Shri Jagdishbhai Chimanbhai Patel, Panchmahal V. The Income Tax Officer, Ward-1, Godhra

ITA 2728/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0885 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A C SHAH
• Keywords: Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2728/AHD/2013 / ASSESSMENT YEAR : 2009-2010 JAGDISHBHAI CHIMANBHAI PATEL, C/O. M/S. SHREEJI TRACTORS, OPP. GIDC MAIN GATE, LUNAWADA ROAD, TAL. GODHARA, DIST: PANCHMAHAL PAN : AAWPL 7257 L VS THE ITO, WARD-1, GODHRA / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI A.C. SHAH, AR REVENUE BY : SHRI SATISH SOLANKI, SR DR / DATE OF HEARING : 16/08/2016 / DATE OF PRONOUNCEMENT: 17/08/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VI, BARODA DAT ED 26.08.2013 FOR AY 2009-10. 2. THE BRIEF FACTS OF THE CASE, AS CULLED OUT FROM THE RECORD, ARE THAT THE ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RETURN OF I NCOME FOR THE YEAR UNDER CONSIDERATION ON 04.03.2010, DECLARING TOTAL INCOM E AT RS.2,12,170/- WHICH WAS INITIALLY PROCESSED U/S. 143(1) OF THE INCOME-T AX ACT, 1961(HEREINAFTER REFERRED TO AS 'THE ACT'). SUBSEQUENTLY, THE CASE O F THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143( 3) OF THE ACT WAS FRAMED VIDE ORDER DATED 30.11.2011. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER DETERMINED THE TOTAL INCOME AT RS .38,65,710/- AFTER MAKING VARIOUS ADDITIONS/DISALLOWANCES. 2.1 AGGRIEVED BY THE AFORESAID ORDER OF THE ASSESSI NG OFFICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) WHO , AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DISMISSED THE APPEAL O F THE ASSESSEE. SMC-ITA NO. 2728/AHD/2013 JAGDISHBHAI CHIMANBHAI PATEL VS. ITO AY : 2009-2010 2 2.2 AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE A SSESSEE IS NOW IN APPEAL BEFORE ME BY RAISING FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) HAS ERRED IN PASSING EX-PARTE ORD ER WITHOUT GIVING ADEQUATE OPPORTUNITY AND WITHOUT CONSIDERING THE SU BMISSION DATED 29.01.2013 AND 12.06.2013. 2. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDI TION OF RS.5,60,233/- AS PROFIT SHARE TRADING BUSINESS INASMUCH AS THERE IS NO PROFIT. 3. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDI TION OF RS.4,89,022/- AS INVESTMENT IN SHARES INASMUCH AS THERE IS NO INV ESTMENT. 3. BEFORE ME, ASSESSEE HAS RAISED MULTIPLE GROUNDS OF APPEAL AS STATED ABOVE. HOWEVER, AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSEE HAS RAISED A PRELIMINARY GROUND THAT THE CIT(A) HAS PAS SED AN EX-PARTE ORDER WITHOUT CONSIDERING THE SUBMISSIONS DATED 29.01.201 3 AND 12.06.2013. IT WAS THUS CONTENDED THAT THE ASSESSEE WOULD BE SATISFIED , IF THE MATTER IS REMANDED BACK TO THE FILE OF LD. ASSESSING OFFICER FOR CONSIDERING THE SAID SUBMISSIONS PLACED BEFORE THE LD. CIT(A) WITH SUPPO RTING EVIDENCES AND THEN DECIDE THESE ISSUES AFRESH. 4. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT OPP OSED THE PLEA OF THE ASSESSEE FOR REMANDING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAID ISSUES AFRESH AFTER CONSIDERI NG THE MATERIALS / SUBMISSIONS/ EVIDENCES OF THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUT HORITIES. I FIND THAT LD. CIT(A) HAS GIVEN SEVERAL OPPORTUNITY OF HEARING TO THE ASSESSEE BY ISSUING NOTICES BUT THE CASE WAS EITHER ADJOURNED ON THE RE QUEST OF ASSESSEE OR NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF H EARING BEFORE LD. CIT(A). HENCE, THE LD. CIT(A), HAVING NO OTHER OPTION, AFTE R CONSIDERING THE MATERIAL ON RECORD AND THE OBSERVATIONS OF ASSESSING OFFICER DISMISSED THE APPEAL OF ASSESSEE EX-PARTE. HOWEVER, IN MY CONSIDERED VIEW, THE ASSESSEES SMC-ITA NO. 2728/AHD/2013 JAGDISHBHAI CHIMANBHAI PATEL VS. ITO AY : 2009-2010 3 SUBMISSIONS DATED 29.01.2013 AND 12.06.2013 BEFORE LD.CIT(A) NEED TO BE VERIFIED AT ASSESSING OFFICERS LEVEL AS THE ASSESS EE CONTENDED THAT THE CALCULATION OF PROFIT DONE BY THE ASSESSING OFFICER WAS NOT CORRECT WITH REGARD TO ADDITION OF RS.5,60,233/- ON ACCOUNT OF P ROFIT FROM TRADING BUSINESS. IT IS ALSO PERTINENT TO NOTE THAT DURING APPELLATE PROCEEDINGS BEFORE LD. CIT(A) THE ASSESSEE HAS FURNISHED CERTAI N ADDITIONAL EVIDENCES CLAIMING THAT ON 29.01.2013 THERE WAS A SHARE TRADI NG LOSS OF RS.2,21,820/- WHICH WAS REDUCED TO RS.89,921/- ON 12.06.2013. TH ESE ADDITIONAL DOCUMENTS WERE REJECTED BY LD. CIT(A) UNDER RULE 46 A AS THE SAME WAS NOT PRODUCED BEFORE THE LD. ASSESSING OFFICER. SAME IS THE CASE WITH REGARD TO ADDITION OF RS.4,89,022/- ON ACCOUNT OF INVESTMENT IN SHARES, WHEREIN ALSO THE ASSESSEE HAS PLACED SOME ADDITIONAL EVIDENCES B EFORE LD. CIT(A) IN THE FORM OF LEDGER COPY OF ZAVERI SECURITY WHICH WAS AL SO REJECTED BY LD. CIT(A) AS THE SAME WAS NOT PRODUCED BEFORE THE LD. ASSESSI NG OFFICER. THEREFORE, AFTER GIVING A CAREFUL THOUGHT TO THE FACTS OF THE CASE, I AM OF THE VIEW THAT IN THE INTEREST OF NATURAL JUSTICE IT WILL BE JUST AND PROPER TO RESTORE THESE ISSUES TO THE FILE OF LD. ASSESSING OFFICER WITH A DIRECTI ON TO DECIDE THE SAME AFTER GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSES SEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE LD. ASSESSING OFFIC ER IN THE ASSESSMENT PROCEEDINGS BY PRODUCING MATERIAL EVIDENCES IN SUPP ORT OF HIS CLAIM IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17 TH AUGUST, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 17/08/2016 *BIJU T. SMC-ITA NO. 2728/AHD/2013 JAGDISHBHAI CHIMANBHAI PATEL VS. ITO AY : 2009-2010 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD