Shri Gaurav Girdharilal Kherajani, Surat V. The Dy.CIT.,Circle-5, Surat

ITA 3086/AHD/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9652 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Reasonable cause
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.) I.T. A. NO. 3086/AHD/2011 (ASSES SMENT YEAR: 2008-09) SHRI GAURAV GIRHDARILAL KHERAJANI, PROP. OF TARANA FASHION, 520, MAHALAXMI MARKET, RING ROAD, SURAT. V/S THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-5, SURAT. (APPELLANT) (RESPONDENT) PAN: AIIPK0115G APPELLANT BY : SHRI M.K. PATEL, A.R. RESPONDENT BY : SHRI ROOP CHAND, SR. D.R. ( )/ ORDER DATE OF HEARING : 09-04-2015 DATE OF PRONOUNCEMENT : 17 -04-2015 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-I, SURAT DATED 28.09.2011 FOR A.Y. 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED IN T HE BUSINESS OF TRADING OF ART SILK CLOTH IN THE NAME AND STYLE OF TARANA FASH ION. ASSESSEE ELECTRONICALLY FILED HIS RETURN OF INCOME FOR A.Y. 2008-09 ON 30.09.2008 ITA NO 3086 /AHD/2011 . A.Y. 2008-0 9 2 DECLARING TOTAL INCOME OF RS. 4,53,208/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECT ION 143(3) VIDE ORDER DATED 06.09.2010 AND THE TOTAL INCOME WAS DETERMINE D AT RS. 7,95,580/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED TH E MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 28.09.2011 GRANTED PART IAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. C IT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GR OUNDS;- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.2 ,86,600/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S.69B OF THE ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RESTRICTING 10% DISALLO WANCE OF TOTAL GENERAL EXPENSES AND STAFF WELFARE EXPENSES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.2 4,133/- ON ACCOUNT OF 20% DISALLOWANCE OF TOTAL VEHICLE EXPENSES. 4. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITION MAY PLEASE BE DELETED AS LEARNED MEMBERS OF THE TRIBUNAL MAY DEEM IT PROPER. 5. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF THE HEARING OF THE APPEAL. 4. BEFORE US, AT THE OUTSET LD. A.R. SUBMITTED THAT LD . CIT(A) HAS PASSED AN EX PARTE ORDER AND IN THE ABSENCE OF ANY REPRESENTATIO N HAS UPHELD THE ORDER OF A.O. HE THEREFORE SUBMITTED THAT ONE MORE OPPORTUNI TY BE GRANTED TO THE ASSESSEE TO PRESENT ITS CASE BEFORE LD. CIT(A) AND ALSO SUBMITTED AND GAVE AN UNDERTAKING THAT ASSESSEE WILL SUO MOTU APPEAR B EFORE LD. CIT(A). LD. ITA NO 3086 /AHD/2011 . A.Y. 2008-0 9 3 D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O A ND FURTHER SUBMITTED THAT ASSESSEE HAS NOT BROUGHT ON RECORD ANY JUSTIFICATIO N FOR NON APPEARANCE BEFORE LD. CIT(A) AND THE TENDENCY OF THE ASSESSEE OF NOT APPEARING BEFORE LD. CIT(A) AND SUBSEQUENTLY PLEADING BEFORE HONBLE ITAT FOR A SECOND INNING TO PRESENT ITS CASE BEFORE LD. CIT(A) SHOULD NOT BE CONSIDERED FAVORABLY. HE THUS SUPPORTED THE ORDER OF A.O AND L D. CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT BEFORE LD. CIT(A) NEITHER ASSESSEE APPEAR ED NOR WAS THE ASSESSEE REPRESENTED BE ANY AUTHORIZED REPRESENTATIVE AND TH US AN EX PARTE ORDER WAS PASSED BY LD. CIT(A). WE ALSO FIND THAT LD. CIT(A) HAS IN THE ABSENCE OF ANY REPRESENTATION FROM THE SIDE OF ASSESSEE BY A CRYPT IC ORDER MAINLY UPHELD THE ADDITIONS MADE BY A.O DURING THE COURSE OF HEA RING A SPECIFIC QUERY WAS RAISED BY THE BENCH TO THE A.R TO EXPLAIN THE R EASONS AS TO WHY THERE WAS NO REPRESENTATION BEFORE LD. CIT(A) TO WHICH LD . A.R. COULD NOT GIVE ANY SATISFACTORILY EXPLANATION OR JUSTIFICATION. CONSI DERING THE AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE BE GRANTED ONE MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE LD. CIT (A) BUT AT THE SAME TIME APATHY OF THE ASSESSEE TOWARDS THE PROCEEDINGS BEFO RE LOWER AUTHORITIES WITHOUT ANY REASONABLE CAUSE ALSO CANNOT BE ENCOURA GED. SO IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CIT(A) TO HIS FILE WITH DIRECTION TO DECIDE THE ISSUES IN ACCORDANCE WITH LAW AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND SUBJECT TO THE ASSESSEE MAKING A PAYMENT OF COST OF RS. 10,000/- IN THE LEGAL AID. F URTHER WE ALSO DIRECT THE ASSESSEE TO SUO MOTU APPEAR BEFORE LD. CIT(A) WITHI N 1 MONTH FROM THE DATE OF THE ORDER OF THE TRIBUNAL FOR RECEIVING THE DATE OF HEARING. IN VIEW OF OUR DECISION TO RESTORE TO THE ISSUES TO THE FILE OF LD . CIT(A), WE ARE NOT ITA NO 3086 /AHD/2011 . A.Y. 2008-0 9 4 ADJUDICATING ON MERITS THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE. IN THE RESULT, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 17 - 04 - 2015. SD/- SD/- SHAILENDRA KR. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD