Shri Jayantibhai Babaldas Prajapati, Ahmedabad V. The Income Tax Officer, Ward-4(2)(2), Ahmedabad

ITA 3392/AHD/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0702 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 16-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CHHAJAD
• Keywords: Opportunity of being heard; Set aside
• Section: 69C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.3392/AHD/2016 (ASSESSMENT YEAR : 2012-13) SHRI JAYANTIBHAI BABALDAS PRAJAPATI, 119, K. K. NAGAR, SECTOR 2, OPP. SHANKARDA HALL, AHMEDABAD 380 061. VS. ITO, WARD 4(2)(2), AHMEDABAD. [PAN NO. ACYPP 9050 H] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI M. S. CHHAJAD, A.R. RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. DATE OF HEARING 14.06.2019 DATE OF PRONOUNCEMENT 25.06.2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECT ED AGAINST THE ORDER DATED 20.10.2016 PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS) 4, AHMADABAD ARISING OUT OF THE ORDER DATED 24.03.2015 PASSED BY THE INCOME TAX OFFICER, WARD 4(2)(2), AHMEDABAD UNDER SECTIO N 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT ) FOR ASSESSMENT YEAR 2012- 13. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THIS THAT THE DATE OF HEARING WAS FIXED ON 04.10.2016 BUT ON THE SAID DATE THE LEARNE D CIT(A) WAS ON LEAVE AND NO FRESH DATE OF HEARING WAS GIVEN PRIOR TO FINALIS ATION OF ORDER PASSED BY THE ITA NO.3392/AHD/2016 SHRI JAYANTIBHAI BABALDAS PRAJAPATI VS. ITO ASSESSMENT YEAR 2012-13 - 2 - LEARNED CIT(A). THE LEARNED CIT(A) BY AND UNDER THE SAID EX-PARTE ORDER CONFIRMED THE ADDITION U/S 69C OF THE ACT OF RS.89, 77,242/- MADE BY THE LEARNED AO. 3. THE BRIEF FACTS LEADING TO THIS CASE IS THIS THA T THE ASSESSEE, AN INDIVIDUAL FILED ITS RETURN OF INCOME ON 12.12.2012 DECLARING TOTAL INCOME OF RS.6,62,730/- WHICH WAS FINALIZED BY THE LEARNED AO BY MAKING ADDITION ON UNDISCLOSED INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES TO THE TUNE OF RS.84,97,242/- WHICH WAS, IN TURN, CONFIRMED BY THE LEARNED CIT(A). IT APPEARS FROM THE RECORDS THAT ON 8 OCCASION THE MAT TER WAS LISTED BEFORE THE LEARNED CIT(A) FOR HEARING OUT OF WHICH 5 OCCASIONS AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED AND SOUGHT FOR ADJOURNMENT . HOWEVER, IN 3 OCCASIONS, THE ASSESSEE WAS NOT BEEN ABLE TO REPRESENT HIMSELF . BUT ON 04.10.2016 THOUGH THE MATTER WAS FIXED FOR HEARING BY THE LEARNED CIT (A) NO HEARING TOOK PLACE SINCE THE LEARNED CIT(A) WAS ON LEAVE. HOWEVER, AS NONE COULD RECORD THE PRESENT ON BEHALF OF THE ASSESSEE THE MATTER WAS FO UND TO BE EX-PARTE. IT IS RELEVANT TO MENTION THAT NO FURTHER DATE WAS FIXED FOR HEARING BEFORE THE MATTER WAS FINALIZED BY THE LEARNED CIT(A) AS THE GROUND T AKEN BY THE LEARNED AR. HOWEVER, THE LEARNED DR RELY UPON THE ORDER PASSED BY THE AUTHORITIES BELOW AND FAILED TO CONTROVERT SUCH CONTENTION OF T HE LEARNED AR THAT THE LEARNED CIT(A) WAS ON LEAVE ON 04/10/2016 AND ASSES SEE WAS NOT BEEN ABLE TO REPRESENT HIMSELF WHEN NO HEARING TOOK PLACE ON THA T PARTICULAR DATE. THE LEARNED AR PRAYS FOR SETTING ASIDE THE ISSUE TO AUT HORITIES BELOW. ITA NO.3392/AHD/2016 SHRI JAYANTIBHAI BABALDAS PRAJAPATI VS. ITO ASSESSMENT YEAR 2012-13 - 3 - 4. HAVING HEARD THE RESPECTIVE PARTIES, REGARD TO T HE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT THOUGH IT IS A FACT THAT ADJOURNMENT WERE SOUGHT FOR ON NUMBER OF OCCAS IONS BY THE ASSESSEE BEFORE THE LEARNED CIT(A) ULTIMATELY, THE DAY WHEN THE ORDER WAS PASSED, HEARING COULD NOT BE TAKEN PLACE AS HE WAS ON LEAVE . SUCH SUBMISSION MADE BY THE LEARNED AR SEEMS TO BE GENUINE SINCE NOT CONTRO VERTED BY THE LEARNED DR BEFORE US. IN THAT VIEW OF THE MATTER, WE FIND SUFFICIENT REAS ON TO GIVE ANOTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE FOR ENDS OF JUSTICE. WE THUS FIND IT FIT AND PROPER TO SET ASIDE THE ISSUE TO THE FILE O F THE LEARNED CIT(A) TO DECIDE THE ISSUE AFRESH UPON GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE AND UPON TAKING INTO CONSIDERATION THE EVIDENCE ON RECORD AN D ALSO THE EVIDENCES WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEAR ING OF THE APPEAL. HENCE, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS ES. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 25/06/2019 SD/- SD /- ( PRAMOD KUMAR ) ( M S. MADHUMITA ROY ) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD; DATED 25/06/2019 PRITI YADAV, SR.PS ITA NO.3392/AHD/2016 SHRI JAYANTIBHAI BABALDAS PRAJAPATI VS. ITO ASSESSMENT YEAR 2012-13 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-4, AHMEDABAD. 5. , , / DR, ITAT, AHMEDABAD 6. !' #$ / GUARD FILE. / BY ORDER , //TRUE COPY// / (DY./ASSTT.REGISTRAR) , !' / ITAT, AHMEDABAD 1. DATE OF DICTATION 14.06.2019 (DICTATION PAGES 3) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 18.06.2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S ,19.06.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER