Jagatsingh P Jadhav, Nashik V. ITO, Wd.-1,[4] Nashik, Nashik

ITA 235/PUN/2012

• Counselvise Citation: 23524514 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 06-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 143(3); 147; 69; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS. 234 & 235/PN/2012 (ASSESSMENT YEARS : 2004-05 & 2005-06) JAGATSINGH PRATAPSINGH JADHAV 42, KRUSHI NAGAR, COLLEGE ROAD NASHIK 422 005 PAN : AAPPJ1588D . APPELLANT VS. INCOME TAX OFFICER WARD 1 (4), NASHIK . RESPONDENT APPELLANT BY : NONE RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 09-05-2013 DATE OF PRONOUNCEMENT : 09-05-2013 ORDER PER G. S. PANNU, AM THE CAPTIONED TWO APPEALS HAVE BEEN PREFERRED BY T HE ASSESSEE AND ARE DIRECTED AGAINST THE SIMILARLY WORDED BUT SEPAR ATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATE D 07.12.2011 PERTAINING TO THE ASSESSMENT YEARS 2004-05 & 2005-06 WHICH, IN TURN, HAVE ARISEN FROM THE RESPECTIVE ORDERS OF THE ASSESSING OFFICER PASS ED UNDER SECTION 143(3) READ WITH SECTION 147 AND UNDER SECTION 143(3) OF T HE ACT, (IN SHORT THE ACT) DATED 27.12.2007 & 18.12.2007. 2. IN BOTH THE APPEALS, THE SOLITARY GROUND OF APPE AL RAISED BY THE ASSESSEE READS AS UNDER :- ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE COMMISSIONER OF INCOME TAX (APP EALS)-I, NASHIK IS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE APPELLANT ON THE GROUND THAT THE APPELLANT IS NOT INTERESTED IN PROSECUTING THE APPEAL PARTICULARLY WHEN THE APPELLANT HAS FILED WR ITTEN SUBMISSION. ITA NOS. 234 & 235/PN/2012 JAGATSINGH PRATAPSINGH JADHAV A.YS. 2004-05 & 2 005-06 THE APPEAL MAY PLEASE BE SET ASIDE TO THE FILE OF T HE CIT(A)-I, NASHIK. 3. THE BRIEF BACKGROUND IS THAT THE APPELLANT IS AN INDIVIDUAL PRACTICING AS AN ARCHITECT. FOR THE ASSESSMENT YEAR 2004-05, THE ASSESSING OFFICER FINALIZED AN ASSESSMENT DATED 27. 12.2007 UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT DET ERMINING TOTAL INCOME OF RS. 21,12,250/-. THE ASSESSEE PREFERRED A N APPEAL BEFORE THE CIT(A) CHALLENGING THREE ADDITIONS, NAMELY, RS. 11,00,000/- REPRESENTING UNEXPLAINED INVESTMENT UNDER SECTION 6 9 OF THE ACT; RS.4,51,076/- MADE ON ADHOC BASIS; AND RS. 76,413/- REPRESENTING DISALLOWANCE MADE FOR PERSONAL USE OUT OF SOME HEAD S OF EXPENSES DEBITED IN PROFIT & LOSS ACCOUNT. THE CIT(A) DISMIS SED THE APPEAL OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE DID NOT APPEAR IN RESPONSE TO VARIOUS NOTICES FOR HEARING ISSUED AND ACCORDINGLY IT WAS INFERRED THAT THE APPELLANT IS NOT INTERESTED I N PROSECUTING THE APPEAL. 4. SIMILAR IS THE FACT SITUATION FOR THE ASSESSMENT YEAR 2005-06, WHEREIN ALSO THE APPEAL OF THE ASSESSEE BEFORE THE CIT(A) HAD CHALLENGED THE VARIOUS ADDITIONS MADE BY THE ASSESS ING OFFICER. THE APPEAL OF THE ASSESSEE AGAINST THE ORDER OF THE ASS ESSING OFFICER, PASSED UNDER SECTION 143(3) OF THE ACT, HAS BEEN DI SMISSED BY THE CIT(A) BY OBSERVING THAT THE ASSESSEE DID NOT APPEA R IN RESPONSE TO VARIOUS NOTICES FOR HEARING ISSUED AND ACCORDINGLY IT WAS INFERRED THAT THE APPELLANT IS NOT INTERESTED IN PROSECUTING THE APPEAL. THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION, AGAINST WHICH THE ASSESSEE IS IN FURTH ER APPEAL BEFORE US. ITA NOS. 234 & 235/PN/2012 JAGATSINGH PRATAPSINGH JADHAV A.YS. 2004-05 & 2 005-06 5. AT THE TIME OF HEARING, A WRITTEN SUBMISSION HAS BEEN PUTFORTH BY THE ASSESSEE STATING THAT THE APPELLANT WAS INTE RESTED IN PROSECUTING THE APPEALS BEFORE THE CIT(A) INASMUCH AS TWO WRITTEN SUBMISSIONS WERE FILED AND THE SAME HAVE NOT BEEN C ONSIDERED BY THE CIT(A) WHILE DISPOSING OF ASSESSEES APPEALS. I T IS FURTHER SUBMITTED THAT THE APPEALS OF THE ASSESSEE BE RESTO RED BACK TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. ON THE O THER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE APPEARING FOR T HE REVENUE SUBMITTED THAT THE CIT(A) HAS NOTED THAT ASSESSEE D ID NOT RESPOND TO THE VARIOUS NOTICES FOR HEARING ISSUED AND IN TH IS LIGHT THE APPEAL OF THE ASSESSEE HAS BEEN JUSTIFIABLY DISMISSED FOR WANT OF PROSECUTION. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. IN THE PRESENT CASE, WE FIND THAT THE IMPUGNED ORDERS OF T HE CIT(A) ARE VIOLATIVE OF SECTION 250(6) OF THE ACT AND ARE ACCO RDINGLY UNSUSTAINABLE. SECTION 250 OF THE ACT PRESCRIBES TH E PROCEDURE FOR DISPOSING OF APPEALS FILED BEFORE THE COMMISSIONER (APPEALS). IN TERMS OF SUB-SECTION (6) OF SECTION 250 OF THE ACT, IT IS PRESCRIBED THAT THE ORDER OF THE COMMISSIONER (APPEALS) SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECIS ION THEREON AND THE REASON FOR DECISION. IT IS FOUND THAT THE IMPUGNED ORDERS PASSED BY THE COMMISSIONER (APPEALS) ARE CONSPICUOUSLY SILENT WITH REGARD TO THE POINTS FOR DETERMINATION RAISED BY THE ASSESSEE BEFORE HIM, AND THE DECISION THEREON. OSTENSIBLY, THE ASSESSEE HAD CHALLENGED THE ADDITIONS MADE BY THE ASSESSING OFFICER AS PER THE MEMO OF APPEAL FILED BEFORE THE CIT(A), WHICH WAS ALSO ACCOMPANIED BY THE STATEMENT OF FACTS. THE IMPUGNED ORDERS OF THE CIT( A) DO NOT DEAL WITH THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE O N THEIR MERITS, WHICH IS CONTRARY TO THE MANNER OF DISPOSAL OF APPE AL PRESCRIBED IN SECTION 250(6) OF THE ACT. FOR THE AFORESAID REASON , WE THEREFORE, ITA NOS. 234 & 235/PN/2012 JAGATSINGH PRATAPSINGH JADHAV A.YS. 2004-05 & 2 005-06 FIND THAT THE IMPUGNED ORDERS OF THE CIT(A) ARE UNS USTAINABLE AND ACCORDINGLY SET ASIDE. THE MATTER IS REMITTED BACK TO THE FILE OF THE CIT(A) TO BE ADJUDICATED IN ACCORDANCE WITH LAW AFT ER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. RESULTANTLY, THE APPEALS OF THE ASSESSEE ARE ALL OWED AS ABOVE. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COUR T AT THE CONCLUSION OF THE HEARING ON 09 TH MAY, 2013 IN THE PRESENCE OF THE LEARNED DEPARTMENTAL REPRESENTATIVE. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 09 TH MAY, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-1, NASHIK; 4) THE CIT-1, NASHIK; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY I.T.A.T., PUNE