Shri Nandkishor D.Desai, Ahmedabad V. The Income tax Officer,Ward-10(3), Ahmedabad

ITA 2593/AHD/2011

• Counselvise Citation: 259320514 RSA 2011
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 19-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: ANKIT TALSANIA
• Keywords: Opportunity of being heard; Principle of natural justice; Initiation of penalty proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH SHRI NANDKISHOR D. DESAI, C/3, ADITI APARTMENTS, NR. BRAHMKSHISTRYA CO. OP. SOCIETY, ELLISBRIDGE, AHMEDABAD- 38006 PAN: AATPD6240J (APPELLANT) VS THE INCOME TAX OFFICER, WARD-10(3), SURAT (RESPONDENT) ASSESSEE BY: SRI ANKIT TALSANIA, A.R . REVENUE BY: SRI B.L. YADAV, SR .D.R. DATE OF HEARING : 16-09-2013 DATE OF PRONOUNCEMENT : 16-09-20 13 / ORDER PER : B.P. JAIN, ACCOUNTANT MEMBER:- THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD. CIT(A)-XVI AHMEDABAD DATED 08-08-2011 FOR THE ASSESSMENT YEAR 2008-09. ITA NO. 2593/AHD/2011 ASSESSMENT YEAR 2008-09 I.T.A NO. 2593/AHD/2011 A.Y. 2008-09 PAGE NO SRI NANDKISHOR D. DESAI VS. ITO 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1. THE LD. C1T(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE PASSING EX-PARTE ORDER WITHOUT ACCORDING ANY ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 2. THE LD. C1T(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS. L,06,164/- U/S 69 OF THE ACT BEING UNEXPLAINED INV ESTMENT. 3. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN ISSUING THE ORDERS WITHOUT PROPERLY APPRECIATING TH E FACT AND THAT HE FURTHER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSIO NS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIM E TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IM PUGNED ORDER. THIS ACTION OF BOTH THE AUTHORITIES IS IN CLEAR BRE ACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVE S TO BE QUASHED. 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE LD. AO IN LEVYING INTEREST U/S. 234B/C OF THE ACT. 5. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE INITIATION OF PENALTY PROCEEDINGS U/ S. 271(1)(C) OF THE ACT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE, SRI ANKIT TALSANIA INVITED OUR ATTENTION TO ORDER OF LD. CIT(A) AT PAGE 1 THAT THE RE IS NO DATE MENTIONED FOR ISSUE OR SERVICE OF NOTICE BY THE LD. CIT(A). IN F ACT THE ASSESSEE HAS NOT BEEN SERVED ANY NOTICE. THE LEARNED COUNSEL ACCORD INGLY PRAYED THAT THE MATTER IS SET ASIDE TO THE FILE OF LD. CIT(A) FOR R E-ADJUDICATION AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. LD . COUNSEL FURTHER INVITED OUR ATTENTION TO PAPER BOOK PAGE NO. 3 AND 5 OF T HE RETURN OF INCOME AT THE PAPER BOOK PLACED ON RECORD THAT THE ASSESSEE HAD C LAIMED SHORT TERM CAPITAL GAIN OF RS. 95,606/- WHICH IN FACT IS FROM THE SALE PROCEEDS OF IPO OF ICICI I.T.A NO. 2593/AHD/2011 A.Y. 2008-09 PAGE NO SRI NANDKISHOR D. DESAI VS. ITO 3 LTD, CENTRAL BANK OF INDIA AND POWER GRID LTD WHERE AS THE AO HAS MENTIONED THAT INVESTMENT IS MADE IN THE NATIONAL S TOCK EXCHANGE AMOUNTING TO RS. 1,06,164/-. THE LD. AR INVITED OUR ATTENTIO N TO PARA 3 AND 3.1 OF AOS ORDER THAT THE AO HAS WRONGLY MENTIONED THAT INVEST MENT HAS BEEN MADE IN NSE BUT THE SAME HAS BEEN MADE IN THE ICICI LTD ETC MENTIONED HEREINABOVE. THESE DETAILS WERE AVAILABLE BEFORE T HE AO IN THE COMPUTATION OF INCOME ITSELF. 4. LD. DR ON THE OTHER HAND AGREED FAIRLY TO SET AS IDE THE MATTER TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION AFTER PROVID ING ADEQUATE OPPORTUNITY OF BEING HEARD. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE FACTS OF THE CASE, THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE D ID NOT GET THE OPPORTUNITY OF BEING HEARD AND THE CASE HAS BEEN DECIDED EX-PARTE. THERE IS NOTHING ON RECORD BROUGHT BY LD. DR THAT THE NOTICE HAS BEEN S ERVED ON THE ASSESSEE. THE ARGUMENTS MADE BY LEARNED COUNSEL FOR THE ASSES SEE HAVE BEEN CONSIDERED AND THE LD DR HAS FAIRLY AGREED TO SET T HE MATTER ASIDE TO THE FILE OF LD. CIT(A) FOR ADJUDICATION AS MENTIONED HEREINA BOVE. 6. IT WILL ALSO BE IN THE INTEREST OF JUSTICE TO SE T ASIDE THE MATTER TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION BUT BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY THE MATTE R IS SET ASIDE TO THE FILE OF LD. CIT(A) IN VIEW OF OUR FINDINGS HEREINABOVE. AC CORDINGLY ALL THE GROUNDS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. I.T.A NO. 2593/AHD/2011 A.Y. 2008-09 PAGE NO SRI NANDKISHOR D. DESAI VS. ITO 4 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSE. ORDER IS PRONOUNCED IN OPEN COURT ON 16-09-201 3 SD/- ( B. P. JAIN) ACCOUNTANT MEMBER AHMEDABAD : DATED 16/09/2013 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,