Shri Pramod Kumar Agarwal, Surat V. The Income Tax Officer, Ward-2(3), Surat

ITA 2985/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1886 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 23-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Assessee Lawyers: S K KABRA
• Keywords: Unexplained cash credit; Assessment record
• Section: 143(3); 68; 6

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA.NO.1559/AHD/2014 AND ./ ITA.NO.2985/AHD/2015 / ASSTT. YEAR: 2008-09 SHRI PRAMOD AGARWAL 102, JEEN KRUPA COMPLEX NR.SIDDHARTH SCHOOL PARVAT PATIA, MODEL TOWNSHIP SURAT. VS ITO, WARD - 1(1) SURAT. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI S.K. KABRA REVENUE BY : SHRI G.C.DAXINI, SR.DR / DATE OF HEARING : 06/04/2016 / DATE OF PRONOUNCEMENT: 07/04/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANC E OF THE ASSESSEE AGAINST THE ORDERS OF THE LD.CIT(A)-II DATED 19.1.2 013 AND 10.8.2015 PASSED IN THE ASSTT.YEAR 2008-09. 2. ITA NO.1559/AHD/2014 EMERGES OUT OF THE ASSESSME NT PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, WHEREAS ITA NO.2985/AHD/2015 EMERGES FROM THE PENALTY PROCEEDIN GS INITIATED ITA NO.1559/AHD/2012 AND 1 OTHER 2 AGAINST THE ASSESSEE UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. FIRST WE TAKE UP THE QUANTUM APPEAL. 3. THE GRIEVANCE OF THE ASSESSEE IS THAT LD.CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE FOR WANT OF P ROSECUTION. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED H IS RETURN OF INCOME ON 31.3.2009 DECLARING TOTAL INCOME AT RS.1,09,700/-. THE AO HAS PASSED THE ASSESSMENT ORDER ON 28.12.2010 AND DETERMINED T HE TAXABLE INCOME OF THE ASSESSEE AT RS.8,11,990/-. THE AO HAS MADE AN ADDITION OF RS.6,83,673/- WITH THE AID OF SECTION 68 ON ACCOUNT OF UNEXPLAINED CREDITS. HE FURTHER MADE GP ADDITION OF RS.10,000/ - AND DISALLOWED A SUM OF RS.8,611/- OUT OF VARIOUS EXPENDITURE CLAIME D BY THE ASSESSEE. 4. DISSATISFIED WITH THE ORDER OF THE AO, THE ASSES SEE WENT IN APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT IN RESPONSE TO THE NOTI CE OF HEARING, THE ASSESSEE DID NOT APPEAR BEFORE HIM. 5. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. SUB-SECTION (6) OF S ECTION 250 OF THE INCOME TAX ACT CONTEMPLATES THAT THE LD.CIT(A) WOUL D STATE THE POINT OF DISPUTE IN THE APPEAL, AND THEREAFTER, RECORD REASO NS IN SUPPORT OF HIS CONCLUSION ON THOSE POINTS. IN THE PRESENT CASE, T HE LD.CIT(A) FAILED TO ADHERE TO PROCEDURE CONTEMPLATED IN SUB-SECTION 6 O F SECTION 250. THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED FOR WANT OF PROSECUTION. THE LD.FIRST APPELLATE AUTHORITY OUGHT TO HAVE CALLED F OR ASSESSMENT RECORD AND OUGHT TO HAVE DECIDED THE APPEAL ON MERIT. THE REFORE, THE ORDER OF THE CIT(A) IN THE PRESENT FORM IS NOT SUSTAINABLE. WE SET ASIDE THE ORDER ITA NO.1559/AHD/2012 AND 1 OTHER 3 OF THE LD.CIT(A) AND RESTORE ALL THESE ISSUES TO TH E FILE OF THE LD.CIT(A) FOR RE-ADJUDICATION. 6. NOW WE TAKE PENALTY APPEAL. WHETHER THE ASSESS EE IS TO BE VISITED WITH PENALTY OR NOT QUA ADDITIONS MADE IN HIS TOTAL INCOME IS THE QUESTION WHICH IS DEPENDED UPON THE MERIT OF QUANTU M ADDITIONS. NO DOUBT IN THE PENALTY APPEAL, THE LD.CIT(A) HAS CALL ED FOR REMAND REPORT AND MADE A DETAILED DISCUSSION ABOUT THE ADDITIONS, AND THEREAFTER CONSIDERED AS TO WHY PENALTY IS TO BE IMPOSED UPON THE ASSESSEE. BUT SINCE WE HAVE SET ASIDE THE QUANTUM PROCEEDINGS TO THE LD.CIT(A) FOR RE- ADJUDICATION, IT WILL BE PREMATURE TO DECIDE THE PE NALTY APPEAL ON MERIT. THE PENALTY CAN ONLY BE IMPOSED UPON THE ASSESSEE A FTER CONCLUSION OF QUANTUM ADDITION. THEREFORE, WE SET ASIDE THE ORDE R OF THE CIT(A) IN THIS APPEAL AND RESTORE THE ISSUES TO THE FILE OF T HE LD.CIT(A). THE LD.CIT(A) SHALL TAKE UP THE APPEAL REGARDING LEVY O F PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT AFTER TAKIN G DECISION ON THE QUANTUM ADDITIONS. 7. THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR I NJURE THE CASE OF THE AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFE NCE/EXPLANATION OF THE ASSESSEE. ORDER PRONOUNCED IN THE COURT ON 7 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 07/04/2016