Geetaben Suresh Chandra Champaneria, Surat V. Income Tax Officer,Ward-3(2), Surat

ITA 3380/AHD/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1857 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 04-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S CHOUDHARY
• Keywords: Opportunity of being heard
• Section: 148

Judgement Text

GEETABEN SURSHCHANDRA CHAMPANERIA VS. ITO, WARD-3(2), SURAT ITA NO.3380/AHD/2015/A.Y. 2008-09 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT , . . , BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./I.T.A. NO.3380/AHD/2015/SRT /ASSESSMENT YEAR : 2008-09 GEETABEN SURSHCHANDRA CHAMPANERIA, 75 TO 77, JALARAM NAGAR SOCIETY, OPP.MORAR JI GARDEN, ADAJAN, SURAT. [PAN: AAZPC 7853 L] VS. THE INCOME TAX OFFICER, WARD-3(2), SURAT. APPELLANT /RESPONDENT /ASSESSEE BY MS.CHAITALI SHAH CA /REVENUE BY SHRI P.S.CHOUDHARY SR.DR / DATE OF HEARING: 0 7 . 0 1 .201 9 /PRONOUNCEMENT ON 09 .01.2019 /O R D E R PER DIVA SINGH: 1. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 10.08.2015 OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, SURAT PERTAINING TO 2008-09 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCIOME-TAX(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN REOPENING ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE I.T.ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LD.ASSESSING OFFICER & CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.3,00,000/- U/S.68 OF THE I.T.ACT, 1961 FOR THE ALLEGED UNEXPLAINED LOANS WHEN THE ITEMS FORMING PART OF THE REASONS RECORDED U/S .148(2) ARE NOT FORMING PART OF THPE ADDITION MADE BY ASSESSING OFFICER. GEETABEN SURSHCHANDRA CHAMPANERIA VS. ITO, WARD-3(2), SURAT ITA NO.3380/AHD/2015/A.Y. 2008-09 PAGE 2 OF 4 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.3,00,000/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOAN U/S.68 OF THE I.T.ACT, 1961 ON MERITS OF THE CASE. 4. IT IS THEREFORE PRAYED THAT ADDITION MADE BY ASSESSING OFFICER AND CONFIRMED BY CIT(A) MAY8 PLEASE BE DELETED. 5. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 2. THE LD.AR, MS.CHAITALI SHAH INVITING ATTENTION TO THE GROUNDS RAISED SUBMITTED THAT IT IS NOT POSSIBLE TO ARGUE AS THE COPY OF REASONS RECORDED WERE NOT MADE AVAILABLE TO THE ASSESSEE AND ARE YET TO BE OBTAINED BY THE ASSESSEE. IT WAS HER SUBMISSION THAT WITHOUT IT GROUND NO.1 RAISED IN THE PRESENT APPEAL CANNOT BE ARGUED. FOR THE SAID PURPOSES THE DIRECTIONS GIVEN BY THE ITAT ON DIFFERENT DATES OF HEARING WERE RELIED UPON. 3. THE LD.SENIOR DEPARTMENTAL REPRESENTATIVE (SR.DR) WAS REQUIRED TO ADDRESS THE AFORESAID SUBMISSION. ON A READING OF THE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER THE LD.SR.DR WAS REQUIRED TO ADDRESS WHETHER REASONS RECORDED HAVE BEEN CONFRONTED TO THE ASSESSEE OR NOT. THE LD.SR.DR ONGOING THROUGH THE ORDERS STATED THAT THERE WAS NO REFERENCE TO THESE FACTS. ON A READING OF THE ORDER SHEET ENTRIES DATED 31.07.2018, 05.10.2018 AND 19.11.2018 IT WAS POINTED OUT THAT THE CO-ORDINATE BENCH HAS BEEN REPEATEDLY REQUIRING THE REVENUE TO PRODUCE THE RECORDS AND SPECIFICALLY THE SUPPLY OF COPY OF REASONS RECORDED. THE LD.SR.DR STATED THAT THESE ARE NOT AVAILABLE WITH HIM. 4. IN THE LIGHT OF THESE FACTS AND SUBMISSIONS BOTH THE PARTIES HAVE BEEN HEARD. 5. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE IS STATED TO BE A HOUSEWIFE, ALLEGEDLY ATTENDING TO HER HUSBANDS OFFICE WHO IS PRACTICING AS A CIVIL ADVOCATE. SHE IS ALSO STATED TO BE ENGAGED IN COMPUTER TYPING WORK AND APART FROM EARNING INCOME FROM TYPING SHE IS ALSO STATED TO BE INVESTING IN SHARE MARKET FROM HER PERSONAL SAVINGS ETC., THE SUBJECT MATTER OF ADDITION ON MERIT, IN THE FACTS OF THE PRESENT CASE IS HER GEETABEN SURSHCHANDRA CHAMPANERIA VS. ITO, WARD-3(2), SURAT ITA NO.3380/AHD/2015/A.Y. 2008-09 PAGE 3 OF 4 INVESTMENT IN A PROPERTY AS CO-OWNER ALONG WITH HER HUSBAND AND HER CHILDREN. HOWEVER, THE OCCASION TO ADDRESS THE SAID ISSUE WILL ARISE ONLY AFTER ADDRESSING THE JURISDICTIONAL ISSUE. WE HAVE SEEN THE ORDER SHEET ENTRIES OF THE RESPECTIVE DATES STARTING FROM 31/07/2018 AND NOTE THAT ADMITTEDLY REASONS RECORDED HAVE NOT BEEN MADE AVAILABLE EITHER TO THE ASSESSEE OR THE ITAT. IN THESE CIRCUMSTANCES, IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH IT IS DEEMED APPROPRIATE TO SET-ASIDE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER DIRECTING THE SAID AUTHORITY TO MAKE A COPY OF REASONS RECORDED AVAILABLE TO THE ASSESSEE AND PROCEED TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IT MAY NOT BE OUT OF PLACE TO NOTE THAT THE SINE QUA NON OF ACQUIRING JURISDICTION U/S.147 OF THE INCOME TAX ACT, 1961 ARE THE REASONS RECORDED AND THEIR COMMUNICATION TO THE ASSESSEE. IN THE FACTS OF THE PRESENT CASE, IN THE ABSENCE OF ANY DISCUSSION IN THE ORDERS OF THE TAX AUTHORITIES WE DEEM IT APPROPRIATE TO SET-ASIDE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE RESPECTIVE ORDER SHEET ENTRIES WHICH WE HAVE TAKEN INTO CONSIDERATION BEFORE PASSING THE ORDER AND AFTER HEARING THE SUBMISSIONS ARE EXTRACTED HEREUNDER FOR THE SAKE OF COMPLETENESS : 31/07/2018 HEARING IS ADJOURNED TO 30.08.2018 AT THE REQUEST OF SHRI MEHUL R.SHAH, CA. THE LD.DR IS DIRECTED TO SUPPLY THE COPY OF REASONS RECOR U/S.148(2) TO THE ASSESSEE. SHRI R.P.RASTOGI, SR.DR WAS PRESENT BOTH THE PARTIES ARE INFORMED. OPM CMG (AM) (JM) 05/10/2018 FOR ASSESSEE- SHRI RASESH SHAH, CA FOR REVENUE- SHRI R.P.RASTOGI, SR.DR HEARING IS ADJOURNED TO 19.11.2018 AS LD.DR IS DIRECTED TO PROVIDE THE REASONS RECORDED U/S.148(2) TO THE ASSESSEE. BOTH PARTIES ARE INFORMED. OPM CMG (AM) (JM) 19/11/2018 PRESENT FOR ASSESSEE - SHRI RASESH SHAH, CA PRESENT FOR DEPARTMENT MS.ANUPAMA SINGH, SR.DR GEETABEN SURSHCHANDRA CHAMPANERIA VS. ITO, WARD-3(2), SURAT ITA NO.3380/AHD/2015/A.Y. 2008-09 PAGE 4 OF 4 HEARING IS ADJOURNED TO 07.01.2019 AS LD.DR IS DIRECTED TO PROVIDE THE REASONS RECORDED U/S.148(2) TO THE ASSESSEE. BOTH THE PARTIES INFORMED IN OPEN COURT. MR AJS (JM) (AM) 6. ACCORDINGLY, FOR THE DETAILED REASONS SET OUT HEREINABOVE THE IMPUGNED ORDER IS SET-ASIDE BACK TO THE FILE OF THE AO TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. SAID ORDER WAS PRONOUNCED ON OPEN COURT AT THE TIME OF HEARING ITSELF. 7. IN THE RESULT, APPEAL OF THE ASSESSEE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 09.01.2019. SD/- SD/- ( .. / O.P.MEENA) ( /DIVA SINGH) /ACCOUNTANT MEMBER ( /JUDICIAL MEMBER) / SURAT, DATED : 9 TH JANUARY , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT