Sh. Ramswaroop Shivhare, Gwalior V. D.C.I.T., Central- 1, Bhopal

ITA 238/Ind/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4596 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 25-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Set aside
• Section: 147; 148; 132; 144; 143(3); 250

Judgement Text

आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE MS.MADHUMITA ROY, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER (Conducted through Virtual Court) ITA No.238/Ind/2021 Assessment Year: 2009-10 Shri Ramswaroop Shivhare- Gwalior बनाम/ Vs. DCIT-Central-1, Bhopal (Appellant / Assessee) (Respondent/ Revenue) PAN: AGHPS 8985 R Assessee by S/Shri Anil Kamal Garg & Arpit Gaur, ARs Revenue by Shri P.K. Mitra, CIT-DR Date of Hearing 01.06.2022 Date of Pronouncement 22.06.2022 आदेश / O R D E R Per B.M. Biyani, A.M.: THIS APPEAL: 1. This appeal filed by the assessee is directed against the order dated 02.09.2021 of learned Commissioner of Income-Tax (Appeals)-3, Bhopal [“Ld. CIT(A)”] in Appeal No. CIT(A)-3/BPL/IT-12216/2016-17/498, which in turn arises out of the order of assessment dated 29.12.2016 passed by the learned DCIT (Central)-1, Bhopal [“Ld. AO”] u/s 147 read with section 144 of the Income-tax Act, 1961 [“the Act”] for the Assessment-Year 2009-10. ITA No238/Ind/2021 Shri Ramswaroop Shivhare A.Y. 2009-10 Page 2 of 6 BACKGROUND: 2. Brief facts are such that the assessee filed original return declaring a total income of Rs. 1,09,12,790/-, which was assessed by Ld. AO u/s 143(3) at a total income of Rs. 1,74,12,790/-. Subsequently, during the course of a search conducted u/s 132 on the premises of Shivhare Group, certain documents with the regard to the assessee were found and therefore the case was re-opened u/s 148 of the act. Finally the Ld. AO passed order u/s 147 read with section 144 of the act on 29.12.2016. Being aggrieved by the this order of Ld. AO, the assessee filed appeal to Ld. CIT(A). The Ld. CIT(A) dismissed the appeal vide order dated 02.09.2021. Against the order of Ld. CIT(A), the assessee has filed this appeal and now before us. GROUNDS: 3. The assessee has raised following grounds: “1. That, the learned CIT(A) grossly erred, both on facts and in law, in not admitting the written submission filed by the appellant during the course of appellate proceedings while passing the impugned Order. 2. That, the learned CIT(A) grossly erred, in law, in not adjudicating the additional legal grounds raised by the appellant during the course of appellate proceedings. 3. That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in upholding the action of the AO in assuming the jurisdiction of framing the assessment under s.147 r. w.s. 144 of the Income-Tax Act, 1961 without first issuing / ensuring a valid notice under s.148 of the Act. 4. That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in upholding the action of the AO in framing the assessment under s. 147 without considering the material fact that the only notice issued under s. 148 of the Act, in the instant case, was the one issued by the ACIT, Circle- 3, Gwalior, on 30-03- 2016, but such Notice could not be said to be a valid notice for the reason that on the date of issue of such notice, the jurisdiction of the ACIT, Circle-3, Gwalior over the case of the appellant had got ceased on 29-03-2016, in pursuance of the Order under s.127 of the Act passed by the ITA No238/Ind/2021 Shri Ramswaroop Shivhare A.Y. 2009-10 Page 3 of 6 Pr. CIT, Gwalior on 30-03-2016. 5. That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in upholding the action of the ACIT, Circle-3, Gwalior in issuing the notice under s. 148 of the Act without obtaining the necessary approval from the Pr. CIT, Gwalior in accordance with the provisions of sub-section (l) of section 151 of the Act. 6(a). That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in upholding the action of the AO for issuing the notice under s. 148 of the Income Tax Act, 1961 and framing of the reassessment thereafter, which are quite, unjustified, unwarranted, without jurisdiction and bad-in-law. 6(b). That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in upholding the action of the AO for issuing the notice under s. 148 of the Act, merely on suspicion, without forming any objective satisfaction and without having tenable reasons to believe that the appellant had escaped any income chargeable to tax. 7. That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in upholding the action of the AO for framing the Order of reassessment under s. 144 / 147 of the Act, without passing a speaking order on the objections raised by the appellant against issuance of the Notice u/s. 148 of the Act. 8. That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in confirming the action of the AO in framing the assessment under s. 144 / 147 without affording reasonable opportunity of being heard to the appellant in gross violation of the principles of natural law and justice. 9. That, without prejudice to the above, the ld. CIT(A) grossly erred, both on facts and in law, in confirming the action of the AO in determining the income of the appellant, u/s. 144 / 147 of the Act, at Rs. 8,17,53,163/- as against the originally assessed income u/s. 143(3) of the Act at Rs. 1,74,12,790/- thereby making addition of Rs. 6,43,40,373/- which is quite unjustified, unwarranted, arbitrary, excessive and bad-in-law. 1 O. That, without prejudice to the above, the ld. CIT(A) grossly erred, both on facts and in law, in confirming the addition of Rs. 6,43,40,373/- made by the AO in the appellant's income, on account of the unexplained credit entries merely on guess work, conjectures and surmises. ITA No238/Ind/2021 Shri Ramswaroop Shivhare A.Y. 2009-10 Page 4 of 6 11. That, the appellant further craves leave to add, alter andlor amend any of the foregoing grounds of appeal as and when considered necessary.” GROUND No. 1: 4. In this ground the assessee has submitted that the Ld. CIT(A) has grossly erred in not admitting the written submission filed by the assessee before him during the appellate proceedings. 5. Ld. AR assailed the order of Ld. CIT(A) by drawing our attention to Para No. 3 of the order which is reproduced below: “During the course of appellate proceedings the appellant has filed the written submission. The written submission filed during the course of appellant proceedings has been not admitted because the same has not been filed before the AO.” Ld. AR, thereafter, carried us to the “written submission” placed at Page No. 1 to 21 of the Paper-Book, filed by the assessee to the Ld. CIT(A) during appellate proceeding. Ld. AR submitted that this “written- submission” contains the pleading, explanation and submissions of the assessee on various Grounds raised in the Appeal-Memo pending before Ld. CIT(A) for adjudication. Ld. AR submitted that the “written- submission” is not only in accordance with the provisions of section 250 of the act but also in consonance with the established procedures of appeal- proceeding. Ld. AR submitted that it is totally erroneous on the part of Ld. CIT(A) to reject this “written-submission” filed by the assessee and to decide the appeal on the basis of AO’s findings. For the sake of completeness, Ld. AR further submitted that it is not a case where the evidences or additional evidences are rejected, it is a case where “written- submission” has been rejected. Ld. AR submitted that since the Ld. CIT(A) has passed an order without considering “written submission” of assessee, the order is absolutely unlawful and deserves to be set aside. Therefore, the Ld. AR requested us to refer this matter back to the file of Ld. CIT(A) ITA No238/Ind/2021 Shri Ramswaroop Shivhare A.Y. 2009-10 Page 5 of 6 with a direction to decide the appeal afresh on merit after considering the submissions of assessee. 6. Ld. DR did not oppose the submission and request made by Ld. AR. 7. Having perused the material on record and after due consideration of the submissions of both sides, we are of the considered view that by not admitting the “written submission” of the assessee, the order passed by Ld. CIT(A) is not sustainable. Therefore, in our considered view, it is a fit case for remanding the matter back to the Ld. CIT(A). Accordingly, we set aside the order of Ld. CIT(A) and refer this case back to him for deciding afresh on merit after giving opportunity to the assessee and considering the submission as may be made by the assessee. Accordingly, we allow Ground No. 1. GROUND No. 2 to 11: 8. Since we have already allowed Ground No. 1 and referred the matter back to the Ld. CIT(A), there is no need to adjudicate other Grounds at this stage. DISPOSITION: 9. In the result, this appeal of assessee is allowed for statistical purpose. Order pronounced as per Rule 34 of I.T.A.T. Rules 1963 on 22.06.2022. Sd/- Sd/- (MADHUMITA ROY) (B.M. BIYANI) Judicial Member Accountant Member Indore, दनांक /Dated : 22.06.2022 ITA No238/Ind/2021 Shri Ramswaroop Shivhare A.Y. 2009-10 Page 6 of 6 Patel/ Sr. P.S. Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore 1. Date of taking dictation 2. Date of typing & draft order placed before the Dictating Member 3. Date on which the approved draft comes to the Sr. P.S./P.S. 4. Date on which the fair order is placed before the Dictating Member for pronouncement 5. Date on which the file goes to the Bench Clerk 6. Date on which the file goes to the Head Clerk 7. Date on which the file goes to the Assistant Registrar for signature on the order 8. Date of dispatch of the Order