Prachi Jain, CHENNAI V. ITO N.C.Ward 5-4, CHENNAI

ITA 2573/CHNY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2735 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 05-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M. SUBASHRI
• Assessee Lawyers: LOKESH NAHATA
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 142(1); 20

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI . , . , BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A.NO.2573/CHNY/2018 / ASSESSMENT YEAR: 2015-16) SMT. PRACHI JAIN, NO.121, N.S.C. BOSE ROAD, SOWCARPET, CHENNAI 600 079. VS THE INCOME TAX OFFICER, NON-CORPORATE WARD 5(4), CHENNAI. PAN: AQIPJ1148G ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI LOKESH NAHATA, ADVOCATE / RESPONDENT BY : MS. M. SUBASHRI, JCIT /DATE OF HEARING : 19.02.2019 /DATE OF PRONOUNCEMENT : 20.02.2019 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI, DATED 29.06.2018 IN ITA NO.240/CIT(A)-5/2017-18 FOR THE ASSESSMENT YEAR 2015-16 PASSED U/S.250(6) R.W.S. 143(3) OF THE ACT. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HER APPEAL :- 2 ITA NO.2573/CHNY/2018 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE AND IS OPPOSED TO THE PRINCIPLES OF EQUITY, NATURAL JUSTICE AND FAIR PLAY 2 LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] OUGHT TO HAVE CONSIDERED THAT THE APPELLANT HAS FILED [1] ADJOURNMENT LETTER [2] SEEKING TIME WITH VALID REASON TO PROCURE THE JURISDICTIONAL HON'BLE TRIBUNAL ORDER & PERSONAL REASONS 2.1 CASE LAWS MENTIONED IN PAGE 27 AT PARA 4.2.1 & 4.2.2 ARE WITH RESPECT TO OTHER FACTS. 3 LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] OUGHT TO HAVE CONSIDERED THAT ASSESSING OFFICER SHOULD HAVE PROVED BEYOND ANY DOUBT THAT ALL THE PROOFS PRESENTED BY APPELLANT ARE INCORRECT INSTEAD OF RELYING A DISCRETE REPORT. 4 LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] OUGHT TO HAVE NOTICED THAT ASSESSING OFFICER SHOULD HAVE PROVIDED THE OPPORTUNITY TO THE APPELLANT TO GO THROUGH THE STATEMENT OF SRI SUNIL DOKANIA AND CROSS EXAMINE HIM, ON WHOSE STATEMENT THE COMMISSION IS DEEMED AS EXPENDITURE. 5 INTEREST CHARGED U/S 234A, 234 B, 234C IS ALSO DISPUTED IN THIS APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM OTHER SOURCES, FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2014-15 ON 01.01.2016 ADMITTING TOTAL INCOME OF RS.12,46,380/-. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S.143(2) & 142(1) OF THE ACT WAS ISSUED ON 02.08.2016 & 14.06.2017 RESPECTIVELY. FINALLY ASSESSMENT ORDER WAS PASSED U/S.143(3) OF THE ACT ON 21.12.2017 WHEREIN THE LD.AO 3 ITA NO.2573/CHNY/2018 MADE ADDITION OF RS.5,85,600/- AS UNEXPLAINED CREDIT U/S.68 OF THE ACT AND RS.17,568/- U/S.69C OF THE ACT. 4. AT THE OUTSET THE LD.AR SUBMITTED THAT THE LD.CIT(A) HAD PASSED AN EX-PARTE ORDER WITHOUT GRANTING ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. THE LD.AR FURTHER SUBMITTED THAT THE LD.CIT(A) HAS REJECTED THE ADJOURNMENT LETTER FILED BY THE ASSESSEE AND PASSED EX-PARTE ORDER. IT WAS THEREFORE PLEADED THAT ONE MORE OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE SO THAT THE ASSESSEE WOULD BE ABLE TO EXPLAIN THE BONAFIDE OF THE INVESTMENT MADE AND THE VALID CLAIM OF DEDUCTION 10(38) OF THE ACT. THE LD.AR FURTHER SUBMITTED THAT THE ASSESSEE HAS A FAIR CASE TO SUCCEED AND IF ANOTHER OPPORTUNITY FOR HEARING THE APPEAL IS DENIED, IT WOULD AMOUNT TO MISCARRIAGE OF JUSTICE TO THE ASSESSEE. THE LD.DR STRONGLY OPPOSED TO THE SUBMISSION OF THE LD.AR AND PLEADED FOR CONFIRMING THE ORDERS OF THE LD.REVENUE AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. FROM THE ORDER OF THE LD.CIT(A), IT APPEARS THAT ASSESSEE WAS NOT GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD. THE LD.CIT(A) HAS ALSO RECORDED IN HIS ORDER THAT HE HAD REJECTED 4 ITA NO.2573/CHNY/2018 THE ADJOURNMENT PETITION FILED BY THE ASSESSEE WITH RESPECT TO THE HEARING OF THE APPEAL POSTED ON 26.06.2018 IN PARA NO.4.1 TO 4.3 OF HIS ORDER. CONSIDERING THE PRAYER OF THE LD.AR, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR DE-NOVA CONSIDERATION THEREBY PROVIDING THE ASSESSEE WITH ONE MORE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO AT LIBERTY TO FILE ANY FRESH EVIDENCE BEFORE THE LD.CIT(A) AND IF THE ASSESSEE OPTS THE SAME, THE LD.CIT(A) IS HEREBY DIRECTED TO CONSIDER THE FRESH EVIDENCE IN ACCORDANCE WITH LAW AND MERIT AFTER OBTAINING REMAND REPORT FROM THE LD.AO. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 20 TH FEBRUARY, 2019 AT CHENNAI. SD/- SD/- ( ) (DUVVURU R.L REDDY) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER /CHENNAI, /DATED 20 TH FEBRUARY, 2019 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. /GF