Shri Piyush D. Modi, Ankleshwar V. The Income Tax Officer, Ward-3, Bharuch

ITA 2793/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0392 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 28-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2793/AHD/2013 / ASSESSMENT YEAR : 2009-10 SHRI PIYUSH D. MODI, 13, SUPER ARCADE COMPLEX, VALIA CHOKDI, ANKLESHWAR PAN: ADFPM 4071 R VS INCOME TAX OFFICER, WARD-3, BHARUCH / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI MUKUND BAKSHI, AR REVENUE BY : SHRI RAHUL KUMAR, SR DR / DATE OF HEARING : 30/09/2016 / DATE OF PRONOUNCEMENT: 30/09/2016 / O R D E R THIS IS ASSESSEES APPEAL CHALLENGING THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN :- I) NOT ADMITTING THE ADDITIONAL EVIDENCE UNDER RULE 46 A. II) ADDING THE ENTIRE AMOUNT IN BANK ACCOUNT, WHICH PER TAINED TO JAGGERY TRADING, AS INCOME OF THE ASSESSEE. 2. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE A SSESSEE APPOINTED AN INCOME-TAX ADVOCATE MR. KUMUDBHAI J. MODI, WHO DID NOT APPEARED BEFORE THE LD. AO. THEREAFTER, MRS. DIPTIBEN PATEL, ADVOCA TE WAS APPOINTED, WHO APPEARED ON 08.11.2011 AND SHE WAS ASKED FOR CERTAI N INFORMATION BY THE LD. AO. MRS. DIPTIBEN PATEL ON HER OWN INFORMED THE AO THAT ALL THE AMOUNTS CREDITED IN THE BANK ACCOUNT BELONGS TO ASSESSEES BROTHER. THIS LED TO IMPUGNED ADDITION WHICH WAS CHALLENGED BEFORE THE L D.CIT(A) ALONG WITH ADDITIONAL EVIDENCE. AN AFFIDAVIT IN THIS REGARD W AS ALSO FILED. 3. LD. CIT(A), THOUGH CALLED FOR REMAND REPORT, HOW EVER, DID NOT ADMIT THE ADDITIONAL EVIDENCE UNDER RULE 46A. THE CONTEN TS OF THE AFFIDAVIT WERE SMC-ITA NO. 2793/AHD/2013 SHRI PIYUSH D. MODI VS. ITO AY : 2009-10 2 NOT CONTROVERTED. THE REFUSAL OF THE LD. CIT(A) TO ADMIT THE ADDITIONAL EVIDENCE IS WITHOUT PROPER BASIS AND UNJUSTIFIED. S INCE THE ADDITION IN QUESTION HAS BEEN MADE WITHOUT THERE BEING A FAULT ON THE PART OF ASSESSEE, IN THE INTEREST OF JUSTICE, IT IS PRAYED THAT THE I SSUE MAY BE SET ASIDE AND RESTORED BACK TO THE FILE OF THE AO TO ADJUDICATE T HE SAME AFRESH AFTER PROVIDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEIN G HEARD. 4. LD. DR, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. I HAVE GONE THROUGH THE AFFIDAVIT FILE D BY THE ASSESSEE BEFORE LD. CIT(A) FOR ADMISSION OF ADDITIONAL EVIDENCE. THE D EPOSITION IN AFFIDAVIT CLEARLY MENTIONED THAT THE SAID ADVOCATES MR. KUMUD BHAI J. MODI AND MRS. DIPTIBEN PATEL DID NOT REPRESENT THE ASSESSEES CAS E PROPERLY. LD. CIT(A), THOUGH CALLED FOR A REMAND REPORT, HOWEVER, AT THE END REFUSED TO ADMIT THE ADDITIONAL EVIDENCE. THEREFORE, IN MY CONSIDERED V IEW, INTEREST OF JUSTICE WILL BE SERVED IF THE ISSUES IN QUESTION ARE SET AS IDE AND RESTORED BACK TO THE FILE OF AO TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 30 TH SEPTEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 30/09/2016 *BIJU T. SMC-ITA NO. 2793/AHD/2013 SHRI PIYUSH D. MODI VS. ITO AY : 2009-10 3 / 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