Smt. Harsha Parag Vora L/h. of late Paragbhai N.Vora, Bhavnagar V. The ACIT.,Circle-2, Bhavnagar

ITA 2476/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9153 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 06-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Unexplained cash credit; Principle of natural justice; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO. 2476/AHD/2012 ASSESSMENT YEAR :2008-09 SMT. HARSHA PARAG VORA L/H OF LATE PARAGBHAI N. VORA PROP. SHREENATH ENTERPRISE, LOKHAND BAZAR, BHAVNAGAR 364001 V/S . THE ACIT, CIRCLE-2, BHAVNAGAR PAN NO. AAUPV9275E (APPELLANT) .. (RESPONDENT) ' / BY ASSESSEE SHRI TUSHAR HEMANI, A.R. $ ' / BY REVENUE SMT. SONIA KUMAR, SR. D.R. % ' /DATE OF HEARING 17.02.2016 &'() ' / DATE OF PRONOUNCEMENT 22.03.2016 O R D E R PER : SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT(A)-XX, AHMEDABAD, DATED 04.09.2012 FOR THE ASSESSMENT YEAR 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: 3. THE ASSESSEE IS AN INDIVIDUAL STATED TO BE A WHO LESALE DEALER OF OLD AND USED D. G. SET, SPARE PARTS OF D. G. SET ETC. AND A LSO ENGAGED IN TRADING OF SHARES AND SECURITIES. ASSESSEE ELECTRONICALLY FIL ED HIS RETURN OF INCOME FOR A.Y. 2008-09 ON 30.09.2008 DECLARING TOTAL LOSS OF RS.75,49,587/-. THE CASE ITA NO.2476/AHD/2012 A.Y. 08-09 [SMT. HARSHA PARAG VORA VS. ACIT] PAGE 2 WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S.143(3) VIDE ORDER DATED 24.12.2010 AND THE TOTAL LOSS WAS ASSES SED AT RS.56,31,056/-. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESS EE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO VIDE ORDER DATED 04.09.2012 GRAN TED PARTIAL RELIEF TO ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), AS SESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 10,00,000/- MADE U/S 68 IN RESP ECT OF UNEXPLAINED CASH CREDIT. ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) OUGHT TO HAVE DELETED THE SAID ADDITION. THE SAME BE HELD SO NOW. 2. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDER S WITHOUT PROPERLY APPRECIATING THE FACT AND THAT THEY FURTHER ERRED IN GROSSLY IGNORIN G VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIM E TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF THE LOWER AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLE S OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 4. DURING COURSE OF ASSESSMENT PROCEEDINGS, A.O. NO TICED THAT ASSESSEE HAS TAKEN UNSECURED LOAN FROM VARIOUS PARTIES INCLUDING A LOAN OF RS.10 LACS FROM CHAWLA MACHINE PVT. LTD. ASESSEE WAS ASKED TO FURN ISH THE PAN NO., ADDRESS AND CONFIRMATION OF THE LENDER. BEFORE A.O., ASSES SEE SUBMITTED THAT SHE CANNOT FURNISH THE CONFIRMATION FROM CHAWLA MACHINE PVT. L TD. BECAUSE SHE HAS DISPUTE WITH THE PARTY. THE SUBMISSION OF THE ASSE SSEE WAS NOT FOUND ACCEPTABLE TO THE A.O. HE, THEREFORE, CONSIDERED T HE UNSECURED LOAN OF RS.10LACS OBTAINED BY THE ASSESSEE FROM CHAWLA MACH INE PVT. LTD. AS UNEXPLAINED AND MADE ADDITION U/S. 68 OF THE ACT. 5. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, AS SESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO UPHELD THE ADDITION MADE BY THE A.O. BY HOLDING AS UNDER: 10.3. IN THE ASSESSMENT ORDER, AO OBSERVED THAT TH E APPELLANT FAILED TO FURNISH CONFIRMATION FROM M/S.CHAWLA MACHINE PVT. LTD. FROM WHOM UNSECURED LOAN WAS OBTAINED AND THEREFORE THE SAID SUM WAS BEING ADDED U/S.68. IN THE WRITTEN SUBMISSIONS FILED, IT WAS CONTENDED BY THE .A.R. TH AT IN VIEW OF CERTAIN DISPUTE WITH THE PARTY CONFIRMATION COULD NOT BE PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDINGS; COPY OF CONFIRMATION, ANNUAL STATEMENT OF ACCOUNT AND COPY OF THE ACKNOWLEDGEMENT OF RETURN OF INCOME FILED BY THE CR EDITOR WERE BEING FILED DURING THE COURSE OF APPELLATE PROCEEDINGS WITH A REQUEST TO A DMIT THE ADDITIONAL EVIDENCE. COPY OF THE REMAND REPORT WAS FURNISHED TO THE APPELLANT AS AN ENCLOSURE TO THIS OFFICE ITA NO.2476/AHD/2012 A.Y. 08-09 [SMT. HARSHA PARAG VORA VS. ACIT] PAGE 3 NOTICE DT.23.04.2012, FIXING THE HEARING ON 07.05.2 012. THE SAID NOTICE WAS DULY SERVED BY RPAD. NONE ATTENDED ON THAT DAY. ONCE AGA IN, VIDE THIS OFFICE NOTICE DT. 20.06.2012, THE CASE WAS FIXED FOR HEARING ON 21.08 .2012. THIS NOTICE WAS ALSO SERVED BY RPAD. APPELLANT DID NOT RESPOND. THUS, THE APPEL LANT CHOSE NOT TO FILE ANY REJOINDER TO THE REMAND REPORT TILL DATE. IN VIEW O F THE OBSERVATIONS OF THE A.O. IN THE REMAND REPORT (WHICH REMAIN UNCONTROVERTED), I AM O F THE VIEW THAT NO INTERFERENCE IS CALLED FOR. IMPUGNED ADDITION IS UPHELD. THIS GROUN D OF APPEAL IS DISMISSED. 6. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE I S NOW IN APPEAL BEFORE US. 6.1 BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND LD. CIT(A) AND FURTHER SUBMITTED THAT T HOUGH LD. CIT(A) HAD CALLED FOR REMAND REPORT FROM A.O. AND WHICH WAS SUBMITTED BY THE A.O., BUT, SINCE ASSESSEE COULD NOT FURNISH ITS REPLY TO THE REMAND REPORT, THE LD. CIT(A) UPHELD THE ORDER OF A.O. HE THEREFORE SUBMITTED THAT LD. CIT(A) SHOULD HAVE GIVEN SOME MORE TIME TO ASSESSEE TO FURNISH ITS REPLY TO THE REMAND REPORT. LD. A.R. FURTHER SUBMITTED THAT LD. CIT(A) HAS ALSO NOT PASS ED A SPEAKING ORDER ON THE ISSUE. HE THEREFORE SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE MATTER MAY BE SET ASIDE TO THE FILE OF LD. CIT(A), SO THAT, ASSES SEE COULD FURNISH ITS SUBMISSION AND THEREAFTER THE MATTER BE DECIDED BY LD. CIT(A). LD. D.R., ON THE OTHER HAND, SUPPORTED THE ORDERS OF A.O. AND LD. CIT(A) AND OBJ ECTED TO THE PLEA OF LD. A.R. OF GRANTING ONE MORE OPPORTUNITY TO PRESENT ITS CAS E BEFORE LD. CIT(A) AND SUBMITTED THAT GRANTING OF SECOND INNING TO ASSESSE E SHOULD NOT BE ENCOURAGED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO CO NFIRMATION OF ADDITION U/S.68 OF THE ACT. IN THE PRESENT CASE, WE FIND THAT LD. CIT (A) HAD CALLED FOR REMAND REPORT FROM A.O. AND THEREAFTER HAD ASKED THE ASSES SEE TO FILE ITS REPLY AND GIVE THE COMMENTS TO THE REMAND REPORT. LD. CIT(A) HAS NOTED THAT DESPITE OPPORTUNITY GRANTED TO ASSESSEE, NO REPLY TO THE RE MAND REPORT WAS FURNISHED BY ASSESSEE. HE, THEREFORE, PROCEEDED TO UPHELD THE A DDITION MADE BY A.O. BEFORE US, LD. A.R. HAS SUBMITTED THAT THE ASSESSEE BE GRA NTED ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE THE LD. CIT(A) AND FURTHER ASSURED THAT ALL THE REQUIRED ITA NO.2476/AHD/2012 A.Y. 08-09 [SMT. HARSHA PARAG VORA VS. ACIT] PAGE 4 DETAILS WILL BE FILED BEFORE THE LD. CIT(A). IT IS ALSO A FACT THAT ASSESSEE DID NOT FURNISH THE REPLY SOUGHT BY LD. CIT(A) ON THE REMAN D REPORT RECEIVED FROM A.O. CONSIDERING THE AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE BE GRANTED ONE MORE OPPORTUNITY TO PRE SENT ITS CASE BEFORE LD. CIT(A) BUT AT THE SAME TIME APATHY OF THE ASSESSEE TOWARDS THE PROCEEDINGS BEFORE LOWER AUTHORITIES WITHOUT ANY REASONABLE CAU SE ALSO CANNOT BE ENCOURAGED. SO IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CIT(A) TO HIS FILE WITH DIRECTION TO DECIDE THE ISSUE IN ACCO RDANCE WITH LAW AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE AS SESSEE AND SUBJECT TO THE ASSESSEE MAKING A PAYMENT OF COST OF RS. 500/- TO T HE LEGAL AID AND PRODUCING THE PROOF OF PAYMENT BEFORE LD. CIT(A). FURTHER WE ALSO DIRECT THE ASSESSEE TO SUO MOTU APPEAR BEFORE LD. CIT(A) WITHIN 1 MONTH FR OM THE DATE OF THE ORDER OF THE TRIBUNAL FOR RECEIVING THE DATE OF HEARING FROM HIM. IN THE RESULT, THE GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPO SES. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 22/03/2 016 SD/- SD/- ( SHAILENDRA KUMAR YADAV) (ANIL CHA TURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD: DATED. 22/03/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- *+ , -. / APPELLANT /+ 01-. / RESPONDENT 2+ 345 6 / CONCERNED CIT 4+ 6- , / CIT (A) 9+ :; < 045 , 45) = 3 / DR, ITAT, AHMEDABAD 6+ < ?@ A B / GUARD FILE. BY ORDER/ ,/= ,$ , 45) = 3