Smt. Radhaben Kumarbhai Tahelyani, Nadiad V. The ACIT.,Cent.Circle-2, Baroda

ITA 2242/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2175 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-02-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 02-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: SUNIL H TALATI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON' BLE SHRI A.N.PAHUJA, A.M. ) I.T.A. NO. 2242/AHD./2010 ASSESSMENT YEAR : 2007-2008 SMT. RADHABEN KUMARBHAI TEHALIYANI, NADIAD -VS- THE A.C.I.T., CENTRAL CIRCLE-II, BARODA (PAN : ABAPT 8063F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUNIL H. TALATI, A.R. RESPONDENT BY : SHRI R.K.DHANESTA, D.R O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 23.04.2010 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, AH MEDABAD FOR THE ASSESSMENT YEAR 2007- 2008. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, SHE FILED THE RETURN OF INCOME ON 25. 02.09 DECLARING TOTAL INCOME OF RS.9,17,760/-. THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER S ECTION 143(3) ON 07.05.09 ON A TOTAL INCOME OF RS.18,17,760/-. IN THIS ASSESSMENT YEAR, THE ASS ESSING OFFICER MADE ADDITION OF RS. 9 LAKHS. 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LD. LEARNE D COMMISSIONER OF INCOME TAX(APPEALS) PASSED THE IMPUGNED ORDER EX PARTE QUO THE ASSESSEE WHEREIN HE CONFIRMED THE SAID ADDITION FOR THE DETAILED REASONS GIVEN IN PAR A 2.1 WHICH READS AS UNDER: 2.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSION O F THE LD. COUNSEL AS WELL AS THE FACTS OF THE CASE. IT IS UNDISPUTED THAT THE APPELL ANT HAD INTRODUCED AN AMOUNT OF RS.9,00,000/- IN CASH 05.04.2006 IN HER CAPITAL ACC OUNT. THE SOURCE WAS EXPLAINED AS OUT OF THE WITHDRAWALS OF RS.16,00,000 /- MADE ON 05.12.2005. THE APPELLANT HAD NOT EXPLAINED BEFORE THE ASSESSING OF FICER AS TO FOR WHICH SPECIFIC DEAL THE AMOUNT WAS WITHDRAWN AND IF THE AMOUNT OF RS.9,00,000/- WAS OUT OF THE WITHDRAWAL OF RS.16,00,000/-, WHERE GONE THE BALANC E OF RS.7,00,000/- AS NO SUCH 2 ITA NO. 2242-AHD-2010 CASH IN HAND WAS SHOWN IN THE BALANCE SHEET. IT IS HARDLY BELIEVABLE THAT THE CASH WITHDRAWN ON 05.12.2005 FROM BANK WAS AVAILABLE WIT H THE APPELLANT FOR A PERIOD OF FOUR MONTHS. IF THE CASH OF RS.16,00,000/- WAS N OT UTILIZED, THE APPELLANT WOULD HAVE RE-DEPOSITED THE SAME IN HER BANK ACCOUNT. CON SIDERING THE FACTS OF THE CASE, AN INFERENCE CAN ONLY BE DRAWN AS TO WHETHER THE SA ME CASH AS WITHDRAWN FROM THE BANK WAS AVAILABLE WITH THE APPELLANT OR NOT. T HE ASSESSING OFFICER HAD DRAWN A CORRECT INFERENCE AS THE APPELLANT HAD CONC EALED THE INFORMATION IN HER POSSESSION AS REGARD TO THE DEAL FOR WHICH CASH OF RS.16,00,000/- WAS WITHDRAWN. NO CLARIFICATION WAS GIVEN FOR THE AMOUNT OF RS.7,0 0,000/- IF THE DEPOSIT OF RS.9,00,000/- WAS FROM THE WITHDRAWAL OF RS.16,00,0 00/-. NO ANY INTERFERENCE IS THEREFORE, CALLED FOR IN THE FINDING RECORDED BY TH E ASSESSING OFFICER. THE ADDITION MADE FOR RS.9,00,000/- IS THUS CONFIRMED. THE FIRST GROUND OF APPEAL IS ACCORDINGLY DISMISSED. 4. AGGRIEVED WITH THE ORDER OF THE LD. LEARNED COMM ISSIONER OF INCOME TAX(APPEALS), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FO LLOWING GROUNDS: 1. THE LEARNED C.I.T.(APPEALS) ERRED BOTH IN LAW AN D ON FACTS IN CONFIRMING THE ADDITION OF RS.9 LAKHS MADE BY THE ASSESSING OFFICE R. ON THE FACTS OF THE CASE THE AMOUNT OF RS.9 LAKHS CREDITED IN THE CAPITAL OF THE APPELLANT WAS SATISFACTORILY EXPLAINED AND THERE WAS NO UNDISCLOSED INCOME. IT B E SO HELD NOW. THE ADDITION BE DELETED. 2. THE LEARNED C.I.T.(APPEALS) ERRED BOTH IN LAW AN D ON FACTS IN NOT APPRECIATING THAT THERE WAS GENUINE WITHDRAWALS MADE BY THE APPE LLANT WHICH WAS AVAILABLE FOR THE PURPOSE OF INTRODUCING THE AMOUNT AS CAPITA L AND WHEN THERE WAS NO DISPUTE REGARDING THE FACT OF WITHDRAWAL FROM THE B ANK, WHICH WAS IN FACT UTILIZED FOR THE PURPOSE OF INTRODUCING THE CAPITAL, THE ADD ITION OUGHT NOT TO HAVE BEEN MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE C.I.T. (APPEALS). THE ADDITION BE DELETED NOW. 5. AT THE TIME OF HEARING BEFORE US, SHRI SUNIL H. TALATI, LD. A.R. APPEARED ON BEHALF OF THE ASSESSEE AND CONTENDED THAT THE LD. LEARNED COMMISS IONER OF INCOME TAX(APPEALS) PASSED THE IMPUGNED ORDER WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE EXPLAINED THAT AGAINST COL UMN PRESENT FOR THE APPELLANT, THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) MENTION ED NONE WHEREAS IN PARA 2.1 OF THE IMPUGNED ORDER, HE HAS STATED THAT SUBMISSIONS OF T HE LD. COUNSEL FOR THE ASSESSEE WERE CONSIDERED. THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS NOT DISCUSSED THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. TH IS CLEARLY INDICATES THAT THE IMPUGNED ORDER 3 ITA NO. 2242-AHD-2010 PASSED IS IN CONTRAVENTION OF PROVISIONS CONTAINED IN SECTION 250(6) OF THE I.T.ACT WHICH PROVIDES THAT IT IS OBLIGATORY FOR LEARNED COMMISSI ONER OF INCOME TAX(APPEALS) TO PASS SPEAKING ORDER STATING THE GROUNDS RAISED IN APPEAL , HIS DECISION AND THE REASONS FOR SUCH DECISION. THE UNDERLINING RATIONALE OF THE PROVISIO N IS THAT SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE TRIBUNAL. ON MERIT, THE COUNSEL OF TH E ASSESSEE SUBMITTED THAT EXPLANATION OF THE ASSESSEE HAS BEEN REJECTED ON DOUBTS AND SUSPICION. THEREFORE, THE ADDITION CONFIRMED BY THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE DELE TED. 6. ON THE OTHER HAND, SHRI R.K.DHANESTA, LD. D.R. A PPEARING ON BEHALF OF THE REVENUE FAIRLY ADMITTED THAT IN THE IMPUGNED ORDER, THE LD. LEARNE D COMMISSIONER OF INCOME TAX(APPEALS) HAS MENTIONED THAT NONE APPEARED ON BEHALF OF THE ASSES SEE AND ON THIS BASIS, HE PRESUMED THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING HER APPEA L. HE FURTHER SUBMITTED THAT SINCE THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS DEC IDED THE APPEAL ON MERIT, THE VIEW TAKEN BY THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEA LS) BE UPHELD. 7. HAVING HEARD FOR BOTH THE SIDES, WE HAVE CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT KNOWN HOW THE LD. LEAR NED COMMISSIONER OF INCOME TAX(APPEALS), IN THE IMPUGNED ORDER, HAS STATED THAT NONE WAS PRE SENT FOR THE APPELLANT. IT IS ALSO NOT KNOWN HOW IN PARA 2.1, HE HAS MENTIONED THAT SUBMISSIONS OF LD. COUNSEL WERE CONSIDERED. KEEPING IN VIEW OF THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT WILL MEET ENDS OF JUSTICE, IF THE IMPUGNED ORDER OF THE LD. L EARNED COMMISSIONER OF INCOME TAX(APPEALS) IS SET ASIDE AND THE LD. LEARNED COMMISSIONER OF IN COME TAX(APPEALS) IS DIRECTED TO DECIDE THE APPEAL AFRESH, DEALING IN DETAIL THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. WE ORDER ACCORDINGLY. NEEDLESS TO ADD THAT BEFORE PASSING TH E FRESH ORDER, THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WILL GIVE AN OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE COURT ON 04.02.2011. SD/- SD/- (A.N.PAHUJA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 04/02/2011 4 ITA NO. 2242-AHD-2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, 4) CIT CONCERNED, 5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S.