Shri Satyanarayan Madanlal Chandak, Aurangabad V. ITO, Ward 2(2), Aurangabad

ITA 420/PUN/2013

• Counselvise Citation: 42024514 RSA 2013
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Keywords: Unexplained investment; Salary income; Principle of natural justice
• Section: 143(3); 142(1); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 420 /PN/2013 ASSESSMENT YEAR : 2009 - 10 SHRI SATYANARAYAN MADANLAL CHANDAK SHARDANAD, OPP. TELEPHONE BHAVAN, AJABNAGAR, AURANGABAD VS. ITO, WARD - 2(2), AURANGABAD (APPELLANT) (RESPONDENT) PAN NO. ABAPC1600K APPELLANT BY: SHRI NARESH KUMAR RESPONDENT BY: SHRI P.L. PATHADE DATE OF HEARING : 22 - 10 - 2013 DATE OF PRONOUNC EMENT : 28 - 10 - 2013 ORDER P ER R.S. PADVEKAR , JM : - THIS APPEAL IS FIELD BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT(A), AURANGABAD DATED 27 - 11 - 2012 FOR THE A.Y. 2009 - 10. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN PASSING EXPARTE APPEAL ORDER FOR NON ATTENDANCE OF THE REPRESENTATIVE OF THE APPELLANT WITHOUT CONSIDERING THE LEGAL OBLIGATIONS CAST UPON HIM ENSHRINED IN S. 250 (6) OF THE ACT. EVEN EXPARTE ORDER IT MUST HAVE BEEN A 'SPEAKING ORDER' CONSIDERING THE MERITS OF THE CASE AND LEGAL POSITION. THE ORDER DESERVES TO BE SET ASIDE TO LD. CIT(A) FOR PASSING THE APPEAL ORDER IN ACCORDANCE WITH THE PROVISIONS OF LAW. 2) THE OT HER GROUNDS OF APPEAL RAISED BEFORE CIT(A) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT ORDER PASSED ON 30 - 12 - 2011 AND DISPATCHED IN POST ON 31 - 12 - 2011 IS BAD UNDER LAW SINCE THE SERVICE OF ORDER ON PERSON OR DISPATCH IN P OST SHOULD BE ON 30 - 12 - 2011 SINCE 31 - 12 - 2011 BEING SATURDAY AND TO COMPLETE THE ASSESSMENT AND SERVICE OR DISPATCH SHOULD BE ON OR BEFORE 30 - 12 - 2011. THEREFORE, THE ASSESSMENT BE QUASHED. 2 ITA NO. 420/PN/2013, SHRI SATYANARAYAN MADANLAL CHANDAK SHARDANAD, AURANGABAD 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT COMPLETED WITH ISSUE ON NOTICE U/S 142(1) ALONG WITH QUESTIONNAIRE AND NOT GIVING PROPER OPPORTUNITY IS BAD UNDER LAW. THEREFORE, THE ASSESSMENT BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT HAS TO BE COMPLETED ON OR BEFORE 31 - 03 - 2012 AS PER PROVISIONS OF SECTION 153(L)(B) AND WHEN THERE BEING TIME TO COMPLETE THE ASSESSMENT THE AO WAS NOT JUSTIFIED IN COMPLETING THE ASSESSMENT WITHOUT GIVING PROPER OPPORTUNITY AND COMPLETED THE ASSESSMENT. THEREFORE, THE ASSESSMENT BE QUASHED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ADDITION MADE U/S 69 ON ACCOUNT OF CASH DEPOSIT IN SAVING BANK ACCOUNT AS PER AIR DATA AT RS.30,80,000/ - AS UNEXPLAINED CASH DEPOSIT BE DELETED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ADDITION MADE WAS WITHOUT SATISFACTION RECORDED BY THE AO ON THE CONTRARY IN PURPORTING IT AS UNEXPLAINED CASH DEPOSIT IN SAVING ACCOUNT IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED BE DELETED. 6. ON THE F ACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ADDITION MADE U/S 69 TREATING AS UNEXPLAINED INVESTMENT IS BAD UNDER LAW. IF ANY ADDITION HAS TO BE MADE IT SHOULD BE U/S 69A AND THE AO HAS FAILED TO OBSERVE THE PROVISIONS OF INCOME TAX ACT, 1961. THEREFORE, THE ADDITION OF RS.30,80,000/ - BE DELETED. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. A.O. WAS NOT JUSTIFIED IN LEVYING INTEREST UNDER S. 234 - A/234 - B/234 - C OF THE ACT. THE LEVY BE QUASHED. 2. THE BRIEFLY STATED FACT S ARE AS UNDER. THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM SALARY AND DIVIDEND. THE ASSESSEE HAS FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS.3,65,704/ - . THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT HAS BEEN COMPLETED U/S. 143(3) OF THE INCOME - TAX ACT. THE ASSESSING OFFICER MADE THE ADDITION OF RS.30,80,000/ - TOWARDS UNEXPLAINED CASH DEPOSITS IN SAVING BANK ACCOUNT. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE THE LD. CIT(A). THE LD. CIT(A) DISPOSED OF THE APPEAL FILED BY THE ASSESSEE FOR WANT OF PROSECUTION. THE LD. CIT(A) HAS GIVEN DETAILS OF DATE OF HEARING IN PARA NO. 5 OF THE IMPUGNED ORDER . IN OUR OPINION, AS PER THE PROVISIONS OF SEC. 25 0(6) OF THE ACT , LD. CIT(A) SHOULD HAVE DECIDED THE 3 ITA NO. 420/PN/2013, SHRI SATYANARAYAN MADANLAL CHANDAK SHARDANAD, AURANGABAD APPEAL ON MERIT AND SHO ULD NOT HAVE MERELY DISMISSED THE SAME FOR THE WANT OF PROSECUTION. WE FIND THAT THE APPEAL HAS NOT BEEN DECIDED ON MERIT. 3. WE HAVE HEARD THE PARTIES. THE LEARNED COUNSEL PLEADED FOR SETTING ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO DECIDE T HE SAME AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE. THE LD. DR HAS NO OBJECTION. WE , ACCORDINGLY , SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE ENTIRE MATTER TO FILE OF THE LD. CIT(A) FOR SETTING ASIDE THE SAME ON MERIT AFTER GIVING AN OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE AS PER THE PRINCIPLES OF NATURAL JUSTICE. THE ASSESSEE IS ALSO DIRECTED TO CO - OPERATE LD. CIT(A) BY ATTENDING BEFORE HIM AFTER RECEIPT OF THE NOTICE. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 28 - 10 - 2013 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 28 TH OCTOBER, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTME NT 3 THE CIT(A), AURANGABAD 4 THE CIT, AURANGABAD 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE