Shri Aalap A.Modi, Ahmedabad V. The Income tax Officer,Ward-6(2), Ahmedabad

ITA 2677/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1168 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 25-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Assessee Lawyers: K C THAKOR
• Keywords: Business income; Opportunity of being heard

Judgement Text

SMC-ITA NO. 2677/AHD/2011 AALAP A. MODI VS. ITO ASSESSMENT YEAR: 2008-09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO.2677/AHD/2011 ASSESSMENT YEAR: 2008-09 AALAP A. MODI ...............APPELLANT 101, RAJVI ARCADE, OPP. GURUKUL, MEMNAGAR, AHMEDABAD -380052 PAN : AFAPM 5244 D VS. INCOME TAX OFFICER, ........................... .RESPONDENT WARD 6 (2), AHMEDABAD APPEARANCES BY: K C THAKOR, FOR THE APPELLANT ANTONY PARIATH, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JULY 5TH, 2016 DATE OF PRONOUNCING THE ORDER : JULY 7 TH , 2016 O R D E R BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HAS C HALLENGED CORRECTNESS OF LD. CIT(A)S ORDER DATED 26.08.2011, FOR ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. THE LEARNED C.I.T.(A) HAS ERRED IN LAW AND ON FAC TS IN NOT APPRECIATING THE FACTS OF THE CASE AS NARRATED IN THE STATEMENT OF FACTS AND IN PROCEEDING TO DISMISS THE APPEAL THEREBY CONFIRMING THE ADDITION OF RS. 10,93,000/-. 2. THE LEARNED C.I.T.(A) HAS FURTHER ERRED IN NOT APP RECIATING THE FACT THAT IT WAS THE APPELLANT'S CONTENTION IN THE STATEMENT OF FACTS BEF ORE HIM THAT THE CASH DEPOSITED IN THE BANK ACCOUNT WAS PART OF HIS BUSINESS RECEIPTS TH AT HAD ALREADY BEEN TAKEN INTO CONSIDERATION FOR ARRIVING AT THE TOTAL INCOME RETU RNED BY THE APPELLANT, AND SUCH RETURNED INCOME HAS BEEN ACCEPTED BY THE ASSESSING OF FICER. 3. THE LEARNED C.I.T.(A) HAS ALSO NOT APPRECIATED THE CONTENTION TAKEN IN THE STATEMENT OF FACTS BEFORE HIM THAT THE SO CALLED AGREEMENT FOR A DDITION WAS DUE TO SOME MISUNDERSTANDING. SINCE THE APPELLANT HAD DISPUTED TH E FACT OF AGREEMENT THE LEARNED C.I.T.(A) HAS ERRED IN MAKING THE SAID FACTOR AS A MA JOR BASIS IN DISMISSING THE APPEAL. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED C.I.T.(A) OUGHT TO HAVE CALLED FOR THE INCOME-TAX RECORD OF THE ASSESSING OFFICER TO VERIFY THE SMC-ITA NO. 2677/AHD/2011 AALAP A. MODI VS. ITO ASSESSMENT YEAR: 2008-09 PAGE 2 OF 3 FACTS STATED IN THE STATEMENT OF FACTS TO THE EFFECT THAT THE CASH ADDED WAS PART OF THE BUSINESS RECEIPTS, AND OUGHT TO HAVE DECIDED THE APP EAL ON MERITS AFTER CONSIDERING ALL RELEVANT FACTS, IN THE INTEREST OF JUSTICE. 5. IT IS THEREFORE PRAYED THAT THE ORDERS OF THE LOWER AUTHORITIES MAY BE SET ASIDE AND THE ADDITION OF RS. 10,93,000/- MAY BE DELETED. 3. ON GOING THROUGH THE RECORDS AVAILABLE BEFORE M E, I FIND THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE LD. CIT(A) AT ALL. THE ASSESSEE HAS PLACED ON RECORD AN AFFIDAVIT DATED 08.02.2016 STATING THE REASONS FOR NON-APPEARANCE B EFORE THE LD. CIT(A) DURING THE APPELLATE PROCEEDINGS. BEFORE ME, LEARNED COUNSEL FOR THE ASSESSEE UNDERTAKES TO APPEAR NOW BEFORE THE LD. CIT(A) AND PRAYS THAT THE APPEAL BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION AFRESH. 4. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, DID NOT OBJECT TO THE SUBMISSIONS MADE BY THE ASSESSEE. 5. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING P ERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE AS ALSO THE APPLICABLE LEGAL POSITION, WITH CONSENT OF BOTH THE PARTIES, WE RESTORE THIS APPEAL BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON 7 TH JULY, 2016 SD/- PRAMOD KUMAR (ACCOUNTAN T MEMBER) AHMEDABAD, THE 7 TH DAY OF JULY, 2016 BT* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD