Sai Shukun Developers Pvt Ltd., Surat V. Income Tax Officer, Ward 2(1)(2), Surat

ITA 415/SRT/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1658 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Section: 143(3); 142(1); 143(2); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO.415/SRT/2018 (AY 2008-09) (H EARING IN VIRTUAL COURT) SAI SHUKAN DEVELOPERS PVT. LTD. M-85, SOMESHWAR ENCLAVE, B/H SOUTH GUJARAT UNIVERSITY, UDHANA MAGDALLA ROAD, SURAT 395007. PAN : AAJCS1350B V S THE ITO, WARD- 2(1)(2) AAYAKAR BHAVAN, MAJURAGATE, SURAT-395001. ASSESSEE/ APPELLANT REVENUE/RESPONDENT ASSESSEE BY NONE REVENUE BY MS. ANUPAMA SINGLA SR.DR DATE OF HEARING 24.06 .2021 DATE OF PRONOUNCEMENT 24.06.2021 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, HEREINAFTER REFERRED AS LD. CIT(A) SURAT DATED 24.08.2017 FOR THE ASSESSMENT YEARS (AY) 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: [1] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A)-2, SURAT ERRED IN DISMISSING THE APPEAL BY PASSING EX-PARTY ORDER WITHOUT CONSIDERING THE FACTS OF THE CASE. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AS WELL AS LAW ON THE SUBJECT, THE REOPENING OF THE CASE BY ISSUING NOTICE U/S.148 FOR A.Y.2008-09 IS BAD IN LAW AND WITHOUT JURISDICTION. [3] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AS WELL AS LAW ON THE SUBJECT, THE LEARNED INCOME TAX OFFICER, WARD-2(1)(2), SURAT ERRED IN ITA NO. 415 SRT 2018 SAI SHUKAN DEVELOPERS PVT. LTD. 2 MAKING ADDITION OF RS.15,00,000/TREATING IT AS BOGUS UNSECURED LOAN OBTAINED FROM ALKA DIAMONDS PVT. LTD. (RS.10,00,000/-) AND NAKSHTRA BUSINESS PVT. LTD. (RS.5,00,000/-) WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS BUILDER AND DEVELOPER FILED HIS RETURN OF INCOME WHICH WAS ACCEPTED UNDER SECTION 143(1). THE ASSESSING OFFICER RECEIVED INFORMATION THAT THE ASSESSEE RECEIVED UNSECURED LOAN FROM ALKA DIAMONDS OF RS. 15 LAKHS AND RS. 10 LAKHS FROM NAKSHTRA BUSSINESS PRIVATE LIMITED. BOTH THE LENDER COMPANY ARE MANAGED BY P.K JAIN WHO IS ENGAGED IN PROVIDING BOGUS ENTRY. THEREFORE, THE ASSESSING OFFICER AFTER RECORDING THE REASONS FOR REOPENING, SERVED NOTICE UNDER SECTION 148 DATED 17.03.2015. IN RESPONSE TO THE NOTICE UNDER SECTION 148, THE ASSESSEE FILED LETTER DATED 06.01.2015 BEFORE THE AO AND PRAYED THAT ORIGINAL RETURN OF INCOME MAY BE TREATED AS RETURN IN RESPONSE TO THE NOTICE UNDER SECTION 148. THE ASSESSING OFFICER AFTER SERVING NOTICE UNDER SECTION 143(2) AND 142(1) DATED 18.02.2016 PROCEEDED FOR ASSESSMENT. THE ASSESSING OFFICER COMPLETED ASSESSMENT ON 28.03.2016 UNDER SECTION 143(3) READ WITH SECTION 147 AND MADE ADDITIONS OF RS. 15,00,0007- ON ACCOUNT OF UNACCOUNTED MONEY. 3. ON APPEAL BEFORE THE ID.CIT(A), THE ACTION OF AO WAS UPHELD. FURTHER AGGRIEVED, THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE THIS TRIBUNAL. 4. PERUSAL OF IMPUGNED ORDER REVEALS THAT APPEAL OF THE ASSESSEE DISMISSED BY ID.CIT(A) AS UNADMITTED DUE TO NON-COMPLIANCE OF NOTICE, BY TAKING VIEW THAT ITA NO. 415 SRT 2018 SAI SHUKAN DEVELOPERS PVT. LTD. 3 ASSESSEE IS NOT INTERESTED IN PERUSING HIS APPEAL. THE ID CIT(A) NOT ADJUDICATED THE ISSUE ON MERIT, RATHER DISMISSED DUE TO NON-COMPLIANCE OF NOTICES. NONE APPEARED ON BEHALF OF THE ASSESSEE. THUS, WE DECIDED TO HEAR THE SUBMISSIONS OF ID. DR FOR THE REVENUE AND ADJUDICATE THE APPEAL ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. 5. THE ID. SR. DR FOR THE REVENUE SUBMITS THAT THE ASSESSEE WAS GIVEN THREE OPPORTUNITY AS RECORDED IN PARA 5.1.1 OF THE ORDER PASSED BY THE ID. CIT(A). THE ASSESSEE FAILED TO COMPLY WITH THE NOTICE ISSUED BY THE ID.CIT(A). THE ID. CIT(A) LEFT WITH NO OPTION, EXCEPT TO PROCEED TO DECIDE THE ISSUE AND IN ABSENCE OF ANY EVIDENCE OR EXPLANATION AFFIRM THE ACTION OF AO. IN ALTERNATIVE SUBMISSION, THE ID. SR. DR FOR THE REVENUE SUBMITS THAT IN CASE THE HON'BLE TRIBUNAL IS DEEM APPROPRIATE, THE ASSESSEE BE DIRECTED TO BE VIGILANT AND NOT TO DEFAULT IN ATTENDING THE PROCEEDINGS AND TO WASTE THE TIME OF PUBLIC AUTHORITIES/ID. CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF ID. DR FOR THE REVENUE AND HAVE GONE THROUGH THE ORDERS OF LOWER AUTHORITIES. WE FIND THAT THE ID. CIT(A) FIXED THE HEARING ON THREE OCCASIONS. THE ASSESSEE NEITHER APPEARED NOR FILED ANY ADJOURNMENT APPLICATION ON ALL OCCASIONS. THE ID CIT(A) RECORDED THAT HE ISSUED FINAL SHOW CAUSE NOTICE FOR 24.08.2017. IT IS RECORDED BY ID. CIT(A) THAT NO COMPLIANCE WAS MADE BY THE ASSESSEE. HOWEVER, FIND THAT THE ID ITA NO. 415 SRT 2018 SAI SHUKAN DEVELOPERS PVT. LTD. 4 CIT(A) HAS NOT RECORDED IF THE NOTICE WAS DULY SERVED ON THE ASSESSEE OR NOT. WE INSTEAD OF GOING INTO CONTROVERSY, WHETHER THE ASSESSEE DEFAULTED IN ATTENDING THE PROCEEDINGS DESPITE SERVICE OF NOTICE OR NOT, BEFORE THE LD.CIT(A). WE FIND THAT THE ORDER OF THE ID.CIT(A) IS NOT IN ACCORDANCE WITH MANDATE OF SECTION 250(6) OF THE INCOME TAX ACT. SECTION 250(6) OF THE ACT MANDATES THAT THE LD. CIT(A) WHILE DECIDING THE APPEAL IS REQUIRED TO PASS ORDER ON POINTS OF DETERMINATION (GROUNDS OF APPEALS), DECISION THEREIN ON AND REASONS FOR SUCH DECISION. 7. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF THE ID.CIT(A) TO DECIDE ALL THE GROUNDS OF APPEAL ON MERIT IN ACCORDANCE WITH LAW. NEEDLESS TO ORDER THAT BEFORE PASSING THE ORDER THE ID. CIT(A) SHALL GRANT FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE ID.CIT(A) AS AND WHEN THE DATE OF HEARING AND TO PROVIDE ALL NECESSARY EVIDENCE AND INFORMATION WITHOUT ANY FURTHER DELAY AND NOT TO SEEK THE ADJOURNMENT WITHOUT ANY VALID REASONS. ACCORDINGLY THE GROUNDS OF APPEAL BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. ORDER ANNOUNCED ON 24 TH JUNE, 2021 BY PLACING RESULT ON NOTICE BOARD. 10. SD/- SD SD/- /-S SD/- ( DR ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 24/06/2021 /SK, PS ITA NO. 415 SRT 2018 SAI SHUKAN DEVELOPERS PVT. LTD. 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE TRUE COPY/ BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, ITAT, SURAT