Shri Raj Dipakkumar Patel L/h of late Dipakkumar M.Patel, Ahmedabad V. The Income tax Officer,Ward-11(4), Ahmedabad

ITA 437/AHD/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2089 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 14-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Keywords: Additional evidence
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER LATE SRI DIPAKKUMAR M PATEL PROP. SAI MARKETING L/H. RAJ DIPAKKUMAR PATEL, K-309, GHANTAKARAN MARKET, NR. NEW CLOTH MARKET, AHMEDABAD PAN AGMPP7015N (APPELLANT) VS ITO WARD 11(4). AHMEDABAD (RESPONDENT) REVENUE BY: SRI RAHUL KUMAR, SR. D.R. ASSESSEE BY: SRI TUSHAR P. HEMANI. A .R. DATE OF HEARING : 12-04-2013 DATE OF PRONOUNCEMENT : 10-05-20 13 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-XVI, AHMEDABAD DATED 21 ST DECEMBER, 2012. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS:- ITA NO. 437/AHD/2013 ASSESSMENT YEAR 2007-08 I.T.A NO. 437/AHD/2013 A.Y. 2007-08 PAGE N O DIPAKKUMAR M. PATEL VS. ITO 2 1. THE APPELLANT HAD FILED THE RETURN OF INCOME DE CLARING TOTAL INCOME OF RS. 97,925/- FOR ASSESSMENT YEAR 2007-08 AND THE ASSESSMENT HAD BEEN FINALIZED ON THE TOTAL INCOME A T RS. 10,30,240/- BY MAKING TWO ADDITIONS VIZ RS. 8,06,314/- AS INCOM E FROM UNDISCLOSED SOURCES AND RS. 1,26,001/- (CREDIT ENTR IES OF RS. 1,25,911/- AND INTEREST OF RS. 90/~) ON ACCOUNT OF UNEXPLAINED CHEQUE DEPOSITED IN BANK AND BANK INTEREST. THE HON'BLE CI T{A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 10,30 , 240/- AND DISMISSED THE APPEAL. IT IS KINDLY PRAYED THAT THE ADDITION MAY BE DELETED. 2. THE APPELLANT HAD GOT ALL THE EVIDENCES OF THE C REDIT ENTRIES IN THE SAVING BANK ACCOUNT MAINTAINED IN STANDARD CHAR TERED BANK, AHMEDABAD. AT THE TRINE OF ASSESSMENT PROCEEDINGS, APPELLANT'S C.A SHRI GAUTAM MEHTA ATTENDED THE OFFICE OF THE LD. AS SESSING OFFICER AND SUBMITTED THE DETAILS. THEN, THE LD. ASSESSING OFFICER HAD ASKED SOME FURTHER INFORMATION. ON THE LAST DAY OF HEARIN G I.E. ON 16-12- 2009 THE APPELLANT WAS OUT OF STATION AND SO HE COU LD NOT HANDED OVER THE DETAILS TO HIS C.A AND SO THE LD ASSESSING OFFI CER HAD FINALIZED THE EX-PARTE ASSESSMENT U/S. 144 AND MADE THE ADDITION OF RS. 10 , 30,240/- AS STATED SUPRA. NOW, THE HON'BLE CIT(A), IN SECOND ROUND OF APPEAL, HAS ERRED IN LAW AND ON FACTS IN CONFORMING THE ADD ITION AND NOT APPRECIATING PROPERLY THE ADDITIONAL EVIDENCES AND DISMISSED THE APPEAL. 3. IN FIRST ROUND OF APPEAL, THE L/H OF THE APPELLA NT WAS SO SMALL (BECAME MAJOR RECENTLY) AND HE WAS UNDER THE DEPRES SION DUE TO SAD DEMISE OF HIS BELOVED FATHER (DIED ON 18-07-2010) A T THE RELEVANT TIME. HE COULD NOT ATTEND THE OFFICE OF THE HONBLE CIT(A ). HOWEVER, IN THE SECOND ROUND OF APPEAL ALL THE DETAILS WERE SUBMITT ED BEFORE THE HON'BLE CIT(A) EVEN THOUGH THE SAME HAS NOT BEEN PR OPERLY ENTERTAINED AND THE HON'BLE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 97,925/- FOR A.Y. 200 7-08. THE ASSESSING OFFICER VIDE ITS EX-PARTE ORDER DATED 18-12-2009 U/ S 143(3) R.W.S. 104 OF THE INCOME TAX ACT DETERMINED TOTAL INCOME AT RS. 10,30 ,240/- MAKING TWO I.T.A NO. 437/AHD/2013 A.Y. 2007-08 PAGE N O DIPAKKUMAR M. PATEL VS. ITO 3 ADDITIONS OF RS. 8,06,394/- AS INCOME FROM UNDISCLO SED SOURCE AND RS. 1,26,001/- ON ACCOUNT OF UNEXPLAINED CHEQUES DEPOSI TED IN BANK. THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) AGA INST THE ORDER OF A.O. WITH THE REQUEST TO ALLOW TO PLACE ADDITIONAL EVIDE NCES. FURTHER THE ASSESSEE WAS MET WITH SEVERE ACCIDENT AND DIED ON 18 TH JULY, 2010, DURING THE APPELLATE PROCEEDINGS, LD. CIT(A) DISMISSED THE APP EAL OF THE ASSESSEE VIDE ITS ORDER DATED 11-10-2010. HONBLE ITAT VIDE ITS ORDER DATED 03-06-2011 SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORED THE MATTER BACK TO THE FILE LD. CIT(A) FOR ALLOWING THE ASSESSEE TO SUBSTITUTE THE LEGAL HEIR. BEFORE LD. CIT(A) ASSESSEES SUBMISSION WAS THAT THE ADDITIONA L EVIDENCE NOW BEING PRODUCED BEFORE HIM COULD NOT BE PRODUCED BEFORE A. O. AS ON THE LAST DATE OF HEARING I.E. 16-12-2009 ASSESSEE COULD NOT ATTEN D THE OFFICE AS HE WAS OUT OF STATION. HOWEVER THIS ADDITIONAL EVIDENCE WAS H ANDED OVER TO HIS AUTHORIZED REPRESENTATIVE WHO WENT TO THE ASSESSING OFFICER THE VERY NEXT DAY I.E. 17-12-2009 BUT ASSESSING OFFICER REFUSED TO AC CEPT THE SAME AND VERY NEXT DAY I.E. 18-12-2009 FINALIZED THE ASSESSMENT E X-PARTE. THEREFORE, THE PRAYER OF THE ASSESSEE BEFORE LD. CIT(A) WAS THAT A DDITIONAL EVIDENCE MAY KINDLY BE ACCEPTED AND AFTER TAKING INTO CONSIDERAT ION THESE ADDITIONAL EVIDENCE OF ASSESSEE THE CASE MAY BE DECIDED ON MER ITS. HOWEVER THIS REQUEST OF ASSESSEE WAS NOT ACCEPTABLE TO THE LD. C IT(A) AND HE DISMISSED THE APPEAL OF THE ASSESSEE. 3. AT THE TIME OF HEARING BEFORE US, AT THE OUTSET LEARNED COUNSEL OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE LD. CIT(A) AND PRAYED THAT THE LD. CIT(A) MAY KINDLY BE DIRECTED TO ADMIT THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE BEFORE HIM AND DECIDE THE ISSUE ON MERITS. LD. D.R. DID NOT OBJECT TO THIS PRAYER OF THE ASSESSEE THEREFORE THE MATTER IS I.T.A NO. 437/AHD/2013 A.Y. 2007-08 PAGE N O DIPAKKUMAR M. PATEL VS. ITO 4 RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH A DJUDICATION AFTER ADMITTING THE ADDITIONAL EVIDENCE AND PROVIDING ADEQUATE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. 4. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATIS TICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (A.MOHAN ALANKAMONY) ( D.K.TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED10/05/2013 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#