Shri Ashokbhai Karshanbhai Patel, Ahmedabad V. The Income tax Officer,Ward-6(2), Ahmedabad

ITA 2841/AHD/2011

• Counselvise Citation: 284120514 RSA 2011
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-03-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 17-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MRS URVAHI SHODHAN
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2841/AHD/2011 ASSESSMENT YEAR :2008-09 SHRI ASHOKBHAI KARSHANBHAI PATEL, U/10, NAVNIDHI COMPLEX, NR. A. ONE SCHOOL, GURUKUL ROAD, MEMNAGAR, AHMEDABAD 380052 PAN NO.AJFPP7758N V/S . INCOME TAX OFFICER, WARD-6(2), AHMEDABAD (APPELLANT) .. (RESPONDENT) /BY APPELLANT MRS. URVAHI SHODHAN, AR /BY RESPONDENT SHRI VINOD TANWANI, SR-DR /DATE OF HEARING 12-03-2012 /DATE OF PRONOUNCEMENT 12-03-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THE PRESENT APPEAL IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XI, AHMEDABAD DATED 26-08-2011 FOR THE ASSESSMENT YEAR 2008-09. 2. THE FACTS IN BRIEF ARE THAT IN THIS CASE THE RET URN OF INCOME FOR A.Y. 2008-09 WAS FILED BY THE ASSESSEE ON 31-03-2010 DECLARING T OTAL INCOME OF RS.S1,09,999/- THE SAME WAS PROCESSED U/S. 143(1) OF THE ACT. SUBS EQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND A NOTICE U/S. 143)2) OF T HE ACT WAS ISSUED IN RESPONSE THERETO THE AUTHORIZED REPRESENTATIVE OF THE ASSESS EE ATTENDED THE ASSESSMENT PROCEEDINGS. THE ASSESSMENT WAS COMPLETED VIDE ORDE R DATED 29-10-2010, WHEREBY THE AO MADE ADDITIONS TO THE INCOME OF THE ASSESSEE U/S 68 OF THE ACT. THE ASSESSEE FEELING AGGRIEVED BY THE ASSESSMENT ORDER FILED APPEAL BEFORE THE LD. ITA NO.2841/AHD/2011 A.Y. 2008-09 SH ASHOSKBHAI K PATEL V. ITO WD-6(2) ABD PAGE 2 CIT(A). THE APPEAL WAS FIXED FOR HEARING ON 08-08-2 011 ON THE DATE OF HEARING NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. THEREFOR E, THE LD. CIT(A) DISPOSED OF THE SAME ON THE BASIS OF THE MATERIALS AVAILABLE ON RECORD. LD CIT(A) AFFIRMED THE ORDER OF ASSESSING OFFICER AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. 3. THE ASSESSEE FEELING AGGRIEVED BY THE ORDER OF L D. CIT(A) PREFERRED APPEAL BEFORE THIS TRIBUNAL ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FA CTS IN DISMISSING THE APPEAL FILED BY THE APPELLANT FOR THE A.YR. 20008-0 9 WITHOUT TAKING INTO CONSIDERATION THE FACTS OF THE APPELLANTS CASE AS INCORPORATED IN THE STATEMENT OF FACTS AND THE GROUNDS OF APPEAL FILED WITH THE APPEAL MEMO IN FORM NO.35 FOR THE A.YR. 2008-09. 2. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.30,000/- IN RESPECT OF LOAN OF RS.30,000/- RECEIVED FROM SHRI DARMENDRA N YADAV BY CHEQUE, WHICH HAD BOUNCED ON 20-03-2008 AND THE SAID AMOUNT WAS T HEN DEBITED TO THE BANK ACCOUNT OF THE APPELLANT. IN THE RESULT, THERE WAS NO EFFECTIVE CASH CREDIT OF RS.30,000/-. 3. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACTS RELATING TO THIS CREDIT ENTRY OF RS.30,000/- IN THE BANK ACCOUNT, ALTHOUGH CONFIRMATION LETTER FROM THIS PARTY WAS FILED BEFOR E THE A.O WITHOUT QUOTING THE PAN NUMBER OF THIS PARTY. 4. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONF IRMING THE ADDITION OF RS.20,000/- WHICH WAS EXPLAINED TO BE A LOAN FROM S HRI DINESH KUMAR K PARMAR WHO IS ASSESSED TO INCOME-TAX BUT HIS PAN NU MBER COULD NOT BE GIVEN AT THE TIME OF ASSESSMENT. 5. THE LD. CIT(A) FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF CASH DEPOSIT OF RS.1,55,000/- (1,25,000 + 30,000), WHICH WAS EXPLAINED TO BE THE CASH AMOUNTS RECEIVED FROM THE APPELLANTS FATH ER, WHO WAS THEN OUT OF INDIA AND HENCE THE APPELLANT COULD NOT FILED CONFI RMATION FROM HIS FATHER SHRI KARSANABHAI PATEL, WHO HAD INHERITED ABOUT 50 BIGHA S OF AGRICULTURAL LANDS FROM HIS ANCESTORS AND THIS FACT WAS BROUGHT TO THE NOTICE OF THE A.O BY THE A.R. OF THE APPELLANT AT THE TIME OF THIS ASSESSMEN T. 6. FOR THE REASONS, AS MENTIONED IN THE STATEMENT O F FACTS ABOVE, THE CONFIRMATION LETTER ABOUT THE CASH LOANS FROM THE A PPELLANTS FATHER OUT OF THE SAVINGS ON HAND OUT OF THE FAMILYS AGRICULTURAL IN COME, COULD NOT BE BROUGHT ON RECORD. THE SAME MAY NOW BE ADMITTED FOR CONSIDE RATION. 7. THE LD. CIT(APPEALS) THEREFORE ERRED IN LAW AND ON FACTS IN UPHOLDING THE TOTAL ADDITIONS OF RS.2,55,000/- AND CONFIRMING THE ASSESSED TOTAL INCOME OF THE APPELLANT AT RS.3,64,990/- AS AGAINST THE RETUN ED TOTAL INCOME OF RS.1,09,990/- FOR A.YR. 2008-09, BY INADVERTENTLY/I NDIRECTLY NOT CONSIDERING THE ITA NO.2841/AHD/2011 A.Y. 2008-09 SH ASHOSKBHAI K PATEL V. ITO WD-6(2) ABD PAGE 3 REASONABLE REQUEST FOR ADJOURNMENT MADE BY THE A.R OF THE APPELLANT ON 8-8- 2011 IN THIS CASE. 4. LD. AR FOR THE ASSESSEE SUBMITTED THAT NOR APPEA RANCE BEFORE THE LD. CIT(A) WAS NEITHER INTENTIONAL NOR DELIBERATE AND THE ASSE SSEE DESERVES TO BE GIVEN OPPORTUNITY OF HEARING IN THE INTEREST OF JUSTICE. THE REASON OF NOT APPEARING BEFORE THE LD. CIT(A) IS NARATED IN THE STATEMENTS OF FACT S. THE RELEVANT CONTENTS OF THE SAME ARE REPRODUCED AS UNDER:- ON 8-8-2011, SHRI J.S.KAPOOR, CA WHO WAS AUTHORIZE D TO CONDUCT THE APPEAL BEFORE THE CIT(A), HAD IN FACT APPEARED BEFORE THE CIT(A)-XI, AHMEDABAD IN TWO OTHER MATTERS AND HAD ARGUED THOSE OTHER TWO AP PEALS ON THIS DATE BEFORE HIM. THE AR OF THE APPELLANT, HOWEVER, HAD ORALLY E XPLAINED TO THE CIT(A)-XI, AHMEDABAD ON 8-8-2011 THAT THE FILE CONTAINING THE APPEAL PAPERS OF THIS APPELLANT WAS MISPLACED SOMEWHERE IN HIS OFFICE AND THE SAME WAS NOT TRACEABLE AND THEREFORE, HE WAS NOT IN A POSITION T O CONDUCT THE APPEAL IN THE CASE OF THIS APPELLANT AND ON THIS GROUND HE HAD R EQUESTED THE CIT(A) -XI, AHMEDABAD TO ADJOURN THE HEARING IN THIS MATTER TO SOME DATE IN THE MONTH OF SEPTEMBER, 2011. THE CIT(A)-XI HAD ALSO AGREED TO T HIS ORAL \REQUEST OF THE A.R TO ADJOURN THIS MATTER TO SOME DATE IN SEPTEMBE R, 2011. AS ALSO THE DEPARTMENTAL FILE WAS NOT AVAILABLE THAT TIME BEING THE FILING CLERK WAS ON LEAVE DUE TO HE BEING IN THE HOSPITAL THE ADJOURNME NT ALSO REMAINED UNRECORDED. THE APPELLANT AND HIS A.R WERE THEREFOR E, UNDER A BONA FIDE BELIEF THAT A NOTICE FOR ANOTHER DATE OF HEARING IN SEPTEMBER, 2011 WOULD BE RECEIVED IN DUE COURSE. HOWEVER, TO THEIR SURPRISE, THE APPELLATE ORDER DATED 26-8-2011 WAS RECEIVED BY THE APPELLANT AND THEREFO RE, THE FACTS AND THE MATERIAL THAT WERE TO BE PLACED BEFORE THE HONBLE CIT(A) FOR HIS CONSIDERATION REMAINED TO BE PLACED BEFORE HIM. IT APPEARS THAT T HE ABOVE ORAL REQUEST OF THE A.R OF THE APPELLANT WAS FORGOTTEN BY THE HONB LE CIT(APPEALS), AHMEDABAD BECAUSE THE RELEVANT APPEAL FILE WAS NOT BEFORE HIM AT THAT TIME AND HENCE THE NOTING ABOUT THE ORAL REQUEST FOR ADJ OURNMENT BY THE A.R OF THE APPELLANT REMAINED TO BE MADE IN THE NOTE SHEET. IN THE RESULT, THE PRESENT APPEAL IS REQUIRED TO BE FILED BEFORE THE HONBLE I TAT AHMEDABAD AGAINST THIS EXPARTE ORDER PASSED BY THE CIT(A)-XI, AHMEDABAD. U NDER THESE CIRCUMSTANCES THE RELEVANT FACTS AND MATERIAL SUCH AS CONFIRMATIONS, PAN NUMBER ETC. COULD NOT BE PLACED BEFORE THE CIT(A) F OR HIS CONSIDERATION ON 8- 8-2011. LD. AR FURTHER SUBMITTED THAT THE ASSESSEE WANTS TO PLACE ON RECORD THE EVIDENCE SUPPORTING HIS CLAIM OF LOAN. ON THE CONTRARY, LD. DR RAISED TECHNICAL OBJECTION IN RESPECT OF TAKING GROUND OF PLACING EVIDENCE WITHOU T A FORMAL APPLICATION IN ACCORDANCE WITH RULES. 5. WE HAVE HEARD THE RESPECTIVE PARTIES, PERUSED TH E RECORD AND HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE FACTS AND CIRCUMSTA NCE OF THE PRESENT CASE AND ITA NO.2841/AHD/2011 A.Y. 2008-09 SH ASHOSKBHAI K PATEL V. ITO WD-6(2) ABD PAGE 4 SUBMISSIONS MADE AT BAR. IT WOULD SUBSERVE THE INTE REST OF JUSTICE IF THE ASSESSEE IS AFFORDED ANOTHER OPPORTUNITY TO PLACE ON RECORD THE EVIDENCES AND SUBMISSIONS HE WISHES TO MAKE IN SUPPORT OF HIS CLAIM. THEREFORE, THE IMPUGNED ORDER OF LD. CIT(A) IS SET ASIDE AND THE ASSESSEE IS DIRECTED TO APPEAR SUO MOTO BEFORE THE ASSESSING OFFICER ALONG WITH ALL EVIDENCE HE WISHES TO PLACE ON RECORD WITHIN ONE MONTH FROM THE ORDER OF THIS TRIBUNAL. THE MATTER IS REMITTED BACK TO THE FILE OF AO FOR EXPEDITIOUS DISPOSAL OF THE MATTER AFRESH IN THE LIGHT OF NEW E VIDENCE, IF ANY, PLACED ON RECORD. FURTHER, IT IS MADE CLEAR THAT WE HAVE NOT COMMENTE D UPON MERIT OF THE CASE HENCE THE A.O IS FREE TO DISPOSE THE MATTER ON MERIT OF T HE CASE. 6 IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 12/03 /2012 SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP - 12/03/2012 '() * +, +, +, +, --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. )-1 + +2 / CONCERNED CIT 4. + +2- / CIT (A) 5. .56 ---1, + -1 , '() / DR, ITAT, AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ +, , /TRUE COPY/ =/ ' > + -1 , '() *