Shri Dipakkumar Chunilal Patel, Ahmedabad V. The Income Tax Officer, Ward-1, Mehsana

ITA 244/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2501 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 31-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Assessee Lawyers: BIREN SHAH
• Keywords: Opportunity of being heard
• Section: 133(6); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) ITA. NO: 244/AHD/2017 (ASSESSMENT YEAR: 2008-09) DIPAKKUMAR CHUNILAL PATEL B/7, SUDARSHAN FLAT, NR. TAPOVAN SOCIETY, ANIL STARCH ROAD, SARASPUR, AHMEDABAD-380018 V/S INCOME TAX OFFICER, W ARD- 1, MEHSANA (APPELLANT) (RESPONDENT) PAN: AISPP5351P APPELLANT BY : SHRI BIREN SHAH, AR RESPONDENT BY : SHRI ALBINUS TIRKEY, SR. D.R . ( )/ ORDER DATE OF HEARING : 31 -07-201 8 DATE OF PRONOUNCEMENT : 28 -08-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST AN EX PARTE ORDER OF THE LD. CIT(A), GANDHINAGAR AHMEDABAD DATED 08.11.2016 PERT AINING TO A.Y. 2008- 09. ITA NO. 244/ AHD/2017 . A.Y. 2008-09 2 2. THE FACTS OF THE CASE ARE THAT THE AO NOTICED FROM AIR DATA THAT APPELLANT HAD MADE CASH DEPOSITS OF RS.10,02,000/-IN SB ACCOUNT H ELD WITH MEHSANA URBAN CO-OP. BANK LTD. ON THE BASIS OF THIS INFORMATION, AFTER RECORDING THE REASONS FOR REOPENING NOTICE U/S 148 WAS ISSUED BY THE AO. IN RESPONSE, NO RETURN OF INCOME IS FILED BY THE APPELLANT. A COPY OF BANK AC COUNT WAS CALLED FOR FROM THE BANK BY THE AO U/S 133(6) ALONG WITH KYC FORMS OF THE APPELLANT. OR. SCRUTINY OF THE SAME, IT WAS FOUND THAT ACCOUNT OF THE APPELLANT HAD BEEN CREDITED WITH RS.10,02,000/- IN CASH FOR WHICH NO E XPLANATION WAS OFFERED BY THE APPELLANT NOR ANY RETURN HAS BEEN FILED IN RESP ONSE TO NOTICE U/S 148 ISSUED. AFTER ISSUING STATUTORY NOTICES, THE AO ON THE BASI S OF DATA COLLECTED FROM THE BANK; AO HELD THAT THE AMOUNT OF RS.10,02,000/- REP RESENTED UNDISCLOSED EXPLAINED INCOME OF THE APPELLANT AND MADE THE ADDI TION U/S 68 OF THE IT ACT. 3. AGAINST THE SAID ORDER, ASSESSEE PREFERRED FIRST ST ATUTORY APPEAL BEFORE THE LD. CIT(A) AND LD. CIT(A) ISSUED NOTICE THROUGH SPEED P OST DATED 01.07.2016 FIXING THE DATE ON 12.08.2016 BUT ASSESSEE DID NOT APPEAR. THEN AGAIN NOTICE WAS SERVED TO THE ASSESSEE BUT TO NO AVAIL. SO IN T HESE CIRCUMSTANCES, LD. CIT(A) PASSED AN EX PARTE ORDER AND CONFIRMED THE ORDER PA SSED BY THE A.O. 4. NOW IN APPEAL IS BEFORE US. 5. LD. A.R. STATED THAT APPELLANT DID NOT RECEIVE ANY OF THE NOTICES ISSUED BY THE LEARNED C.I.T. (APPEALS) FOR THE REASON THAT THERE WAS A CHANGE OF ADDRESS AS THE APPELLANT HAD SHIFTED FROM MEHSANA TO AHMEDABAD . THE NOTICES WERE ISSUED BY THE LEARNED C.I.T. (APPEALS) AT THE OLD A DDRESS WHICH WERE NEVER RECEIVED BY THE APPELLANT. THE APPELLANT CAME TO KN OW ABOUT THIS FROM THE ASSESSING OFFICER UPON WHICH IMMEDIATELY THE APPELL ANT FILED A LETTER DATED ITA NO. 244/ AHD/2017 . A.Y. 2008-09 3 27TH OCTOBER, 2016 TO THE LEARNED C.I.T. (A) AND IN TIMATED ABOUT THE NEW ADDRESS AT AHMEDABAD AND ALSO REQUESTED TO GIVE NEX T OPPORTUNITY OF HEARING ON THE NEW ADDRESS. BUT APPELLANT DID NOT RECEIVE A NY COMMUNICATION FROM THE LD.CIT(A). IT IS PERTINENT TO MENTION HERE THAT LD. CIT(A) PASSED AN ORDER ON 8 TH NOVEMBER 2016. 6. IN OUR CONSIDERED OPINION, LD. CIT(A) SHOULD HAVE BEEN GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE. THUS, IN THESE CIRCUMS TANCES, WE SET ASIDE THE ORDER OF THE LD. CIT(A) TO HIS FILE TO DECIDE APPEA L AFRESH AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND APP ELLANT IS ALSO DIRECTED TO COOPERATE WITH THE LD. CIT(A) AND SUBMIT ALL THE DE TAILS TO THE LD. CIT(A) FOR SPEEDY DISPOSAL OF THE APPEAL. HOWEVER, LD. CIT(A) IS ALSO DIRECTED TO DISPOSE OF THIS APPEAL WITHIN SIX MONTHS FROM THE RECEIPT O F THIS ORDER. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 28- 08- 2018 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 28/08/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD