Smt. Dollyben Jayeh Shah, Surat V. The Income tax Officer,Ward-9(1), Surat

ITA 2292/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9952 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-09-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 16-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Unexplained investment; Unexplained expenditure; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND N. S. SAINI, AM) ITA NO.2292/AHD/2008 A.Y.: 1999-2000 SMT. DOLLYBEN JAYESH SHAH, 110, SANTOK APARTMENT, VARACHHA ROAD, SURAT VS THE INCOME TAX OFFICER, WARD -9(1), AAYAKAR BHAVAN, MAJURA GATE, SURAT PA NO. ABNPS 6859 D (APPELLANT) (RESPONDENT) APPELLANT BY SHRI MEHUL K. PATEL, AR RESPONDENT BY SHRI K. MADHUSUDAN, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-V, SURAT DATED 19-03 -2008 FOR ASSESSMENT YEAR 1999-2000 ON THE FOLLOWING EFFECTIVE GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING OF RS.13,53,745/- OF PENDIN G BALANCE OF CAPITAL ACCOUNT ON THE GROUND OF ALLEGED BOGUS CREDIT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.30,000/- AS UNEXPLAINED INVESTMENT IN FDRS U/S. 69 OF THE I. T. ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.24,000/- AS UNEXPLAINED EXPENDITURE OUT OF UNDISCLOSED INCOME. ITA NO.2292/AHD/2008 SMT. DOLYBEN JYESH SHAH VS ITO, W-9(1),SRUAT 2 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW 3. ON CONSIDERATION OF THE SUBMISSIONS OF THE PARTI ES AND GOING THROUGH THE IMPUGNED ORDER, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE LEARNED CIT(A) . THE AO MADE THE ABOVE ADDITIONS BY DISCUSSING THE FACTS AND MATERIA L ON RECORD. THE ASSESSEE HOWEVER, DID NOT ATTEND THE APPELLATE PROC EEDINGS BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) IN THE ABSENCE O F ANY REPRESENTATION FROM THE SIDE OF THE ASSESSEE NOTED THAT HE IS FEEL ING HANDICAPPED ON ACCOUNT OF ABSENCE OF ANY ARGUMENTS FROM THE SIDE O F THE ASSESSEE. THE APPEAL OF THE ASSESSEE WAS ACCORDINGLY DISMISSED. T HE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, RIGHTLY CONTENDED THAT THE ORDER OF THE LEARNED CIT(A) IS NON-SPEAKING, WITHOUT GIVING ANY REASONS FOR DECISION AND IS LIABLE TO BE SET ASIDE. ACCORDING TO SECTION 250(6) OF THE IT ACT, THE ORDER OF THE LEARNED CIT(A) DECIDING THE APPEAL SHA LL STATE POINTS FOR DETERMINATION, DECISION THEREOF AND THE REASONS FOR THE DECISION. THE LEARNED CIT(A) HAS NOT DISCUSSED ANY FACTS IN THE I MPUGNED ORDER AND HAS ALSO NOT GIVEN ANY REASONS FOR DECISION. VIRTUA LLY, THE APPEAL OF THE ASSESSEE WAS DISMISSED IN DEFAULT OF THE ASSESSEE I N PUTTING APPEARANCE AND ARGUMENTS BEFORE THE LEARNED CIT(A). THE ORDER OF THE LEARNED CIT(A), THEREFORE, UNSUSTAINABLE IN LAW. EVEN IF, THE ASSES SEE DID NOT APPEAR BEFORE THE LEARNED CIT(A), IT IS THE DUTY OF THE LE ARNED CIT(A) TO DECIDE THE APPEAL ON MERIT GIVING REASONS FOR DECISION IN THE IMPUGNED ORDER. IN THE ABSENCE OF REASONS FOR DECISION IN THE APPELLAT E ORDER, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE APP EAL OF THE ASSESSEE TO HIS FILE WITH DIRECTION TO RE-DECIDE THE APPEAL OF THE ASSESSEE ON MERIT GIVING REASONS FOR DECISION IN ALL THE ADDITIONS CH ALLENGED BY THE ASSESSEE. THE LEARNED CIT(A) SHALL GIVE REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.2292/AHD/2008 SMT. DOLYBEN JYESH SHAH VS ITO, W-9(1),SRUAT 3 3. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08-09-2010 SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 08-09-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD