Shaikh Rahimuddin Shaikh Ghausuddin, Aurangabad V. Income-tax Officer,

ITA 313/PUN/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0872 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAZHAR AKROM
• Keywords: Opportunity of being heard
• Section: 143(3); 69; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . . , , , BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM ITA NO. 313 /PN/201 5 (ASSESSMENT YEAR : 200 9 - 1 0) SHAIKH RAHIMUDDIN SHAIKH GHAUSUDDIN PROP. DREAMLAND CONSTRUCTION, FLAT NO.1, FIRST FLOOR, RAZZAQUI COMPLEX, MANZOORPURA, AURANGABAD. APPELLANT PAN: AWUPS7090N VS. THE INCOME TAX OFFICER, WARD 2(3), AURANGABAD. RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI MAZHAR AKROM / DATE OF HEARING : 1 2 - 11 - 2015 / DATE OF PRONOUNCEMENT : 13 - 1 1 - 2015 / ORDER PER R.K. PANDA, A.M : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 2 8 . 0 1.201 5 OF THE CIT(A) - 2 , AURANGABAD RELATING TO A.Y. 200 9 - 1 0. 2 . ALTHOUGH, VARIOUS GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE, THEY ALL RELATE TO THE ORDER OF LD. CIT(A) IN CONFIRMING THE ADDITION OF 2 ITA NO. 21 0/PN/2014 CO NO.02/PN/2015 SHRI BIPIN VIDYADHAR CHOBHE RS.1,48,21,849/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK U/S. 69 OF THE INCOME - TAX ACT. 3. FACTS OF THE CASE , IN BRIEF , ARE THAT T HE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 18.09.2009 DISCLOSING TOTAL INCOME OF RS. 3,90,970/ - . THE ASSESSING OFFICER PASSED THE ORDER U/S. 143(3) OF THE ACT ON 31.12.2010 BY ACCEPTING THE RETURN ED INCOME. SUBSEQUENTLY, THE LD. CIT , ON EXAMINATION OF RECORDS, NOTED THAT THE ORDER PASSED BY THE ASSESSING OF FICER U/S. 143(3) OF THE ACT DATED 31.12.2010 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, SINCE THE ASSESSING OFFICER HAD NOT CONSIDERED THE VARIOUS CASH DEPOSITS MADE BY THE ASSESSEE IN THE SAVING BANK ACCOUNTS MAINTAINED WITH VARIOUS BANKS. HE , THEREFORE, ISSUED SHOW CAUSE MAINTAINED WITH VARIOUS BANKS. HE , THEREFORE, ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE ASKING HIM TO EXPLAIN WHY ACTION U/S. 263 OF THE ACT SHOULD NOT BE TAKEN. SINCE THERE WAS NO RESPONSE FROM THE ASSESSEE, THE LD. CIT AFTER CONSIDE RING THE MATERIAL AVAILABLE BEFORE HIM SET - ASIDE THE ORDER TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO RE - FRAME THE ASSESSMENT AS PER LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SUBSEQUENTLY, THE ASSESSING OFFICER ISSUED NOTI CE TO THE ASSESSEE. HOWEVER, THERE WAS NO RESPONSE FROM THE SIDE OF ASSESSEE, FOR WHICH THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON A TOTAL INCOME OF RS. 1,52,12,819/ - BY MAKING ADDITION OF RS.1,48,21,849 / - U/S. 69 OF THE I.T. ACT . 3 ITA NO. 21 0/PN/2014 CO NO.02/PN/2015 SHRI BIPIN VIDYADHAR CHOBHE 4. IN APPEAL, SINCE THERE WAS NON - COMPLIANCE DESPITE SUFFICIENT OPPORTUNITY GIVEN TO THE ASSESSEE, THE LD. CIT(A) VIDE ORDER DATED 28.01.2015 CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 5. AGGRIEVED WITH SUCH ORDER OF LD. CIT(A) , THE ASSESSEE IS IN APPEAL BEFORE US . 6 . THE LEARNED COUNSEL FOR THE ASSESSEE WHILE BRIEFLY EXPLAINING THE CASE SUBMITTED THAT THE ASSESSEE IS A CONTRACTOR AND HAS RECEIVED GROSS RECEIPTS FROM CONTRACTS OF RS. 26,06,446/ - , ON WHICH IT HAS OFFERED PROFIT @ 15% AMOUNTING TO RS.3,09,967/ - . IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR, THE RECEIPTS WERE RS. 1,72,62,153/ - , ON WHICH THE PROFITS SHOWN WAS RS.4,46,789/ - . RS. 1,72,62,153/ - , ON WHICH THE PROFITS SHOWN WAS RS.4,46,789/ - . HE SUBMITTED THAT DUE TO NON APPEARANCE BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE BEFORE THE LOWER AUTHO RITIES , EXPARTE ORDERS WERE PASSED BY THE ASSESSING OFFICER AS WELL AS LD. CIT AND THE LD. CIT(A) . HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE SHOULD BE GIVEN ONE LAST OPPORTUNITY TO REPRESENT HIS CASE. HE ALSO UNDERTOOK NOT TO SEEK AN Y ADJOURNMENT AND APPEAR BEFORE THE ASSESSING OFFICER OR LD. CIT(A) WHEREVER THE BENCH RESTORES THE MATTER. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, OPPOSED SUCH PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITT ED THAT DESPITE REPEATED OPPORTUNITIES GIVEN BY 4 ITA NO. 21 0/PN/2014 CO NO.02/PN/2015 SHRI BIPIN VIDYADHAR CHOBHE LD. CIT, ASSESSING OFFICER AND THE LD. CIT(A) , THE ASSESSEE CHOOSE NOT TO APPEAR BEFORE THE REVENUE AUTHORITIES FOR REASONS BEST KNOWN TO HIM. HE SUBMITTED THAT IN CASE THE MATTER IS RESTORED TO THE FILE OF EITHER OF THE REVENUE AUTHORITIES, THEN EXEMPL E RY COST SHOULD BE LEVIED ON THE ASSESSEE, SO THAT IN FUTURE, HE WILL APPEAR BEFORE THE REVENUE AUTHORITIES . 8. THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS REJOINDER SUBMITTED THAT THE ASSESSEE IS WILLING TO PAY TOKEN COST AS EXEMPL E RY COST. 9 . WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BOTH BY THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER , LD. CIT AND LD.CIT (A) . FROM THE RECORDS, IT APPEARS THAT THE ASSESSEE IS A LD.CIT (A) . FROM THE RECORDS, IT APPEARS THAT THE ASSESSEE IS A RECALCITRANT ONE, WHO HAS SCANT REGARDS FOR THE STATUTORY NOTICES ISSUED BY THE REVENUE AUTHORITIES. HOWEVER, KEEPING IN VIEW THE ASSURANCE GIVEN BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT T HE ASSESSEE WILL COOPERAT E WITH THE REVENUE AUTHORITIES AND IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED OPINION THAT ONE FINAL OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE SUBJECT TO LEVY OF COST OF RS.10,000/ - . WE ACCORDINGLY, RESTORE TH E MATTER BACK TO THE FILE OF ASSESSI NG OFFICER WITH A DIRECTION TO GIVE ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE. THE ASSESSEE IS DIRECTED TO DEPOSIT RS.10,000/ - ON OR BEFORE 31.12.2015 AND PRO D U C E THE CHALLAN BEFORE THE ASSESSING OFFICER . THE ASSESSING OFFICER SHALL 5 ITA NO. 21 0/PN/2014 CO NO.02/PN/2015 SHRI BIPIN VIDYADHAR CHOBHE DECIDE THE MATTER AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY, ALLOWED FOR STATISTICAL PURPOSES. 1 0 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . PRONOUNCED ON 1 3 T H NOVEMBER, 201 5 . SD/ - SD/ - ( / VIKAS AWASTHY) ( . . / R.K. PANDA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 1 3 T H NOVEM BER, 2015 GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 2 , AURANGABAD. 4. / THE CIT - 2, AURANGABAD. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // //TRUE COPY// / SR. PRIVATE SECRETARY , / ITAT, PUNE