Sharif Developers, Bhuj V. Income Tax Officer, Ward-2, Bhuj

ITA 288/RJT/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7796 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 11-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AH MEDABAD] (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ITA. NO: 288/RJT/2017 (ASSESSMENT YEAR: 2011-12) SHRI SHARIF DEVELOPERS 1 ST FLOOR, KATIRA COMMERCIAL COMPLEX, RTO RELOCATION SITE, BHUJ V/S INCOME TAX OFFICER, WARD- 2, BHUJ (APPELLANT) (RESPONDENT) PAN: ABUFS0129B APPELLANT BY : NONE RESPONDENT BY : SHRI PRAVEEN VERMA, SR. D.R. ( )/ ORDER DATE OF HEARING : 07 -06-201 8 DATE OF PRONOUNCEMENT : 12 -06-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-3, RAJKOT DATED 29.06.2017 PERTAINING TO A.Y. 2011-12 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 288/ RJT/2017 . A.Y.2011-12 2 THE ID, CIT(A) ERRED IN LAW AS WELL AS ON FACTS IN- 1. NOT ADMITTING THE APPEAL WITHOUT GIVING ANY OPPORTU NITY TO THE APPELLANT, PARTICULARLY WHEN THE SHOW-CAUSE LETTER WAS SERVED ON THE APPELLANT ON 13/07/2017(COPY ATTACHED), I.E. 14 DAYS AFTER PASSI NG THE APPELLANT ORDER DATED 29/06/2017. THUS THE LETTER AFFORDING OPPORTU NITY TO THE APPELLANT WAS SERVED AFTER PASSING THE ORDER AND HENCE THE ORDER IS PASSED WITHOUT GRANTING AN OPPORTUNITY TO THE APPELLANT, WHICH IS BAD-IN-LAW A S WELL AS CONTRARY TO THE PRINCIPLES OF NATURE OF JUSTICES. THE APPELLANT, TH EREFORE, PRAYS TO SET ASIDE TO APPEAL TO THE FILE OF ID. CIT(A) WITH DIRECTION TO ALLOW REASONABLE OPPORTUNITY TO THE APPELLANT WITH IMPUGNED ISSUE. 2. NOT ADMITTING THE APPEAL ON THE GROUND THAT APPELLA NT HAD NOT PAID SELF ASSESSMENT TAX. PARTICULARLY WHEN THE APPELLANT HAD FILED RETURN OF INCOME DECLARING THAT ALL TOTAL INCOME IS NIL AND CONSEQUE NTLY NOT REQUIRED TO PAY ANY- SELF ASSESSMENT/ ADVANCE TAX. 2. FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF LAND DEVELOPERS. AND A SURVEY ACTION U/S. 133A OF THE A CT HAS BEEN CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE FIRM ON 31.01 .2012 AND ON THE BASIS OF IMPOUNDING MATERIALS THE ASSESSEE FIRM HAD VOLUNTAR ILY DISCLOSED AN AMOUNT OF RS. 6,00,27,835/- AS THEIR UNDISCLOSED INCOME FOR T HE ASSESSMENT YEAR 2011-12 AND 2012-13. AND THE BIFURCATION OF UNDISCLOSED INC OME IS AS UNDER: NAME OF THE PARTNER DISCLOSURE MADE (RS.) RELEVANT A.Y. SHRI FAKIRMOHAMAD MOGAL 1.89,00,000 2012 - 13 SHRI MEHBOOB AMAD LODHIA 50,00,000 2012 - 13 SHRI MOHAMAD HANIF F. MOGAL 1,00,00,000 2012 - 13 ITA NO. 288/ RJT/2017 . A.Y.2011-12 3 SHRI JAVED F. MOGAL 1,89,00,000 2012 - 13 M/S. SHARIF DEVELOPERS. 72,27.835 2011 - 12 3. IN VIEW OF THE ABOVE, THE DISCLOSURE HAS BEEN MADE AS MENTIONED ABOVE BY THE FOUR PARTNERS ON THE BASIS OF THE FOUR DIARIES WHIC H WERE FOUND AND IMPOUNDED DURING THE COURSE OF SURVEY. 4. IN THE CASE OF THE ASSESSEE FIRM M/S. SHARIFF DEVEL OPERS DISCLOSURE WAS MADE ON THE BASIS OF THE AUDIT REPORT FOUND FOR A.Y, 201 1-12 IN WHICH AN AMOUNT OF RS.72,27,835/-WAS FOUND IN ADMISSIBLE DUE TO NO DED UCTION OF IDS. AT THE TIME OF SURVEY ACTION, THE RETURN OF INCOME OF THE ASSESSEE FIRM M/S. SHARIFF DEVELOPERS FOR A.Y. 2011-12 WAS NOT FILED. ONLY THE COMPUTATION OF INCOME OF THE FIRM M/S. SHARIFF DEVELOPERS FOR A.Y. 2011-12 A LONG WITH AUDIT REPORT WAS FOUND FROM THE BUSINESS PREMISES. ON VERIFICATION A UDIT REPORT ENCLOSED WITH THE COMPUTATION OF INCOME .FOR A.Y. 2011-12, AN AMO UNT OF RS. 72,27,835/- WAS NOT ALLOWED AND HENCE DISCLOSED AT THE TIME OF SURVEY. 5. THE ASSESSEE FIRM HAS FILED RETURN OF INCOME FOR A. Y, 2011-12 ELECTRONICALLY ON 30.03.2012 DECLARING TOTAL INCOME OF RS. NIL. SINCE THE ASSESSEE FIRM HAD NOT REVISED THE RETURN, AN AMOUNT OF RS. 72,27,835/- RE MAINS IN ADMISSIBLE. SINCE THE BOOKS OF ACCOUNT OF THE ASSESSEE HAS BEEN DULY AUDITED AND THE AUDITOR HAS MENTIONED IN COL NO. 17(F) OF PART B OF FORM NO. 3C D THAT AN AMOUNT OF RS. 72,27,835/- IS IN ADMISSIBLE UNDER SECTION 40(A) OF THE ACT, AND THE ASSESSEE HAS ALSO VOLUNTARILY ACCEPT THE THINGS. ACCORDINGLY, TH E SUM OF RS.72,27,835/- IS HERBY DISALLOWED AND ADDED TO THE TOTAL INCOME OF T HE ASSESSEE FIRM. ITA NO. 288/ RJT/2017 . A.Y.2011-12 4 6. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, TH E ASSESSEE HAS BEEN ASKED TO PRODUCE THE LEDGER ACCOUNTS OF VARIOUS INDIRECT EXPENSES OF RS. 28,69,738/- DEBITED TO PROFIT AND LOSS ACCOUNT. THE ASSESSEE HA S FAILED TO PRODUCE THE REQUIRED DETAILS. THEREFORE LD. A.O. ALSO ADDED RS . 7,17,435/- TO THE INCOME OF THE ASSESSEE AND FINALLY TOTAL INCOME WAS ASSESSED RS. 79,45,270/-. 7. AGAINST THE SAID ADDITION, ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) BUT APPELLANT DID NOT APPEAR BEFORE THE LD. CIT(A) AND LD. CIT(A) PASSED EX PARTE ORDER. 8. WE SET ASIDE THE ORDER OF THE LD. CIT(A) AS SAME HA S BEEN PASSED EX PARTE ORDER AND ASSESSEE/APPELLANT COULD NOT PURSUE HIS APPEAL BECAUSE OF SOME REASONS. THEREFORE, IN THE INTEREST OF THE JUSTICE, WE SET A SIDE THE ORDER OF THE LD. CIT(A) AND REMAND THIS MATTER BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THIS MATTER AFRESH AFTER GIVING AN OPPORTUNITY OF BEING HEARD T O THE ASSESSEE AND THEREAFTER WILL DECIDE THE MATTER AS PER LAW AND APPELLANT IS ALSO DIRECTED TO BE PRESENT AS AND WHEN ASKED BY THE LD. CIT(A) FOR DISPOSAL OF TH IS APPEAL. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 12 - 06- 2018 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 12 /06/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT.