Shri Dhirubhai Gulabbhai Patel, Navsari V. Income Tax Officer, Ward - 2, Navsari

ITA 217/SRT/2023

AI Insights

The case involves Dhirubhai Gulabhai Patel, the appellant, contesting an assessment order for the Assessment Year 2017-18, which was initially passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961, but was later found to be under section 144 due to non-compliance by the assessee. The primary contention was the erroneous addition of Rs.54,75,900, which was allegedly deposited in a bank account not owned by the assessee but by another entity. The Tribunal noted that the assessee had not been given a proper opportunity to contest the addition during the earlier proceedings, leading to the decision to remand the case back to the Assessing Officer.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301817 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-06-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 28-03-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 144; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.217/SRT/2023 Assessment Year: (2017-18) (Virtual Hearing) Dhirubhai Gulabhai Patel, H No. At & PO – Rankuva, Patel Faliya, Taluka – Chikhli, Dist. Navsari - 396560. Vs. Income Tax Officer, Ward-2, Navsari-396445 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AEZPP2183C (Appellant) (Respondent) Appellant by Shri Sujesh C. Suratwala, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 26/06/2023 Date of Pronouncement 28/07/2023 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2017-18, is directed against the order passed by the National Faceless Appeal Centre (in short ‘the NFAC’), Delhi [in short “NFAC/Ld. CIT(A)”], which in turn arises out of an assessment order passed by Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 24.12.2019. 2. The grounds of appeal raised by the assessee are as follows: “1. For the year under consideration, assessee has not deposited any amount in any bank account during demonetization and same has been informed in writing to the Jurisdictional Income Tax Officer via registered post (Receipt No. A RG 774051848IN) dated 20/03/2017 with evidences/Material/Documents in compliance to the enquiry letter issued by the Income Tax Department, Ward-2 Navsari vide letter No.ITBA/AIM/S/10/2016-17/1001657500(1), dated 24/02/2017.Despite 2 ITA No.217/SRT/2023/AY.2017-18 Dhirubhai Gulabhai Patel such facts, Learned AO has erred in select the case for Limited Scrutiny under CASS on wrong and untrue footing further, learned CIT (A)/NFAC also failed to give any specific findings on the said issue which is bad-in - law, pervert hence addition made is void ab initio and required to be quashed. 2. Learned AO as well as CIT(A)/NFAC has erred in making addition of Rs.54,75,900/- deposited during demonetization period in DENA BANK Account No.075111001150 at ALLAHABAD, UTTARPRADESH. As a matter of facts, the said Account is not belonging to assessee but it is owned by “M/s Sahid Vijay Filling Station Customer” Located at Main Road Bhawapur PO. Sheogarh Dist. ALLAHABAD, UTTAR PRADESH which is void ab initio hence, required to be deleted. 3. The Appellant craved leave to add, alter, delete, amend or rescind any of the above grounds of appeal as and when necessary with the permission of ITAT.” 3. At the outset, Learned Counsel for the assessee submitted that during the assessment stage, the Assessing Officer has made addition on account of cash deposited in the bank to the tune of Rs.54,75,900/- during the period in the bank account no.075111001150. The Ld. Counsel submitted that said bank account number does not belong to the assessee and it belongs to other person, therefore addition made by the Assessing Officer is bad in law. During the assessment stage, the assessee submitted the reply to the Assessing Officer stating that the said bank account no.075111001150, does not belong to the assessee, therefore no addition on account of cash deposited of Rs.54,75,900/- could be made in the hands of the assessee, hence entire addition should be deleted. 4. The Ld. Counsel also submitted that since the facts relating to this bank account were submitted during the assessment proceedings and the Assessing Officer has passed the order u/s 143(3) of the Act, it means the assessee has made sufficient compliance, therefore the 3 ITA No.217/SRT/2023/AY.2017-18 Dhirubhai Gulabhai Patel addition made by using the wrong bank account number, which does not belong to the assessee, should be deleted. 5. On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue submitted that during the appellate proceedings, the assessee did not appear, therefore NFAC/Ld. CIT(A) has passed the ex parte order. Before ld CIT(A), the said bank account number was not disclosed. Besides, during the assessment stage, the six opportunities were given by the Assessing Officer, however, assessee did not appear before Assessing Officer and never submitted copy of the said bank account Number. The ld DR also stated that on the face of the assessment order, section 143(3), has been written due to typographical error, however, in real sense the order passed by the assessing officer is under section 144 of the Act, therefore Assessing Officer also passed ex parte order. 6. We have heard both the parties. Considering the above facts, we note that the Assessing Officer has provided six opportunities of hearing to the assessee, however, the assessee has not filed any reply and documents before the Assessing Officer, therefore Assessing Officer passed order u/s 144 of the Act, best judgment assessment. On appeal by assessee, before ld CIT(A), we note that ld CIT(A) provided four opportunities of hearings, however, assessee never appeared before ld CIT(A). Therefore, said wrong bank account number remained unverified by Assessing Officer and CIT(A). The Assessing Officer mentioned on the face of assessment order, as if, order was passed u/s 143(3) of the Act, however, matter discussed in the entire assessment order was u/s 144 of the Act, therefore, it is a typographical error to mention section 143(3), on the face of assessment order. 4 ITA No.217/SRT/2023/AY.2017-18 Dhirubhai Gulabhai Patel Before NFAC/Ld. CIT(A) the assessee did not appear therefore NFAC/Ld. CIT(A) has also not examined the impugned bank account number. The ld Counsel claimed that copy of said wrong bank account number was filed before the Assessing Officer, however, we have gone through the assessment order and noted that nowhere the Assessing Officer mentioned in his assessment order that assessee has appeared before him and explained the entries of the impugned bank statement. If the assessee forgot to file the said bank statement before the Assessing Officer, then he could have availed opportunities to file the bank statement before ld CIT(A), however, assessee has failed to do so. Therefore, we are of the view that said impugned bank statement has never been examined by the lower authorities. 7. In these circumstances, we note that assessee could not plead his case successfully neither before the ld. CIT(A) nor before Assessing Officer. We also note that NFAC/Ld. CIT(A) has not passed the order as per the mandate of provisions of section 250(6) of the Act, that is, without hearing the assessee. Hence, we are of the view that one more opportunity should be given to the assessee to plead his case before the Assessing Officer. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Assessing Officer for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the NFAC/ld. CIT(A) and remit the matter back to the file of the Assessing Officer to adjudicate the issue 5 ITA No.217/SRT/2023/AY.2017-18 Dhirubhai Gulabhai Patel afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 8. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced on 28/07/2023 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 28//07/2023 SAMANTA /DKP Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat