Shri Manishkumar C.Shah, Surat V. The Income tax Officer,Ward-9(3), Surat

ITA 2276/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6099 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 28-05-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 13-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JYOTI LAXMI
• Assessee Lawyers: RAMESH KUMAR MA LPANI
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 143(3); 234B; 147; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : A HMEDABAD CAMP AT SURAT (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON'BLE SH RI D.C. AGRAWAL , A.M.) I.T.A. NO. 2276/AHD./2008 ASSESSMENT YEAR : 2001-2002 MANISHKUMAR C. SHAH, SURAT -VS.- INCOME TAX OFFICER, WARD-9(3), SURAT (PAN : ASDPS 6010 M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAMESH KUMAR MA LPANI RESPONDENT BY : SMT. JYOTI LAXMI, SR. 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 19.03.2008 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-V, SURAT FOR TH E ASSESSMENT YEAR 2001-02. 2. VARIOUS GROUNDS RAISED BY THE ASSESSEE IN HIS AP PEAL ARE AS UNDER :- (1) THAT THE HON'BLE CIT(A.) HAS ERRED IN SUSTAININ G THE RE-ASSESSMENT PROCEEDINGS U/S. 147 R.W.S. 143(3) OF THE I.T. ACT, 1961 (THE ACT) WHICH IS WRONG, BAD-IN-LAW AND BEYOND THE LAW. (2) THAT HON'BLE CIT(A.) HAS ERRED IN SUSTAINING AD DITION OF OPENING BALANCE OF CAPITAL OF RS.5,71,552/- BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. (3) THAT HON'BLE CIT(A.) HAS ERRED IN SUSTAINING TH E ASSESSMENT MADE AT VERY VERY HIGH FIGURE OF RS.6,21,440/-. (4) THAT HON'BLE CIT(A.) HAS ERRED IN SUSTAINING CH ARGING OF INTEREST U/S. 234A AND 234B OF THE ACT. 3. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF A SSESSEE SHRI RAMESH KUMAR MALPANI, LD. COUNSEL APPEARED AND CONTENDED THAT THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) PASSED THE IMPUGNED ORDER EX-PARTE QUO ASSESSEE. HE SUBMITTED THAT BEFORE THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS), THE LD. COUNSE L OF THE ASSESSEE APPEARED ON THE DATE OF HEARING, BUT IT WAS NOT ON THE APPOINTED TIME. THIS RESULTED IN EX-PARTE ASSESSMENT BY THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS). HE ACC ORDINGLY SUBMITTED THAT IN THE INTEREST OF 2 ITA NO. 2276/AHD/2008 JUSTICE, THE IMPUGNED ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE SET ASIDE AND HE BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 4. ON THE OTHER HAND, SMT. JYOTI LAXMI, LD SR. D.R. APPEARING ON BEHALF OF THE REVENUE COULD NOT CONTROVERT THE AFORESAID SUBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE. 5. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY, THE IMPUGNED ORDER WAS PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS) EX-PARTE QUO ASSESSEE. KEEPING IN VIEW THE REASONING GIVEN BY THE LD. COUNSEL OF THE ASSESSEE, THE IMPUGNED ORDER OF LD. LEARNED COM MISSIONER OF INCOME TAX(APPEALS) IS SET ASIDE WITH THE DIRECTION THAT HE WILL RE-DECIDE THE APPEAL OF THE ASSESSEE AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 04.06.201 0 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 04 / 06 / 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 REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.