Shri Hasmukh B. Shah, Surat V. The Income Tax Officer, Ward-3(1)(1), Surat

ITA 25/SRT/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1840 (ITAT-SURAT)
• Duration Of Justice: 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 23-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Cost of acquisition; Tax effect
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER ITA NO.25/SRT/2019 ASSESSMENT YEAR: 2010-11 / VS. ( APPELLANT ) SHRI HASMUKH B SHAH, A/703, STUTI HIGHLAND SOCIETY, NR.MATHURA NAGARI, PALANPORE GAM, SURAT. ( REVENUE ) THE INCOME TAX OFFICER, WARD-3(1)(1), SURAT. P.A.N: AQKPS 9449 R APPELLANT BY SH R I SAPNESH R.SHETH CA RESPONDENT BY SHRI PRASOON KABRA SR. DR DATE OF HEARING: 2 6 . 0 2 .201 9 DATE OF PRONOUNCEMENT : 27 . 0 2 .201 9 / O R D E R PER KUL BHARAT, J.M : 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX (APPEALS)-3, SURAT [IN SHORT THE CIT(A)] DATED 12.12.2018 PERTAINING TO ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : S.NO. GROUNDS OF APPEAL TAX EFFECT RELATING TO EACH GROUND OF APPEAL) 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN PASSING EX-PARTE ORDER WITHOUT PROVIDING REASONABLE OPPORTUNITY OF HEARING TO ASSESSEE NIL 2. ON THE FACTS AND 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 ASSESSING NIL OFFICER IN REOPENING ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE I.T.ACT, 1961. 3 ON THE FACTS AND 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 ASSESSING OFFICER IN MAKING ADDITION OF RS.13,04,000/- AS UNEXPLAINED CASH CREDIT U/S.68 OF THE I.T.ACT. RS.3,50,060/- 4 ON THE FACTS AND 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 ASSESSING OFFICER IN MAKING ADDITION OF RS.1,03,055/- AS LONG TERM CAPITAL GAIN BY WRONGLY REDUCING THE COST OF ACQUISITION OF PROPERTY SOLD BY ASSESSEE. RS.18,940/- 5 IT IS THEREFORE PRAYED THAT ABOVE ADDITION MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME- TAX(APPEALS) MAY PLEASE BE DELETED. 3. IN THIS CASE, THE ASSESSEE HAS FILED AN APPLICATION SEEKING EARLY HEARING ON THE GROUND THAT THE IMPUGNED ORDER HAD BEEN PASSED EX- PARTE TO THE ASSESSEE AND THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY BY LD.CIT(A). THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE WOULD APPEAR BEFORE THE LD.CIT(A) AND WOULD NOT TO SEEK ADJOURNMENT AND HE FURTHER ASSURED THAT THE ASSESSEE CO-OPERATE IN THE APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A), IF THE MATTER IS SET-ASIDE TO THE LD.CIT(A). 4. CONSIDERING THE TOTALITY OF THE FACTS AND MORE PARTICULARLY WHEN THE IMPUGNED ORDER IS EX-PARTE TO THE ASSESSEE THE APPEAL WAS TAKEN UP FOR HEARING OUT OF TURN. ARGUMENTS OF THE PARTIES HEARD. KEEPING IN VIEW THE FACT THAT THE LD.CIT(A) HAD GIVEN THREE ADJOURNMENTS TO THE ASSESSEE DURING THE APPELLATE PROCEEDINGS. A COST OF RS.2,000/- IS IMPOSED ON THE ASSESSEE, THE IMPUGNED ORDER IS SET-ASIDE SUBJECT TO THE PAYMENT OF COST OF RS.2,000/-. 5. THE ASSESSEE WOULD COLLECT THIS ORDER AND APPEAR BEFORE THE LD.CIT(A) SUO MOTO, THEREAFTER, LD.CIT(A) AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE DECIDE THE APPEAL AFRESH. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 27.02.2019. SD/- (O.P.MEENA) SD/- (KUL BHARAT) ACCOUNTANT MEMBER JUDICIALMEMBER SURAT; DATED : 27/02/2019 / S.GANGADHARA RAO/SR.PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUARD FILE. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT