Smt. Khushali Umang Patel, Ahmedabad V. The Income tax Offficer,Ward-10(2), Ahmedabad

ITA 3146/AHD/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67921 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 09-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUBRATA VERMA JDIT
• Assessee Lawyers: HARSHAD THAKKAR

Judgement Text

, , , , SMC, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, SMC BENCH . .. . . .. . , !' # ' !' # ' !' # ' !' # ' BEFORE SHRI G.C. GUPTA, VICE-PRESIDENT ITA NO.3146/AHD/2011 [ASSTT.YEAR : 2008-2009] SMT. KHUSHALI UMANG PATEL ISHWAR MAGNA OPP: MANGAL VIDYALAYA MITHAKHALI, ELLISBRIDGE AHMEDABAD 380 006. PAN : AXYPS 9908 A /VS. ITO, WARD-10(2) AHMEDABAD. ( (( (%& %& %& %& / APPELLANT) ( (( ('(%& '(%& '(%& '(%& / RESPONDENT) )* + , #/ ASSESSEE BY : SHRI HARSHAD THAKKAR . + , #/ REVENUE BY : SHRI SHUBRATA VERMA, JDIT / + *01/ DATE OF HEARING : 14 TH OCTOBER, 2013 234 + *01/ DATE OF PRONOUNCEMENT : 13.11.2013 #5 / O R D E R THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-XVI, AH MEDABAD DATED 9.9.2011. 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: ITA NO.3146/AHD/2011 -2- 1) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL A S ON FACTS BY MAKING ADDITION AMOUNTING TO RS.2,18,910/- WITHOUT SUPPLYING THE COPY OF ANY DETAILS PROPOSED FOR ADDITIONS AND FINALIZED THE ASSESSMENT ON EX-PARTE BASIS. THE LEARNED CIT(A) HAS ERRED IN LAW BY DISMISSAL OF APPEAL WITHOUT VERIFYING THE DOCUMENTS ATTACHED WITH THE A PPEAL. 2) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL A S ON FACTS BY FINALIZING THE ASSESSMENT ON EXPARTE BASIS WITHOUT GRANT OF PROPER AND SUFFICIENT OPPORTUNITIES FOR FU RNISHING THE DETAILS WHICH DIDN'T PERTAINED TO THE ASSESSEE. HE ALSO IGNORED THE REQUEST FOR ADJOURNMENTS. THE LEARNED C IT(A) HAS NOT CONSIDERED THIS ISSUE AT ALL IN HIS DECISIO N. 3) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL A S ON FACTS BY MAKING ADDITION OF RS.18910/- AS UNDISCLOS ED INTEREST INCOME, INTEREST DOESN'T PERTAINS TO THE A SSESSEE. THE APPELLANT HAD ALREADY FURNISHED COPIES OF INTER EST A/C, CONTRA A/C OF THE PAYER. BUT THE ASSESSING OFFICER DIDN'T VERIFIED THE RECORDS AT ALL AND MADE THE ADDITION O F INTEREST INCOME OF L8,910/- OF WHICH THERE IS NO EXISTENCE IN ANY OF THE RECORD OF THE ASSESSEE. THE ASSESSING OFFICER C AN NOT MAKE ADDITION WHICH IS NEITHER ON RECORD NOR BASED ON ANY INFORMATION PERTAINING TO THE ASSESSEE. THE LEARNED CIT(A) HAS AGAIN ERRED IN LAW BY CONFIRMING THIS ADDITION AS A RESULT OF DISMISSAL. 4) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL A S ON FACTS BY MAKING ADDITION OF RS.200000/- ON THE BASI S OF PRESUMPTION OF DEPOSIT ADVANCED BY THE APPELLANT ON HYPOTHETICAL BASE. THERE IS NO SUCH AMOUNT ADVANCED BY THE APPELLANT, NOR SUCH ADVANCE REFLECTED ANYWHERE IN THE RECORDS. THE LEARNED CIT(A) HAS ONCE AGAIN ERRED IN LAW IN WHICH LIE HAS NOT READ THE STATEMENT OF FACTS OR GR OUNDS OF APPEAL AND THE COPY OF INTEREST ACCOUNTS ATTACHED W ITH THE APPEAL MEMORANDUM. ITA NO.3146/AHD/2011 -3- 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THERE WAS MISTAKE IN THE FORM NO.26A SUBMITTED BY THE ASS ESSEE, AND THE SAME WAS EXPLAINED TO THE CIT(A) AND THE CIT(A) HAS NOT GIVEN PROPER OPPORTUNITY TO THE ASSESSEE AND HAS NO T CONSIDERED THE REQUEST FOR ADJOURNMENT OF THE HEARING OF THE A PPEAL, AND HAS PASSED APPELLATE ORDER EX PARTE QUA THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE IS IN A POSITION TO EXPLAIN THE S O-CALLED DISCREPANCY AND NO ADDITION WAS CALLED FOR. THE LE ARNED DR HAS RELIED ON THE ORDER OF THE AO AND THE CIT(A). 4. I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). I FIND THAT THE EX PARTE ASSESSMENT WAS FRAMED BY THE AO AND THE CIT(A) ALSO PASSED EX PARTE APPELLATE ORDER. IT SEEMS THAT THE ASSESSEE COULD NOT PRODUCE NECESSARY EVIDENCE TO RECONCILE THE FIGURES AS MENT IONED IN THE FORM NO.26A SUBMITTED BY IT. IN THE FACTS AND CIRC UMSTANCES OF THE CASE, I AM OF THE VIEW THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS CASE BEFORE THE AO. ACCORDINGLY, THE ISSUE IN THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE RESTORED TO THE FILE OF THE AO WITH DIRECTION TO FRAME DE NOVO ASSESSMENT AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESS EE SHALL BE AT LIBERTY TO FILE THE EVIDENCES IN SUPPORT OF ITS CAS E BEFORE THE AO. I FURTHER DIRECT THE ASSESSEE TO COOPERATE WITH THE DEPARTMENT IN THE MATTER OF FINALIZATION OF ITS ASSESSMENT AND TO APPEAR BEFORE THE AO SUO MOTO WITHIN A PERIOD OF 45 DAYS FROM THE DATE OF ITA NO.3146/AHD/2011 -4- SERVICE OF THE TRIBUNAL ORDER AND TO PROCURE A NOTI CE OF HEARING IN THIS CASE. I DIRECT ACCORDINGLY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD