Devabhai Dhanabhai Desai, Ahmedabad V. ITO, Ward-2(2)(1), Ahmedabad

ITA 287/AHD/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5957 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S SHUKLA
• Assessee Lawyers: S N DIVATIA
• Section: 142(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.287/AHD/2019 (ASSESSMENT YEAR: 2009-10) DEVABHAI DHANABHAI DESAI 28/326, HARIOM APARTMENT, NAVA WADAJ, AHMEDABAD- 380013 VS. ITO WARD-2(2)(1) AHMEDABAD PAN NO.AKFPD8443D ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI S. N. DIVATIA, AR RESPONDENT BY : SHRI S. S. SHUKLA , SR. D R DATE OF HEARING 20.04.2021 DATE OF PRONOUNCEMENT 27.04.2021 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 26.12.2018 PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS) 10, AHMEDABAD ARISING OUT OF THE ORDER DATED 05.12. 2016 PASSED BY THE ITO, WARD-2(2)(1), AHMEDABAD UNDER SECTION 147 R.W. S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT ) FOR ASSESSMENT YEAR 2009-10. 2. THE MATTER RELATES TO ADDITION OF RS. 8,04,000/- ON ACCOUNT OF UNDISCLOSED INCOME ON THE BASIS OF THE FINDING THAT THE ASSESSEE MADE F.DS. IN ACCOUNT NUMBER 2009 TOTALING TO RS. 8,04,000/- MAINTAINED WITH THE ITA NO.287/AHD/2019 DEVABHAI DHANABHAI DESAI VS. ITO ASST.YEAR 2009-10 - 2 - BAPUNAGAR MAHILA CO. OP. BANK LTD. WHICH WAS FAILED TO BE EXPLAINED BY THE ASSESSEE. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RELEVA NT MATERIALS AVAILABLE ON RECORD. IT APPEARS THAT THE LD. AO MADE ADDITION IN THE AB SENCE OF ANY SUBMISSION MADE BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION 142(1) DATED 13.07.2016 AND A FURTHER SHOW CAUSE NO TICE DATED 21.11.2016. 4. THE LD. CIT(A) DISMISSED THE APPEAL ON THE GROUN D OF LIMITATION SINCE THERE WERE 137 DAYS DELAY IN FILING THE SAID APPEAL BEFORE HIM. THE FOLLOWING SUBMISSION WAS MADE BY THE ASSESSEE BEFOR E THE LD. CIT(A) IS AS FOLLOWS:- THE APPELLANT IS AN NOT LITERATE PERSON HE IS NOT AWARE OF THE ITR ASSESSMENTS AND PROCEEDING ALSO UNAWARE ABOUT THE RECEIPT OF ASSESS MENT ORDER, SO HE ENACTED AS SOON AS HE GOT KNOWN AND FOUND THE ASSESSMENT ORDER . HOWEVER, THE ABOVE SUBMISSION WAS NOT ACCEPTED AND THE APPEAL WAS DISMISSED. IT FURTHER APPEARS FROM THE RECORDS PAR TICULARLY THE AFFIDAVIT FILED BY THE ASSESSEE AND HIS FATHER AS APPEARING AT PAGE S 1 TO 8 OF PAPER BOOK THAT THE ASSESSEE IS WORKING AS A DRIVER IN A PRIVA TE LIMITED COMPANY AND HAVE ONLY PASSED 8 TH STANDARD. 5. IT IS A FACT THAT THE APPEAL WAS FINALLY DISMISS ED BY THE LD. CIT(A) ON THE GROUND OF LIMITATION BUT IT IS ALSO EVIDENT ON RECORD THAT THE MERIT OF THE MATTER WAS NOT EXPLAINED BY THE ASSESSEE BEFORE THE LD. AO. HENCE, TAKING INTO CONSIDERATION THE ENTIRE ASPECT OF THE MATTER, PARTICULARLY THE STATUS AND EDUCATIONAL QUALIFICATION OF THE ASSESSEE, THE AFFI DAVIT FILED BY THE ASSESSEE ITA NO.287/AHD/2019 DEVABHAI DHANABHAI DESAI VS. ITO ASST.YEAR 2009-10 - 3 - IN SUPPORT OF HIS CASE, WE ARE OF THE CONSIDERED OP INION THAT AN OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE TO PLACE HI S MATTER IN APPROPRIATE MANNER BEFORE THE LD. AO FOR THE ENDS OF JUSTICE. HENCE, WE ALLOW THE APPEAL BY SETTING ASIDE THE ISSUE TO THE FILE OF TH E LD. AO TO CONSIDER THE SAME AFRESH UPON GIVING AN OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE AND UPON TAKING INTO CONSIDERATION THE EVIDENCE ON RECO RD OR FURTHER DOCUMENTS WHICH THE ASSESSEE MAY CHOOSE TO FILE BEFORE THE LD . AO FOR PROPER ADJUDICATION OF THE MATTER. HOWEVER, WE MAKE IT CL EAR THAT THE ASSESSEE WOULD ALSO COOPERATE WITH THE REVENUE OFFICER DURIN G HEARING WITHOUT PRAYING FOR ANY UNNECESSARY ADJOURNMENT. THE APPEA L IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 27 / 0 4 /20 2 1 SD/- SD/- (PRADIP KUMAR KEDIA) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/04/2021 TANMAY, SR. PS TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)- 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD