Shri Jaysukh Dayalal Gajera, Upleta V. ITO ward 1(2)(5), Rajkot

ITA 384/RJT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0887 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-07-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 08-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR GUPTA
• Keywords: Reopening of assessment; Unexplained cash credit; Opportunity of being heard; Initiation of penalty proceedings; Reason to believe
• Section: 147; 68; 148; 271(1)(c); 143(3); 234B; 250; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No. 384/RJT/2023 (Assessment Year: 2011-12) (Hybrid Hearing) Jaysukh Dayalal Gajera, Prop. Of Vasu Poly Plast Dhami Oil Compound, Porbandar Road Upleta, Rajkot Vs. The ITO, Ward-1(2)(5), Rajkot èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AEZPG3536L (अपीलाथȸ/Appellant) (Ĥ×यथȸ/Respondent) Ǔनधा[ǐरतीकȧओरसे/Assessee by : Shri Kalpesh Doshi, AR राजèवकȧओरसे/Revenue by : Shri Dheeraj Kumar Gupta, Sr. DR स ु नवाईकȧतारȣख/ Date of Hearing : 09/07/2024 घोषणाकȧतारȣख/Date of Pronouncement : 19/07/2024 आदेश/ORDER PER DINESH MOHAN SINHA, JM: Captioned appeal filed by the Assessee for A.Y. 2011-12, is directed against the order passed by the National Faceless Appeal Centre, Delhi (in short ‘the NFAC, Delhi’), dated 18.09.2023 under section 250 of the Income Tax Act, 1961 (in short, ‘the Act’). I.T.A No. 384/Rjt/2023 A.Y. 2011-12 Shri Jaysukh Dayalal Gajera vs. ITO 2 2. The Grounds of appeal raised by the assessee are as follows: “1. That, the Ld. CIT(A) wrongly passed the order without granting sufficient opportunity of being heard. 2. That, the Ld. CIT(A) wrongly confirmed reopening of assessment u/s 147 of the I.T Act, 1961. 3. That, the Ld. CIT(A) has wrongly confirmed the addition of Rs. 21,03,724/- on account of unexplained cash credit u/s 68 of the I. T. Act, 1961. 4. That, the Ld. CIT(A) has wrongly confirmed initiation of penalty proceedings u/s. 274 r.w.s 271(1)(c) of the I.T. Act, 1961 5. That, the Ld. AO has wrongly confirmed levy of interest u/s 234A and 234B of the I.T. Act, 1961. 6. That, the findings of the Ld. CIT(A) and Ld. AO are not justified and are bad- in-law. The appellant craves to add, amend, alter or delete any of the above grounds of appeals.” 3. The assessee is an individual deriving income from partnership firm M/s. Dayalal Damji & Co. The order has been passed u/s 143(3) r.w.s. 147 of the I. T. Act, 1961 by determining the total income at Rs. 22,07,390/-. The assessment is reopened by way of issuing notice u/s 148 on 23/03/2018. The return has been filled in response to notice u/s 148 declaring total income of Rs.1,03,670/-. The Id AO has reopened the assessment without having any valid reason to believe and therefore the reopening of the assessment is bad-in-law. The Id. AO has made addition of Rs.21,03,724/- merely on the basis of cash deposits made in the bank account. The appellant has duly explained the source of cash deposits and also duly explained the cash credit availed of Rs.2 1,00,000/- from Shri Arjan Lakha Solanki for business purpose. However, the Ld. AO has wrongly treated such deposits as I.T.A No. 384/Rjt/2023 A.Y. 2011-12 Shri Jaysukh Dayalal Gajera vs. ITO 3 unexplained cash credits and made addition of Rs. 21,03,724/- u/s 68 of the I.T. Act. Therefore, the additions made by ld. AO are not justified and bad-in- law. The detailed submission along with the relevant documents will be submitted on the date of hearing. The assessing officer framed assessment as per undermentioned observation vide order dated 28-12-2018:- Subject to the above remarks, total income of the assessee for the year under: Return of Income Rs.1,03,670. Add: (i) Addition as discussed in para- 3 above Rs.21,03,724/- Total Assessed Income Rounded off.. Rs.22,07,394/- Rs.22,07,390/- 4. The assessee filed appeal before the ld. CIT(A). The ld. CIT( A) has issued four notices to the assessee. The appellant has not referred attending appellate proceedings and has not furnished any submission. The appeal is disposed off dismissing the ground nos. 1-6 of the appeal. 5. The appellant is now in appeal before us. The ld. A.R. has submitted that no notices served to the assessee that is why the I.T.A No. 384/Rjt/2023 A.Y. 2011-12 Shri Jaysukh Dayalal Gajera vs. ITO 4 assessee could not reply to the said notices. The assessee prayed for one more opportunity to submit the reply and documents before the ld. CIT(A). 6. The ld. D.R. of the Revenue submitted that four notices have been issued to the assessee but the assessee has not complied with the notices. No adjournment application has been filed and the ld. D.R. relied on the order of ld. CIT(A). 7. We have heard the matter and perused all the relevant materials available on record. We noticed that the notices have been issued but the order of the ld. CIT(A) dated 18-09-2023 is silent on the service of notices. We are of the view that one more opportunity be given to the assessee to present this case before ld. AO. Therefore, the matter is restored back to the file of AO to adjudicate the matter according to law after affording due opportunity of being heard to the assessee and after the reply submitted by the assessee society, if any. 7. In the result, the appeal of the assessee is treated to be allowed for statistical purposes. Order pronounced in the open court on 19-07-2024 Sd/- Sd/- (A. L. SAINI) (DINESH MOHAN SINHA) ACCOUNTANT MEMBER JUDICIAL MEMBER Rajkot I.T.A No. 384/Rjt/2023 A.Y. 2011-12 Shri Jaysukh Dayalal Gajera vs. ITO 5 Dated: 19/07/2024 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Rajkot 6. Guard file. By order/आदेश से, Assistant Registrar ITAT, Rajkot