Shri Gunjan Kantilal Mody, Ahmedabad V. The Income Tax Officer, Ward-2(1), Ahmedabad

ITA 3131/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0488 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 31-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: S N DIVETIA
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 3131/AHD/2013 / ASSESSMENT YEAR : 2009-10 GUNJAN KANTILAL MODY, C/O. M/S. VIDHYARTHI BOOK DEPOT, BELOW FERNANDEZ BRIDGE, GANDHI ROAD, AHMEDABAD PAN : ADKPM 8827 C VS INCOME TAX OFFICER, WARD 2 (1), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.N. DIVETIA, AR REVENUE BY : SMT. SONIA KUMAR, SR DR / DATE OF HEARING : 05/10/2016 / DATE OF PRONOUNCEMENT: 06/10/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-III, A HMEDABAD DATED 17.10.2013 FOR ASSESSMENT YEAR 2009-10. 2. FOLLOWING TWO GROUNDS ARE RAISED:- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION OF RS.10,33,100/- AS UNEXPLAINED INVESTMENT OF ASSE SSEE U/S 69 OF THE INCOME-TAX ACT, 1961. 2. THE LEARNED CIT(A) HAS FURTHER ERRED IN HOLDING THA T EVEN IF THE ASSESSMENT ORDER IS NOT SIGNED BY THE AO, IT IS NOT A FATAL MISTAKE IN VIEW OF SECTION 292B OF THE INCOME-TAX ACT, 1961. 3. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, CONTENDS THAT THE ASSESSMENT ORDER IN QUESTION IS NOT SIGNED BY THE A SSESSING OFFICER; CONSEQUENTLY, IT BECOMES NON-EST ORDER BEING WITHOU T JURISDICTION. IN THE ABSENCE OF ANY AUTHENTICATION AND SIGNATURE OF AO, THE ORDER CANNOT BECOME A LEGAL AND ENFORCEABLE ORDER. THIS ISSUE W AS SPECIFICALLY RAISED BEFORE THE LD. CIT(A) WHO DID NOT CALL FOR THE RECO RD AND VERIFY THE FACTS SMC-ITA NO. 3131/AHD/2013 GUNJAN KANTILAL MODY VS. ITO AY : 2009-10 2 PERSONALLY AND DISMISSED THE LEGAL GROUND. ON MERI T ALSO, IT IS CONTENDED THAT THE ASSESSEES RELEVANT ARGUMENTS THAT THE WIL L OF LATE SHRI CHINUBHAI JIVANLAL MODY WAS A CLEAR EVIDENCE TO CORROBORATE T HE FACT THAT SMT. LILAVATI CHINUBHAI MODI KEPT THE CASH IN HER CUPBOARD. SINC E NEITHER THE RELEVANT LEGAL ISSUE NOR THE FACTUAL ISSUE HAS BEEN ADDRESSE D BY THE LD. CIT(A); THEREFORE, THE ADDITION MAY BE DELETED. 4. THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORD ERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN MY CONSIDERED VIEW, WHEN THE ASSESSEE HAS RAISED A PER TINENT LEGAL GROUND ABOUT THE ASSESSMENT ORDER BEING NOT SIGNED BY THE AO, LD. CIT(A) OUGHT TO HAVE DECIDED THIS GROUND AFTER CALLING FOR THE RELE VANT RECORDS AND VERIFYING IT BY HIMSELF. THE DISMISSAL OF THE LEGAL GROUND S EEMS TO BE CASUAL IN NATURE. BESIDES, ON MERIT ALSO THE ASSESSEES EXPL ANATION AND EVIDENCE DESERVES TO BE OBJECTIVELY CONSIDERED BY LD. CIT(A) . IN VIEW THEREOF, I AM INCLINED TO SET ASIDE THE APPEAL BACK TO THE FILE O F THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER CALLING FOR THE RELEVANT ASSESSME NT RECORDS AND GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 06 TH OCTOBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 06/10/2016 *BIJU T. SMC-ITA NO. 3131/AHD/2013 GUNJAN KANTILAL MODY VS. ITO AY : 2009-10 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD