Shri Vijen G. Zaveri, V. The Income tax Officer,

ITA 4361/AHD/2003

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9118 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-02-2010
• Assessment Year: 1995-1996
• Appeal Filed On: 08-12-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Assessee Lawyers: DHARMESH DSHAH
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.4361/AHD/2003 ASSESSMENT YEAR:1995-96 DATE OF HEARING:1.2.10 DRAFTED:2.2.10 SHRI VIJEN G ZAVERI, OLD ADD: 10/1338, CHANDLA GALI, GOPIPURA, SURAT NEW ADD: 2/7, IRLA SADAN, SOCIETY ROAD, IRLA, VILE PARLE (W), MUMBAI PAN NO.ABCPP9199C V/S . INCOME TAX OFFICER, WARD-5(1), SURAT (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI DHARMESH DSHAH, AR RESPONDENT BY:- SHRI RAJEEV AGARWAL, CIT DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-IV, SURAT IN APPEAL NO.CAS/IV/ 96/03-04 DATED 28-08-2003. THE ASSESSMENT WAS FRAMED BY THE ITO, WARD-5(1), SU RAT U/S. 144 R.W.S 147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) FOR THE ASSESSMENT YEAR 1995-96 VIDE HIS ORDER DATED 27-03-2002. 2. AT THE OUTSET THE LD. CIT-DR OBJECTED FOR ASSESS EES PAPER BOOK FILED ON 29- 01-2010. AT THIS, THE LD. COUNSEL FOR ASSESSEE, SHR I DHARMESH. D SHAH FILED AN APPLICATION STATING THAT HE IS NOT RELYING ON THE P APER BOOK. THE RELEVANT TEXT OF THE APPLICATION READS AS UNDER:- ITA NO.4361/AHD/2003 A.Y. 1995-96 SH. VIJEN G ZAVERI V. ITO, WD-5(1), SURAT PAGE 2 ON BEHALF OF OUR ABOVEMENTIONED CLIENT AND AS PER THEIR INSTRUCTIONS, WE SUBMIT THAT THE PAPER BOOK FILED BEFORE YOUR HONOUR ON 29.1.2010 IS NOT BEING RELIED UPON BY US. ACCORDINGLY, THE ASSESSEES PAPER BOOK IS NOT CONSI DERED. 3. THE LD. COUNSEL FOR THE ASSESSEE, FIRST OF ALL, STARTED ARGUMENT ON THE RE- OPENING. THE LD. CIT-DR MADE PRELIMINARY OBJECTION TO THIS ISSUE AND SATED THAT THIS WAS NOT RAISED BEFORE CIT(A) AND EVEN NOW BEFO RE THE TRIBUNAL ALSO THE GROUND NO.1 IS REGARDING THE CONFIRMATION OF THE ACTION OF THE ASSESSING OFFICER IN COMPLETING THE EX PARTE ASSESSMENT AND NOT ON RE-OP ENING. THE RELEVANT GROUND NO.1 READS AS UNDER:- ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTI ON OF ASSESSING OFFICER IN COMPLETING AND PASSING ORDER U/S.144 R.W.S. 147 OF THE I.T. ACT. WE FIND FROM THE ARGUMENTS OF BOTH THE SIDES THAT T HE ISSUE OF RE-OPENING U/S.147 OF THE ACT HAS NOT BEEN RAISED NEITHER BEFORE THE CIT( A) NOR BEFORE THE TRIBUNAL. AT THIS, THE LD. COUNSEL FOR THE ASSESSEE FAIRLY SATED THAT HE IS NOT INTERESTED IN TAKING UP THIS ARGUMENT AS HE FAIRLY CONCEDED THAT NO SUCH GROUND WAS RAISED BEFORE CIT(A) AND EVEN NOW BEFORE TRIBUNAL. HE ALSO AGREE D THAT THERE IS NO CASE FOR RE- OPENING IN ASSESSEES FACTS. ACCORDINGLY, HE HAS N OT PURSUED THIS ISSUE. 4. COMING TO MERITS OF THE CASE, THE ASSESSEE HAS R AISED TWO ISSUES I.E. MAKING OF ADDITION OF UNEXPLAINED CASH CREDITS AND ALSO DI SALLOWANCE OF EXPENSES. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THA T THE ASSESSMENT WAS FRAMED EX PARTE U/S.144 OF THE ACT AND NO OPPORTUNITY WAS PRO VIDED BY THE ASSESSING OFFICER. EVEN THE CIT(A) HAS ALSO NOT PROVIDED THE OPPORTUNI TY AS THE APPELLATE ORDER IS NOT AT ALL A SPEAKING ORDER. ACCORDINGLY, HE URGED THE BEN CH THAT THE MATTER BE RESTORED BEFORE THE CIT(A) ON MERITS. HE FAIRLY CONCEDED TH AT HE WILL NOT RAISE THE LEGAL ISSUES. ON GOING THROUGH THE CASE RECORDS AND ON H EARING THE LD. CIT-DR WE FIND THAT NONE OF THE AUTHORITIES BELOW HAVE DECIDED THE ISSUES ON MERITS AND ALSO MADE ADDITION WITHOUT PROVIDING REASONABLE OPPORTUNITY O F BEING HEARD. KEEPING IN VIEW ITA NO.4361/AHD/2003 A.Y. 1995-96 SH. VIJEN G ZAVERI V. ITO, WD-5(1), SURAT PAGE 3 THE PRINCIPLES OF NATURAL JUSTICE IN MIND, WE SET A SIDE THE TWO ISSUES ON MERITS TO THE FILE OF THE CIT(A). ACCORDINGLY, THE CIT(A) AFTER TAKING A REMAND REPORT FROM THE ASSESSING OFFICER, WILL DECIDE AFTER PROVIDING REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 01/02/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED :01/02/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- IV, SURAT 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD