Prakash B.Dhebar, Baroda V. The Income tax Officer,Ward-2(3), Baroda

ITA 4501/AHD/2007

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9739 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-08-2010
• Assessment Year: 1994-1995
• Appeal Filed On: 24-12-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHUBNESH KULSHRESTHA
• Assessee Lawyers: J P SHAH
• Keywords: Unexplained cash credit; Unexplained investment; Opportunity of being heard; Principle of natural justice; Right to appeal; Set aside
• Section: 271(1)(c); 143(3); 68; 69

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI, JM AND D.C.AGRAWAL, A M SHRI PRAKASH B. DHEBAR, 802/803 ANGAN TOWNERS, MAKAPURA, VADODARA. VS. INCOME-TAX OFFICER, WARD 2(3), BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI J. P. SHAH, AR RESPONDENT BY:- SHRI BHUBNESH KULSHRESTHA, DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST LE VY OF PENALTY UNDER SECTION 271(1)(C) BY RAISING FOLLOWING GROUND:- (1) THE LD. COMMISSIONER OF INCOME-TAX OFFICER HAS ERRE D IN LAW AND ON FACTS IN CONFIRMING THE PENALTY OF RS.60,68, 000/- UNDER SECTION 271(1)(C) OF THE IT ACT FOR THE ALLEGED CON CEALMENT AND/OR FURNISHING OF INACCURATE PARTICULARS OF INCO ME IN RESPECT OF VARIOUS ADDITIONS MADE WHILE COMPLETING ASSESSME NT UNDER SECTION 143(3) OF THE ACT. 2. AT THE OUTSET THE LD. AR FOR THE ASSESSEE POINTE D OUT THAT IN THE APPEAL FILED ON QUANTUM ADDITION, THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE ISS UE ON MERITS. IN ITA NO.2021/AHD/2001 FOR ASST. YEAR 1994-95 THE TRIBUNA L HAD MADE THE FOLLOWING OBSERVATIONS WHILE SETTING ASIDE THE CASE :- 6. AFTER HEARING THE LD. REPRESENTATIVES OF BOTH T HE PARTIES WE FIND THAT THE CIT(A) HAS DECIDED THE APPEAL OF THE ASSES SEE EX-PARTE. AFTER ITA NO.4501/AHD/2007 ASST. YEAR :1994-95 2 GOING THROUGH THE IMPUGNED ORDER IT IS CLEAR THAT T HE CIT(A) HAS NOT PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN OUR OPINION, THE CIT(A) SHO ULD HAVE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY, AIR (1979) ORISSA 69, THE HON. ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIV E OF THE LANGUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY BEING HEARD BEFORE DECIDING THE APPEAL. THUS, CONSI DERING THE ENTIRE FACTS OF THE CASE, WE THINK IT PROPER TO SET ASIDE THE OR DER OF THE CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEAL AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFOR DING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. ON THIS BASIS LD. AR SUBMITTED THAT THE ISSUE OF PE NALTY SHOULD BE CONSIDERED AFRESH AFTER THE DECISION BY THE A.O. ON QUANTUM ADDITIONS. 3. THE LD. DR ON THE OTHER HAND, RELIED ON THE ORDE RS OF AUTHORITIES BELOW. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE REST ORE THE APPEAL TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME AFTER HIS DECISION ON QUANTUM ADDITION. ONE POINT THAT EMERGED DURING THE COURSE OF DISCUSSION WAS THAT THE TRIBUNAL HAS NOT CONSIDERED ALL THE GROUND S WHILE DISPOSING OF THE APPEAL OF ASSESSEE. IN THE GROUNDS OF APPEAL FILED ALONG WITH FORM NO.36 IN QUANTUM APPEAL, THE ASSESSEE HAD RAISED 9 GROUND S WHEREAS IN THE ORDER OF THE TRIBUNAL IN ITA NO.2021/AHD/2001 DECIDED ON 10.7.2009 HAS REFERRED TO ONLY FIVE GROUNDS. HOWEVER, ON PERUSAL OF PARA 6 AS REPRODUCED ABOVE, WE NOTICE THAT THE ORDER OF CIT(A ) HAS BEEN SET ASIDE IN TOTO WHICH WOULD INCLUDE GROUNDS NOT CONSIDERED BY THE TRIBUNAL WHILE ADJUDICATING THE GROUNDS TAKEN BY THE ASSESS EE. THESE FOUR GROUNDS NOT QUOTED BY THE TRIBUNAL WERE AS UNDER :- 3 6. THE HON.CIT(A) III, BARODA HAS ERRED IN LAW AN D IN FACTS IN UPHOLDING THE LD. AOS ORDER IN MAKING AN ADDITION OF RS.1,22,000/- AS UNEXPLAINED DEPOSITS AND ADDED TO THE APPELLANTS TOTAL INCOME AS ALLEGED UNEXPLAINED CASH CREDITS U/ S 68. THE ADDITION OF RS.1,22,000/- SO CONFIRMED BEING ERRONE OUS IN FACTS AND IN LAW DESERVES DELETION. 7. THE HON.CIT(A)-III, BARODA HAS ERRED IN LAW & IN FACTS IN UPHOLDING THE DECISION OF THE LD. AO IN MAKING AN A DDITION OF RS.44,26,420/- AS UNEXPLAINED INVESTMENT U/S 69 REP RESENTING THE TRANSACTION OF SUPREME FINSTOCK LTD., WHICH IS ALLE GED TO BE APPELLANTS OWN TRANSACTION. THE ADDITION OF RS.44, 26,420/- SO CONFIRMED BEING ERRONEOUS IN FACTS AND IN LAW DESER VES DELETION. 8. THE HON. CIT(A)-III, BARODA HAS ERRED IN LAW & I N FACTS IN UPHOLDING THE DECISION OF THE LD. AO IN CONFIRMING THE ADDITION OF DEPOSITS RECEIVED OF RS.87,21,348/- AS ALLEGED UNEX PLAINED CREDITS U/S 68 OF THE ACT. THE ADDITION OF RS.87,21,348/- S O CONFIRMED BEING ERRONEOUS IN FACTS AND IN LAW DESERES DELETIO N. 9. YOUR APPELLANT CRAVES LIBERTY TO ADD, ALTER, DEL ETE OR SUBSTITUTE TO ANY OF THE GROUNDS OF APPEAL HEREIN ABOVE CONTAINED . IN OUR CONSIDERED VIEW NOT QUOTING ABOVE FOUR GROUN DS WILL NOT MAKE ANY DIFFERENCE SO FAR AS THIS APPEAL IS CONCERNED. THE ASSESSEE MAY PREFER A MISCELLANEOUS APPLICATION IN QUANTUM APPEAL AND SEE K TO RESTORE THE APPEAL ON THESE FOUR GROUNDS TO THE FILE OF LD. CIT (A). BUT IN ANY CASE SINCE QUANTUM APPEAL HAS BEEN RESTORED IN TOTO TO THE FILE OF LD. CIT(A), IT IS NOT CONSIDERED PROPER TO DECIDE THE APPEAL IN RESPECT OF PENALTY WHICH IS PENDING BEFORE US IN PIECE MEAL, FIRST IN RESPECT OF LEVY OF PENALTY ON QUANTUM COVERED IN FIVE GROUNDS AND THEN TO DISPOSE OF PENALTY APPEAL IN RESPECT OF QUANTUM ADDITION COVER ED IN FOUR GROUNDS NOT ORIGINALLY DISPOSED OF BY THE TRIBUNAL. LET THE QU ANTUM APPEAL BE DECIDED BY LD. CIT(A) AND THEREAFTER HE SHOULD CONS IDER THE DISPOSAL OF APPEAL ON PENALTY ISSUE. 4 5. WITH THE ABOVE OBSERVATIONS WE RESTORE THIS APPE AL TO THE FILE OF LD. C.I.T.(A). 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 17/9/10. SD/- SD/- (BHAVNESH SAINI) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD, DATED : 17/9/10. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 19/8/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S . 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..