BHUPESH NATWARLAL SANGANI HUF, Nagpur V. I.T.O. WARD -5(3), Nagpur

ITA 339/NAG/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2165 (ITAT-NAGPUR)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Assessee Lawyers: S K PANPALIA
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice

Judgement Text

1 ITA NO. 339/NAG/2016. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 339 /NAG/2016. ASSESSMENT YEAR : 200 7 - 08 . BHUPESH NATWARLAL SANGANI, HUF, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 5(3), NAGPUR. PAN AAKHS9259K. APPELLANT. RESPONDENT. APPELLANT BY : S HRI S.K. PANPALIA. RESPONDEN T BY : S MT. AGNES P. THOMAS. DATE OF HEARING : 0 8 - 07 - 2016 DATE OF PRONOUNCEMENT : 8 TH JULY, 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - 4 , NAGPUR DATED 1 6 - 02 - 2016 AND PERTAINS TO ASSESSMENT YEAR 200 7 - 08 . THE GROUNDS OF APPEAL READ AS UNDER : 1. UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) NOT JUSTIFIED IN TREATING THE CASH DEPOSITED INTO BANK ACCOUNT OF RS.1,40, 000/ - AS INCOME FROM UNDISCLOSED SOURCES ON THE FOLLOWING GROUNDS : A. THE LEARNED A.O. FAILED TO APPRECIATE THE EXPLANATIONS GIVEN BY THE ASSESSEE REGARDING DEPOSIT OF CASH INTO BANK WHICH IS OUT OF CASH BALANCES AVAILABLE WITH THE ASSESSEE AND THE SAID CAS H IS OUT OF THE INCOME ALREADY SUBJECT TO TAX IN CURRENT YEAR AND EARLIER YEAR. B. THE CASH DEPOSITED IN BANK ACCOUNT IS DULY SUPPORTED BY THE CASH FLOW AND THE BALANCE SHEET OF THE ASSESSEE ALREADY ON RECORD OF AO. AO FAILED TO POINT OUT ANY DISCREPANCY IN T HE INCOME AND EXPENDITURE, BALANCE SHEET AND CASH STATEMENT FILED BY THE ASSESSEE. 2 ITA NO. 339/NAG/2016. 2. UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) NOT JUSTIFIED IN CONFIRMING THE ADDITION SOLELY ON THE GROUND OF NON - A TTENDANCE AND NON SUBMISSION OF DOCUMENT IN SUPPORT OF THE CLAIM, WHEREAS THE COUNSEL HAS ATTENDED TIME TO TIME BEFORE THE COMMISSIONER. THE SUPPORTING SUCH AS COMPUTATION OF INCOME, INCOME & EXPENDITURE ACCOUNT AND BALANCE SHEET ALREADY ON RECORD. 2. I H AVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. IN THIS CASE THE LEARNED CIT(APPEALS) HAS NOTED THAT COUPLE OF NOTICES WERE SENT TO THE ASSESSEE BUT THERE WAS NO COMPLIANCE. HENCE THE LEARNED CIT(APPEALS) HAS DISMISSED THE ASSESSEES APPEAL WITHOUT PAS SING A SPEAKING ORDER. SECTION 251 OF THE I.T. ACT WHICH CONTAINS THE POWERS OF THE CIT(APPEALS) NO WHERE PROVIDES THAT THE CIT(APPEALS) IS EMPOWERED TO DISMISS THE APPEAL FOR NON PROSECUTION AND NOT PASS A SPEAKING ORDER ON THE MERITS OF THE CASE. AS A MA TTER OF FACT HONBLE JURISDICTIONAL HIGH COURT HAS EXPOUNDED THAT EVEN THE ITAT CANNOT PASS AN ORDER BY DISMISSING THE APPEAL FOR NON PROSECUTION WITHOUT PASSING AN ORDER ON MERITS OF THE CASE. I FURTHER FIND THAT HONBLE APEX COURT IN THE CASE OF SAHARA I NDIA (FIRM) 300 ITR 403 HAS HELD THAT EVEN ADMINISTRATIVE ORDERS HAVE TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. CONSIDERING THE PRESENT DECISION OF THE CIT(APPEALS) ON THE ANVIL OF AFORESAID DISCUSSION AND PRE CEDENT , I FIND THAT INTEREST OF JUS TICE DEMANDS THAT THE ISSUE IN THIS APPEAL SHOULD BE REMITTED TO THE FILE OF THE LEARNED CIT(APPEALS). ACCORDINGLY THE ISSUE IS REMITTED TO THE FILE OF LEARNED CIT(APPEALS). LEARNED CIT(APPEALS) IS DIRECTED TO PASS A SPEAKING ORDER ON THE MERITS OF THE ISS UE IN THIS CASE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO APPEA R BEFORE THE LEARNED CIT(APPEALS) SUO MOTO WITHIN 30 DAYS AFTER RECEIVING THIS ORDER TO CANVASS THE APPEAL. 3 ITA NO. 339/NAG/2016. 3. IN THE RESULT, THIS APPEAL F ILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF JULY,2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 8 TH JULY, 2016. COPY FORWARDED TO : 1. SHRI BHUPESH NATWARLAL SANGANI, KRISHNA DARSHAN, DARODKAR SQUARE, ITWARI, NAGUR - 440001. 2. I.T.O., WARD - 5(3) , NAGPUR. 3. C.I.T. - , NAGPUR. 4. CIT(APPEALS), - 4 , NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.