The ITO, Ward-7(2), Surat V. Shri Kumbhandas D.Thakkar, Surat

ITA 3392/AHD/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67731 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-09-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 23-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: M K PATEL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T. R. MEENA, ACCOUNTANT MEMBER ITA NO. 3392/AHD/2010 A.Y. 2005-06 INCOME TAX OFFICER, WARD 7(2), ROOM NO.619, 6 TH FLOOR, AAYAKAR BHAVAN, MAJURA GATE, SURAT VS SHRI KUMBHANDAS D. THAKKAR PROP: PAWAN EXPORTS, 7/3269, ROOM NO.1, DHOBI SHERI, SAIYEDPURA, SURAT. PAN: AATPT 0666J (APPELLANT) (RESPONDENT) REVENUE BY : SHRI P.L. KUREEL, D.R. ASSESSEE(S) BY : SHRI M. K. PATEL, A.R. DATE OF HEARING : 26/09/ 2013 DATE OF PRONOUNCEMENT : 27/09/2013 O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM AN ORDER OF LEARNED CIT(A)-V, SURAT DATED 7.10.2010. 2. THE MAIN GROUND OF THE REVENUE IS REPRODUCED BEL OW: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE AO O N ACCOUNT OF UNACCOUNTED PURCHASE OF RS.15,03,610/- DESPITE THE FACT THAT IN SPITE OF SEVERAL OPPORTUNITIES GIVEN TO THE ASSESSEE, ASSESSEE FAILE D TO SUBMIT ANY REPLY FORCING THE AO TO PASS THE ORDER U/S.144 OF THE ACT. 3. AN ASSESSMENT ORDER WAS MADE U/S.144 R.W.S. 147 OF IT ACT, DATED 30 TH OF DECEMBER, 2009. AN ADMITTED FACTUAL POSITION WA S THAT THE AO HAD ISSUED FEW NOTICES WHICH WERE NOT COMPLIED WITH BY THE ASSESSEE. THE AO HAS RECEIVED CERTAIN INFORMATION FROM ITO, J AIPUR. ON THE BASIS OF THE SAID INFORMATION, IT WAS HELD BY THE AO THAT ASSESSEE HAS NOT ITA NO.3392/AHD/2010 ITO VS. SHRI KUMBHANDAS D. THAKKAR 2005-06 - 2 - ACCOUNTED FOR AN AMOUNT AT RS.15,03,610/- AND CONCE ALED THE PURCHASE WHICH WAS ALLEGED TO HAVE BEEN MADE FROM M.P. JAIN, JAIPUR. RESULTANTLY, THE SAID AMOUNT WAS TAXED IN THE HANDS OF THE ASSESSEE. 4. WHEN THE MATTER WAS CARRIED BY LEARNED CIT(A) CE RTAIN FACTS AND EVIDENCES WERE APPRECIATED AND THEREAFTER A RELIEF WAS GRANTED IN THE FOLLOWING MANNER: I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. BE FORE PROCEEDING TO DISCUSS THE FACTS AND FIGURES, I CONSIDER IT RELEVANT AND U SEFUL TO DELIBERATE, IN BRIEF, THE CASE OF THE TWO PARTIES, AS WELL AS THE LAW IN THE MATTER. THE CASE, PRIMARILY, IS THAT ONLY ON THE BASIS OF STATEMENT O F A THIRD PARTY THE AO HAS MADE ADDITION IN THE APPELLANTS CASE WITHOUT GIVIN G ANY OPPORTUNITY TO THE APPELLANT. FURTHER, IT IS A FACT THAT THE APPELLANT HAD SUBMITTED ALL THE DETAILS AND PRODUCED BOOKS OF ACCOUNTS AT THE TIME OF ORIGI NAL ASSESSMENT, BASED ON WHICH THE AO HAS NOW BEEN ABLE TO FIND THAT THERE W AS NO SUCH PURCHASE HAS BEEN MADE FROM MR. M. P. JAIN. I AM OF THE OPINION THAT PRODUCING EVIDENCE OF SO CALLED PURCHASE IS REQUIRED BY THE THIRD PART Y. FURTHER, PRINCIPLE OF NATURE OF JUSTICE TO CROSS EXAMINE SHRI M.P. JAIN, THE ASSESSEE OF JAIPUR. IN MY OPINION, THEREFORE, THE AO IS NOT JUSTIFIED IN A SSUMING UNRECORDED PURCHASES BY THE APPELLANT MERELY RELYING ON THE ST ATEMENT AND INFORMATION RECEIVED FROM AO, JAIPUR. THUS, THE ADDITION OF RS. 15,03,610 MADE BY THE AO IS HEREBY DELETED AND THE GROUND OF APPEAL IS ALLOW ED. 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE VIEW THAT IN A SITUATION WHEN AN ORDER HAS BEEN PASSED B Y THE AO EX-PARTE U/S.144 OF IT ACT, THEN IT WAS ACCEPTED FROM LEARNE D CIT(A) TO PROVIDE AN OPPORTUNITY TO THE AO IN RESPECT OF THE EVIDENCE S PLACED BEFORE HIM. LEARNED DR HAS ALSO PLEADED THAT CERTAIN WRONG FACT S HAVE BEEN MENTIONED BY LEARNED CIT(A) WHILE GRANTING RELIEF T O THE ASSESSEE. IN SUCH CIRCUMSTANCES, WHEN THE PROVISIONS OF IT RULES U/S.46A HAVE NOT BEEN PROPERLY FOLLOWED THEN THE NATURAL JUSTICE DEM ANDS TO RESTORE THIS ISSUE FOR RECONSIDERATION. WHEN THIS PROPOSAL WAS D ISCUSSED IN THE COURT THEN BOTH THE SIDES SUGGESTED THAT IN THE INTEREST OF JUSTICE, THE MATTER IS ITA NO.3392/AHD/2010 ITO VS. SHRI KUMBHANDAS D. THAKKAR 2005-06 - 3 - REQUIRED TO BE RESTORED BACK TO THE FILE OF THE AO SO THAT THE BASIC INQUIRIES AS ALSO CERTAIN INVESTIGATIONS CAN BE PRO PERLY CONDUCTED. WE HEREBY ACCEPT THIS PROPOSAL AND RESTORE THIS ISSUE BACK TO THE STAGE OF THE ASSESSMENT TO BE DECIDED DE NOVO AS PER LAW. FURTHE R, WE HEREBY STRICTLY DIRECT THIS ASSESSEE TO FULLY CO-OPERATE WITH THE A SSESSMENT PROCEEDINGS AND SUO MOTO APPEAR BEFORE THE AO WITHIN 30 DAYS ON RECEIPT OF THIS ORDER OF THE TRIBUNAL WITHOUT WAITING FOR ANY NOTIC E OF HEARING FROM THE OFFICE OF THE AO. ON THE OTHER HAND, THE AO IS FREE TO TAKE DUE LEGAL RECOURSE FOR THE COMPLETION OF THE ASSESSMENT. RESU LTANTLY, THE GROUND RAISED BY THE REVENUE MAY BE TREATED AS ALLOWED ONL Y FOR STATISTICAL PURPOSE ONLY. 6. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSE ONLY. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHRAWA T) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/09/2013 PRABHAT KR. KESARWANI, SR.P.S. TRUE COPY COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A)-III, AHMEDABAD 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, (DY./ASSTT.REGISTRAR) ITAT, AHMEDABAD