Shri Hirenbhai Revabhai Patel, Visnagar V. The Income tax Officer,Patan Ward-3, Mehsana

ITA 2561/AHD/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6900 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 01-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER 1. !./ I.T.A. NO.2561/AHD/2012 A.Y. 2008-09 2. !./ I.T.A. NO.2562/AHD/2012 A.Y. 2008-09 1. HIRENBHAI REVABHAI PATEL E 401 SIDDHIRAJ ZOLD SARAGASAN CROSS ROAD GANDHINGAR 382 421 PAN:ABOPP 6064 G 2. HIRENBHAI REVABHAI PATEL (HUF) E 401 SIDDHIRAJ ZOLD SARAGASAN CROSS ROAD GANDHINGAR 382 421 PAN: AAEHP 8425 L / VS. 1. ITO PATAN WARD-3, MEHSANA 2. ITO PATAN WARD-3, MEHSANA ( &' / // / APPELLANTS ) .. ( ()&' / RESPONDENT ) ASSESSEES BY : SHRI TUSHAR HEMANI, A.R. REVENUE BY : SHRI M.K.SINGH, SR.D.R. ' * + $, / / / / DATE OF HEARING 01/09/2014 -./ + $, / DATE OF PRONOUNCEMENT 01/09/2014 0 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THESE TWO APPEALS, ONE IN THE INDIVIDUAL CAPACITY AND ANOTHER IN THE CAPACITY OF KARTA HUF ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-GANDHINAGAR (CIT(A) IN SHORT) BOTH IDENTICALLY DATED 03/09/2012 PERTAININ G TO ASSESSMENT YEAR ITA NOS.2561 & 2562/AHD/ 2012 HIRENBHAI REVABHAI PATEL VS. ITO HIRENBHAI REVABHAI PATEL HUF VS. ITO RESPECTIVELY ASST.YEAR 2008-09 - 2 - (AY) 2008-09. SINCE THE FACTS AND GROUNDS ARE IDE NTICAL, BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. T HE ASSESSEE HAS RAISED THE FOLLOWING COMMON GROUNDS OF APPEAL, EXCEPT QUAN TUM IN APPEALS (EXTRACTED FROM ITA NO.2561/AHD/2012): 1. ON THE FACTS AS WELL AS IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE ORDER PASSED BY THE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS), GANDHINAGAR IS BAD IN LAW AND WITHOUT VALID JURISDICTION. 2. ON THE FACTS AS WELL AS IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) HAS ERRED IN SUSTAINING ADDITION FOR RS.10,84,915/- ON ACCOUNT OF DISALLOWANCE INTEREST CLAIMED BY THE APPELLANT, WHE N NO SUCH ADDITION IS JUSTIFIED. THE SAME MAY BE DELETED. 3. ON THE FACTS AS WELL AS IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE LEARNED COMMISSIONER OF INCOME TAX ( APPEAL) HAS ERRED IN CONFIRMING THE ADDITION FOR RS.9,30,950/- ON ACCOUNT OF ALLEGED UNEXPLAINED OPENING BALANCE SHOWN IN CASH B OOK WHEN NO SUCH ADDITION IS JUSTIFIED. THE SAME MAY KINDLY BE DELETED. 4. ON THE FACTS AS WELL AS IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE LEARNED COMMISSIONER OF INCOME TAX ( APPEAL) HAS ERRED IN CONFIRMING THE ADDITION FOR RS.30,00,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDITS IN BANK ACCOUNT, W HEN NO SUCH ADDITION IS JUSTIFIED. THE SAME MAY KINDLY BE DELE TED. 5. THE APPELLANT CRAVES LEAVE TO ADD, DELETE, ALTER AN D AMEND ANY OF THE GROUND/S OF APPEAL ON OR DURING THE APPELLATE P ROCEEDINGS. 2. AT THE OUTSET, LD.COUNSEL FOR THE ASSESSEE SUBM ITTED THAT BOTH THE APPEALS WERE DISMISSED EX-PARTE QUA THE ASSESSEE BY THE LD.CIT(A). HE SUBMITTED THAT THE NOTICE OF HEARING COULD NOT BE S ERVED UPON THE ASSESSEE DUE TO CHANGE IN ADDRESS. HE SUBMITTED TH AT FORM NO.36 HAS BEEN REVISED AND FRESH ADDRESS HAS BEEN FURNISHED. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT BEFORE THE LD.CIT(A) THERE WAS CHANGE IN THE ITA NOS.2561 & 2562/AHD/ 2012 HIRENBHAI REVABHAI PATEL VS. ITO HIRENBHAI REVABHAI PATEL HUF VS. ITO RESPECTIVELY ASST.YEAR 2008-09 - 3 - ADDRESS, THEREFORE THE NOTICE OF HEARING COULD NOT BE SERVED UPON THE ASSESSEE AND THE LD.CIT(A) PROCEEDED THE APPEALS EX-PARTE . HE SUBMITTED THAT THE ASSESSEE UNDERTAKES TO APPEAR BE FORE THE LD.CIT(A) AND CO-OPERATE IN THE PROCEEDINGS. 3. ON THE CONTRARY, LD.SR.DR SUBMITTED THAT THE CON DUCT OF THE ASSESSEE HAS BEEN NEGLIGENT DOES NOT DESERVE ANY IN TERFERENCE BY THIS TRIBUNAL, HOWEVER HE CONCEDED THAT IN THE INTEREST OF NATURAL JUSTICE, THIS TRIBUNAL MAY TAKE APPROPRIATE DECISION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) HAS OBSERVED VIDE PARA-2 OF HIS ORDER, AS UNDER:- 2. THE FIRST NOTICE OF HEARING IN APPEAL WAS ISSUED ON 23/6/2011 AND THE CASE FIXED FOR 6/7/2011. NO ONE ATTENDED AND THEREFORE, THE CASE WAS REFIXED FOR 30/08/2011 BY I SSUING ANOTHER NOTICE. ADJOURNMENT WAS SOUGHT ON THAT DATE AND IT WAS REQU ESTED THAT THE CASE BE RE-FIXED AFTER TWO WEEKS. ALLOWIN G THE REQUEST, THE CASE WAS ADJOURNED TO 12/9/2011. THEREFORE, REPEAT ED ADJOURNMENTS HAVE BEEN SOUGHT ON ONE PRETEXT OR THE OTHER; AND ADJOURNMENTS WERE GIVEN AS PER THE REQUEST OF THE A R TILL 23/02/2012 AS TABULATED BELOW: DATE OF HEARING ADJOURNMENT REQUESTED FOR ADJOURNMENT ALLOWED FOR 6/7/201 NO COMPLIANCE 30/08/2011 TWO WEEKS 12/9/2011 ITA NOS.2561 & 2562/AHD/ 2012 HIRENBHAI REVABHAI PATEL VS. ITO HIRENBHAI REVABHAI PATEL HUF VS. ITO RESPECTIVELY ASST.YEAR 2008-09 - 4 - 4/10/2011 TWO WEEKS 18/10/11 18/10/11 TWO WEEKS 15/11/2011 15/11/2011 NO ONE ATTENDED AGAIN THE CASE WAS FIXED BY ISSUING NOTICE DATED 0/ 2/2012 FOR 23/2/2012. ON THAT DATE, SHRI NITIN PARIKH, CA AD AR ATTENDED AND STATED THAT HE IS NO LONGER REPRESENTING THE AP PELLANT AS THE APPELLANT IS NOT RESPONDING TO THEM. THEREAFTER, A FRESH NOTICE DATED 17/8/2012 FIXING THE CASE FOR 30/8/2012 WAS S ENT TO THE ADDRESS OF THE APPELLANT AS MENTIONED IN FORM NO.35 BUT IT WAS RETUNED BACK BY THE POSTAL AUTHORITIES WITH THE REM ARKS LEFT. IN THESE CIRCUMSTANCES, WHERE THE AR HAS STATED THAT T HERE WAS NO RESPONSE EVEN TO HIM AND THE APPELLANT HAS NOT EVEN GIVEN HIS NEW ADDRESS; I PROCEED TO DECIDE THE CASE ON MERITS ON THE BASIS OF ASSESSMENT ORDER, STATEMENT OF FACTS AND GROUNDS OF APPEAL. 4.1. WE FIND THAT EVEN BEFORE THIS TRIBUNAL (ITAT C BENCH, AHMEDABAD VIDE ORDER DATED 26/03/2013) THE APPEALS WERE DISMISSED ON THE GROUND OF NON-SERVICE OF NOTICE OF HEARING. T HE LD.COUNSEL FOR THE ASSESSEE HAS REVISED THE FORM NO.36 AND FURNISHED T HE CURRENT ADDRESS. DURING THE COURSE OF HEARING, LD.COUNSEL FOR THE AS SESSEE ASSURED THAT HE WOULD ENSURE THAT THE ASSESSEE WOULD NOT TAKE ANY U NNECESSARY ADJOURNMENT. HE ALSO ENSURED THAT THE REQUISITE MA TERIAL AS CALLED FOR BY THE LD.CIT(A) WOULD BE FURNISHED. AFTER CONSIDERING THE TOTALITY OF THE FACTS, WE ARE OF THE CONSIDERED VIEW THAT IT WOULD SUBSERVE THE INTEREST OF JUSTICE IF THE ASSESSEE IS GIVEN ANOTHER OPPORTUNIT Y TO REPRESENT HIS CASES BEFORE THE LD.CIT(A). THEREFORE, THE GROUNDS RAISE D IN BOTH THE APPEALS ARE RESTORED BACK TO THE FILE OF LD.CIT(A) FOR DECI SION AFRESH. THE ASSESSEE(S) WOULD FURNISH A COPY OF THIS ORDER TO L D.CIT(A) FOR FIXING THE DATE OF HEARING OF THE APPEALS. THEREAFTER, THE LD .CIT(A) WOULD DECIDE ITA NOS.2561 & 2562/AHD/ 2012 HIRENBHAI REVABHAI PATEL VS. ITO HIRENBHAI REVABHAI PATEL HUF VS. ITO RESPECTIVELY ASST.YEAR 2008-09 - 5 - THESE APPEALS AS EXPEDITIOUSLY AS POSSIBLE AFTER RE CEIPT OF THIS ORDER. NEEDLESS TO SAY THAT LD.CIT(A) WOULD AFFORD REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE( S) ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF HEARI NG, ON MONDAY THE 1 ST SEPTEMBER, 2014 AT AHMEDABAD SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER 3,.., .../ T.C. NAIR, SR. PS 01 SEPT.2014 0 + ($4 54/$ 0 + ($4 54/$ 0 + ($4 54/$ 0 + ($4 54/$/ COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. !! $ '6 / CONCERNED CIT 4. '6() / THE CIT(A)-GANDHINAGAR 5. 4 #7 ($ , , / DR, ITAT, AHMEDABAD 6. 789 :* / GUARD FILE. 0' 0' 0' 0' / BY ORDER, )4$ ($ //TRUE COPY// ; ;; ;/ // / !< !< !< !< ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..1.9.14 (DICTATION-PAD 4-PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..1.9.14 OTHER 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 D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BAC K TO THE SR.P.S./P.S.01/09/2014 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 01/09/2014 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER