ABOVE PARA OF THE ORDER OF LD. CIT(A), WE FIND THAT REGARDING VARIOUS LETTERS DATED 03.10.2008, 26.11.2 008, 10.12.2008 AND 24.12.2008, IT IS STATED BY LD. CIT(A) THAT ALL THE SE LETTERS WERE DULY RECEIVED AND STAMPED BY THE OFFICE OF ITO (OSD) III , SURAT AND THE COPIES OF ALL THESE LETTERS ARE AVAILABLE IN THE PA PER BOOK. COPIES OF LETTER DATED 03.10.2008 IS AVAILABLE ON PAGES 10-11 AND THERE IS NO STAMP BY THE OFFICE OF THE ITO AS STATED BY LD. CIT(A). SECOND LETTER IS DATED 26.11.2008 WHICH IS AVAILABLE ON PAGE 8-9 OF THE PA PER BOOK AND ON THIS LETTER ALSO, THERE IS NO STAMP BY THE OFFICE OF THE A.O. AS HAS BEEN STATED BY LD. CIT(A). THE 3 RD LETTER DATED 10.12.2008 IS AVAILABLE ON PAGE 6 OF THE PAPER BOOK AND ON THIS LETTER, THERE IS STAMP O F THE A.O. OF 11.12.2008 I.T.A.NO.214 /AHD/2010 4 AND THE ASSESSMENT ORDER IS DATED 12.12.2008 AND HE NCE, IT MAY BE THAT THIS THE LETTER WAS NOT BROUGHT TO THE NOTICE OF TH E A.O. BEFORE PASSING OF THE ASSESSMENT ORDER. THIS LETTER IS IN REPLY OF A SHOW CAUSE NOTICE DATED 02.12.2008 AND IN REPLY OF THE QUERY BY THE BENCH, THE COPY OF THE SAME WAS NOT MADE AVAILABLE TO FIND OUT WHEN COMPLIANCE WAS ASKED BY THE A.O. BY WHICH DATE BECAUSE DURING THIS PERIOD, 31.1 2.2008 WAS TIME BARRING DATE FOR PASSING OF THE ASSESSMENT ORDER AN D, THEREFORE, IF THE COMPLIANCE DATE WAS ON AN EARLIER DATE AND THE LETT ER IS FILED BY THE ASSESSEE AFTERWARDS ON 11.12.2008, THEN THERE IS NO FAULT OF THE A.O. IF SUCH LETTER IS NOT CONSIDERED BY HIM BECAUSE THE SA ME COULD NOT REACH TO HIM BECAUSE OF LATE FILING BY THE ASSESSEE. REGAR DING THE LAST LETTER DATED 24.12.2008 IT IS SEEN THAT THIS IS NOT IN THE COURS E OF ASSESSMENT PROCEEDINGS BUT IN THE COURSE OF PENALTY PROCEEDING S AND THAT TOO AFTER PASSING OF ASSESSMENT ORDER AND, THEREFORE, THIS LE TTER IS NOT RELEVANT IN THE PRESENT CASE. REGARDING THIS CONTENTION RAISED BY THE LD. A.R. THAT SINCE THE PENALTY PROCEEDING INITIATED BY THE A.O. U/S 27 1(1)(B) HAS BEEN DROPPED, IT HAS TO BE ACCEPTED THAT THERE WAS FULL COMPLIANCE BY THE ASSESSEE OF THE REQUIREMENT OF THE A.O., WE WOULD L IKE TO OBSERVE THAT THIS ARGUMENT IS BASELESS. DROPPING OF PENALTY PRO CEEDING MAY BE FOR VARIOUS REASONS AND IT MAY BE FOR THIS REASON THAT THE ASSESSEE COULD POINT OUT REASONABLE CAUSE FOR NON COMPLIANCE AND THEN IT CANNOT BE SAID THAT THERE WAS FULL COMPLIANCE. CONSIDERING THIS FACTUA L POSITION, WE FEEL THAT LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITI ON BY SAYING THAT THERE WAS NOTHING WHICH WAS NOT EXPLAINED AND FURNISHED. UNDER THESE FACTS, WE FEEL THAT IT WILL BE FIT AND PROPER TO RESTORE T HE MATTER BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AND HENCE, WE SET AIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF T HE A.O. FOR A FRESH I.T.A.NO.214 /AHD/2010 5 DECISION. THE ASSESSEE SHOULD FURNISH ALL THE REQU IRED DETAILS AND DOCUMENTS BEFORE THE A.O. WITHIN A REASONABLE TIME AND THE A.O. SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADE QUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE REVENUE STANDS ALLO WED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 22/02/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27/02/2013.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 08/03/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.8/3 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 08/03/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .