Seemaben Bhupendrabhai Chatwani, Ahmedabad V. The Income tax Officer,Ward-11(2), Ahmedabad

ITA 29/AHD/2011

• Counselvise Citation: 2920514 RSA 2011
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 06-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MATHIVANAN SRDR
• Assessee Lawyers: S N DIVATIA
• Keywords: Opportunity of being heard; Principle of natural justice; Deemed to accrue or arise in india
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH BEFORE SHRI G.C.GUPTA, VICE-PRESIDENT (AZ) AND SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.29/AHD/2011 ASSESSMENT YEAR:2007-08 SEEMABEN BHUPENDRABHAI CHATWANI 5, ATMADARSHAN SOCIETY, B/H. H.K. COMPLEX, BHATTHA, PALDI, AHMEDABAD PAN NO.ADAPC4935F / V/S . INCOME TAX OFFICER WARD-11(2), AH / APPELLANT .. / RESPONDENT APPELLANT BY SHRI S.N.DIVATIA, AR RESPONDENT BY SHRI M.MATHIVANAN, SR-DR / DATE OF HEARING 16-12-2001 / DATE OF PRONOUNCEMENT 16-12-2001 ! ! ! ! / / / / ORDER PER B.P. JAIN, ACCOUNTANT MEMBER:- THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F LD. COMMISSIONER OF INC-TAX (APPEALS)-XVI, AHMEDABAD DATED 11-10-201 0 FOR THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL. 1.1 THE ORDER PASSED U/S.250 ON 11.10.2010 FOR A.Y . 2007-08 BY CIT(A)-XVI, CONFIRMING THE ORDER U/S.143(3) DATED 2 9.12.2009 PASSED BY ITO, WARD11(2), ABAD IS WHOLLY ILLEGAL, UNLAWFU L AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ORDER ON FACTS IN PASSING THE IMPUGNED ORDER EX-PARTE WITHOUT ALLOWIN G SUFFICIENT OPPORTUNITY TO THE APPELLANT. THE LD. CIT(A) HAS FA ILED TO APPRECIATE THAT ITA NO.29/AHD/2011 A.Y. 2007-08 SEEMABEN B CHATWANI V. ITO WD-11(2) ABD PAGE 2 THERE WAS A SUFFICIENT CAUSE FOR FAILURE TO ATTEND OR SEEK ADJOURNMENT ON THE DATE OF HEARING. 2.1 THE LD. CIT(A) HAS ERRED IN UP HOLDING THAT AO WAS JUSTIFIED IN PASSING EX PARTY ORDER. 2.2 THAT THE LD CIT(A) OUGHT NOT TO HAVE PASSED EX PARTE ORDER NOR CONFIRMED THE EX PARTY ORDER PASSED BY AO IN VIEW O F THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FOR THE SAME. 3.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITIONS OF RS.550133/- AS UNEXPLAI NED INVESTMENT. 3.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE INVESTMENT OF RS.55013 3/- WAS FULLY EXPLAINED. 3.3 THAT IN THE FACTS AND CIRCUMSTANCES FOR THE CAS E AS WELL AS IN LAW, THE LD. CIT(A) OUGHT NOT TO HAVE UPHELD THE INVESTM ENT OF RS.550133/- AS UNEXPLAINED. 2. THE BRIEF FACTS IN THE GROUNDS OF APPEAL OF THE ASSESSEE ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 03-01-2008 A ND HER CASE WAS SELECTED FOR SCRUTINY. THE NOTICES U/S.143(2) AND 142(1) OF THE INCOME-TAX ACT, 1961 WERE SENT AS PER DETAILS AVAILABLE IN THE ASSESSMEN T ORDER. NONE ATTENDED IN RESPONSE TO THE SAID NOTICES AND THE ASSESSING OFFI CER PROCEEDED TO MAKE THE ASSESSMENT U/S.144 OF THE ACT. THE ASSESSEE HAD FIL ED THE COMPUTATION OF INCOME ALONG WITH THE BALANCE-SHEET WITH THE RETURN OF INCOME. ON THE PERUSAL OF THE BALANCE-SHEET, THE AO OBSERVED THE TOTAL OF THE INVESTMENT MADE WITH FIVE PARTIES AT RS.5 ,50,133/-. FOR WANT OF EXPLANA TION ABOUT THE NATURE AND SOURCE OF THE INVESTMENT, THE AO TREATED THE SAME A S DEEMED INCOME U/S.69 OF THE ACT AND ACCORDINGLY ADDED TO THE INCOME OF T HE ASSESSEE. THE LD. CIT(A) ALSO ISSUED NOTICES TO THE ASSESSEE WHICH WA S SERVED ON THE ASSESSEE BUT NONE ATTENDED. THE LD. CIT(A) ALSO MADE THE EX PARTE ORDER CONFIRMING THE DECISION OF THE AO. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ASSESSING OFFICER IN THE PRESENT CASE HAS TREAT ED THE AMOUNT OF TOTAL ITA NO.29/AHD/2011 A.Y. 2007-08 SEEMABEN B CHATWANI V. ITO WD-11(2) ABD PAGE 3 INVESTMENT MADE BY THE ASSESSEE AS DEEMED INCOME OF THE ASSESSEE FOR WANT OF ANY EXPLANATION BY THE ASSESSEE. NO REPRESE NTATION WAS MADE BEFORE ANY OF THE AUTHORITIES BELOW. IN ANY CASE, THE ADDI TIONS HAVE BEEN MADE BY THE AO WITHOUT EXAMINING THE FACTS WHETHER THESE IN VESTMENTS WERE MADE DURING THE YEAR OR IN THE PRECEDING YEARS AND WHAT ARE THE SOURCES OF THE SAME. IT WILL BE IN THE INTEREST OF NATURAL JUSTICE IF THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER, WHO WILL EXAMINE THE ISSUE DE NOVO BUT BY AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. THUS, GROUNDS NO.1.1 TO 3.3 OF THE ASSESSEE ARE ALLOWED FOR STATI STICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ' ! #$% 16 / 12 /2011 ) * + , THIS ORDER PRONOUNCED IN OPEN COURT ON 16/12/ 2011 . SD/- SD/- ( G.C.GUPTA ) ( B.P. JAIN ) (VICE PRESIDENT) (ACCOUNTANT MEMBER) #$%- 16/12/2011 . , DKP* ! ! ! ! //0 //0 //0 //0 1 0 1 0 1 0 1 0 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $$/4 5 / CONCERNED CIT 4. 5- / CIT (A) 5. 08+ ///4, /4, . / DR, ITAT, AHMEDABAD 6. +;< =' / GUARD FILE. BY ORDER/ ! , /TRUE COPY/ >/. $? /4, . ,