Shri Mukeshbhai B Dhameliya, Surat V. ITO, Ward-3(3)(3), Surat

ITA 370/SRT/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9249 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 25-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Assessee Lawyers: SAPNESH SHETH
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 201; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH , SURAT BEFORE SHRI AMARJIT SINGH , JM & SHRI O.P.MEENA, AM ITA NO. 370 / SRT / 201 9 ( ASSESSMENT YEAR 20 12 - 13 ) SHRI MUKESHBHAI B. DHAMELIYA 13, KRISHNA NAGAR SOCIETY, VARACHA ROAD, SURAT - 395006 . ITO WARD (3) (3)(3) AAYKAR BHAVAN, MAJURA GATE, SURAT. PAN/GIR NO. ABQPD3554M APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI SAPNESH SHETH REVENUE BY SHRI O. P. SINGH ( D R) DATE OF HEARING 26 / 0 9 / 201 9 DATE OF PRONOUNCEMENT 30 / 09 / 201 9 O R D E R PER AMARJIT SINGH (J .M) : THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 07 .0 6 .201 9 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 MAJURA GATE , SURAT [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y.20 12 - 13 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LD. COMMISSIONER OF INCOME - TAX(APPEALS) HAS ERRED IN PASSING EX - PARTE ORDER WITHOUT PROVIDING REASONABLE OPPORTUNITY OF H EARING TO ASSESSEE & WITHOUT CONSIDERING THE FACT THAT IN ANOTHER CONNECTED CAS VIZ., SHRI KAMLESH M. DHAMELIYA WHEREIN SIMILAR ADDITION IS MADE, DETAILED SUBMISSION WAS ALREADY FILED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJEC T, THE LD. COMMISSIONER OF INCOME - 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 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LD. COMMISSIONER OF INCOME - TAX(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.4,92,87,500/ - AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. THE LD. AO HAS MADE ABOVE ADDITION ON PROTECTIVE BASIS. 4. IT IS THEREFORE PRAYED THAT ADDITION MADE BY ASSESSING OFFICER & CONFIRMED BY COMMISSIONER OF INCOME - TAX(APPEALS) MAY KINDLY BE DELETED. 5. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUNDS EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. ITA NO370 / SRT /201 9 A.Y.2012 - 13 2 3 . THE BRIEF FACTS OF T HE CASE ARE THAT A SURVEY PROCEEDING WAS INITIATED AT THE PREMISES OF SHRI VASUDEV GOPLANI 203 - 204, LIBERTY CHAMBERS, TIMALIYAWAD , NANPURA, SURAT NUMBER OF DRAFT SATAKHAT WERE FOUND AND IMPOUNDED . ON VERIFICATION OF THE IMPOUNDED DOCUMENT, IT WAS NOTICED THAT THE SATAKHAT DATED SEPTEMBER, 2011 WAS EXECUTED BETWEEN SHRI KAMLESH MANUBHAI DHAMELIYA & SHRI MUKESHBHAI BHIKHABHAI DHAMELIYA AS PURCHASERS AND SMT. FATIMA MOHMED HAZAT AND SHRI ISHAQ MOHMD AS SELLERS FOR THE PLOT AT BALESHWAR, SURAT, REVENUE SURVEY NO.396, BLOCK NO.385 AREA ADMEASURING 21347 SQ. MTRS. THE TOTAL CONSIDERATION AGREED ON FOR PURCHASE OF THE LAND WAS RS.10,58,75,000/ - AND AN ADVANCE CASH OF RS.11,00,000/ - WAS PAID TO THE SELLER BY SHRI MUKESHBHAI BHIKHABHAI DHAMELIYA & SHRI KAMLESH MANUB HAI DHAMELIYA UP TO THE DATE OF SATAKHAT. THE PAYMENT SCHEDULE WAS ALSO MENTIONED IN THE SATAKHAT. ON THE BASIS OF INFORMATION RECEIVED FROM THE DDIT(INV.), SURAT . T HE NOTICE WAS ISSUED TO THE SELLER AS WELL AS PURCHASERS. THE FOLLOWING PERSON WERE FOUND I NVOLVED IN SATAKHAT.: - IT WAS FOUND THAT AN AMOUNT OF RS.9,85,75,000/ - OUT OF SALES CONSIDERATION OF RS.10,58,75,000/ - WAS PAI D IN CASH. AFTER CONDUCTING THE NECESSARY INQUIRY AND RECORDING THE STATEMENT OF RELEVANT PERSONS AN AMOUNT OF RS.4,92,87,500/ - (I.E. 50% OF THE TOTAL CASH PAYMENT OF RS.9,85,75,000/ - ) BEING 50% SHARE OF THE ASSESSEE WAS ADDED TO THE INCOME OF THE ASSESSEE. TOTAL INCOME OF THE ASSESSEE W AS ASSESSED TO THE TUNE OF RS.4,96,81,440/ - / - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. SR. NO. NAME OF THE PERSON SELLER/PURCHASER 1 KAMLESH MANUBHAI DHAMELIYA PURCHASER 2 MUKESHBHAI BHIKHABHAI DHAMELIYA PURCHASER 3 ISHAQ MOHMED HAZAT SELLER 4 ISMALL MOHMED HAZAT SELLER 5 FATIMA MOHMED HAZAT SELLER 6 AMINA MOHMED HAZAT SELLER 7 AHMED SAISEED MOHMED HAZAT SELLER 8 HAWABIBI MOHMED HAZAT SELLER 9 ZUKEBIBI MOHMED HAZAT SELLER 10 YUSUF MOHMED HAZAT SELLER ITA NO370 / SRT /201 9 A.Y.2012 - 13 3 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WIT HOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW , THEREFORE, IN THE SAID CIRCUMSTANCES, THE ORDER OF THE CIT(A) IN QUESTION IS WRONG AND AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. HOWEVER, ON THE OTHER HAND, THE LD . REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE ORDER OF THE CIT(A) DATED 07 . 0 6 .201 9 , WE NOTICED THAT THE CIT(A) DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE WITHOUT GIVING AN OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. IT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW. THEREFORE, IN THE SAID CIRCUMSTANCES, WE A RE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON ALL THE ISSUES AND RESTORED THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONO UN CE D IN THE OPEN COURT ON THIS 30 /09 /2019 SD/ - SD/ - ( O. P. MEENA ) (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER / SURAT, DATED : 30 /09/ 2019/VIJAY PAL SINGH , SR.PS COPY OF OR DER SENT TO - ASSESSEE/ AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT