M/s. Shivani Construction, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(3), Veraval

ITA 47/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0117 (ITAT-RAJKOT)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-07-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: D R ADHAI
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 142(1); 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA, JM AND SHRI A. K.GARODIA, AM ITA NO. 47/RJT/2012. / ASSESSMENT YEARS 2005 - 2006 M/S SHIVANI CONSTRUCTION, OPP, INDIAN RAYON CO., JUNAGAD ROAD, VERAVAL. PAN : ABBFS0334D ( / APPELLANT) VS. THE INCOME TAX OFFICER WARD 12(3)_, VERAVAL. / RESPONDENT / ASSESSEE BY SHRI D R ADHAI. # / REVENUE BY SHRI AVINASH KUMAR & / DATE OF HEARING 31.7.2012 & / DATE OF PRONOUNCEMENT 03.8.2012 / / / / ORDER PER T. K. SHARMA, JM THIS APPEAL BY THE ASSESSEE IS AGAINST THE EX-PARTE OR DER DATED 16.8.2011 PASSED THE LD.CIT(A) FOR THE ASSESSMENT YEAR 2005-06 ON THE GROUND THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORD ER WITHOUT GIVING THE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND CON FIRMING THE ADDITION MADE BY THE AO U/S 144 OF THE ACT. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM IS ENGAGED IN THE BUSINESS OF ROAD CONSTRUCTION WORK OF AS PHALT AND CEMENT ROAD CONSTRUCTION. FOR THE YEAR UNDER CONSIDERAT ION, THE ASSESSEE FILED RETURN DECLARING TOTAL INCOME AT RS.4,65,810/-. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) WAS ISSUED TO TH E ASSESSEE. ITA NO. 47/RJT/2012. 2 THE ASSESSEE FAILED TO COMPLY WITH THIS NOTICE AND HENCE ANOTHER NOTICE U/S 142(1) WAS ISSUED TO THE ASSESSEE, BUT THE ASSESSEE AGAIN FAILED TO COMPLY WITH THIS NOTICE ALSO. THEREFORE, THE AO FRAMED THE ASSESSMENT U/S 144 OF THE ACT ON 17.12.2007 AT TOTAL INCOME OF RS.2 2,12,107/-. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ACTION OF THE A O ON THE GROUND THAT THERE IS NO MERIT IN THE GROUNDS OF APPEAL. 3. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSE SSEE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US, THE LD. AR OF THE ASSESSEE APPEARED AND POINTED OUT THAT THE NOTICE OF HEARING SENT BY THE LD. CIT(A) IS RECEIVED BACK BY HIM UNSERVED. THIS HAS BEEN MENTIONED BY THE LD. CIT(A) IN PARAGRAPH 2 OF HIS ORDER. THE LD. AR FOR THE ASSESSEE SUBMIT THAT THE ASSESSEE IS NOW IN A POSITION TO SUBMIT AND PROD UCE THE BOOKS OF ACCOUNT AND VARIOUS DETAILS TO COMPLETE THE ASSESSMENT, THER EFORE, IN THE INTERESTS OF JUSTICE ONE MORE OPPORTUNITY BE GIVEN TO THE ASSESSEE BEFORE REMANDING THE CASE TO THE FILE OF THE AO. 5. SHRI AVINASH KUMAR, LD.DR STRONGLY OBJECTED TO THE SUBMISSIONS AND PRAYER MADE BY THE LD. AR FOR THE ASSESSEE. HE SUBM ITTED THAT AS PER THE ORDERS OF THE AUTHORITIES BELOW ADEQUATE OPPO RTUNITY TO PRODUCE DOCUMENTS AND SUBMISSIONS OF THE ASSESSEE HAVE ALREADY BEEN GIVEN TO THE ASSESSEE BUT THE ASSESSEE DID NOT FURNISHED THE SAME. THE AO WAS HAVING NO OPTION BUT TO ASSESS THE INCOME U/S 144. HE SUBMITTED THAT BEFORE THE LD. CIT(A) ALSO, THE ASSESSEE DID NOT APPEAR , THEREFORE, THE APPEAL OF THE ASSESSEE BE DISMISSED. ITA NO. 47/RJT/2012. 3 6. HAVING HEARD BOTH THE SIDES AND ON PERUSAL OF THE RECORD WE FIND THAT IN THE IMPUGNED ASSESSMENT ORDER, THE AO ESTIMATED THE BUSINESS PROFIT AT THE RATE OF 5% OF TOTAL TURNOVER AND ALSO MADE THE ADITION OF RS. 12,00,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT . LOOKING TO NATURE AND THE FACTS THAT THE NOTICE ISSUED BY THE CIT(A) IS RETURNED BY THE POSTAL AUTHORITY AS UNSERVED, WE ARE OF THE CONSIDERED OPINIO N THAT IF THE ASSESSEE WOULD BE GRANTED ONE MORE OPPORTUNITY TO PRODU CE BOOKS OF ACCOUNTS AND HEARING NO PREJUDICE WOULD BE CAUSED TO THE REVENUE. THEREFORE, IN THE INTERESTS OF JUSTICE, WE SET ASIDE TH E ORDER OF THE LD. CIT(A) AND RESTORE BOTH THE ADDITIONS TO THE FILE OF THE AO WITH A DIRECTION TO THE ASSESSEE THAT THE ASSESSEE WILL FURNISH THE NECESSARY DETAILS WHICH WERE CALLED BY THE AO AND ALSO PRODUCE THE BOOKS OF ACCOUNT. THE AO WILL EXAMINE THE SAME AND RE-COMPUTE THE INCOME OF THE ASSESSEE AFRESH AND IN ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DI RECTED TO CO- OPERATE WITH THE AO IN SPEEDY DISPOSAL OF THE ASSESSMENT O RDER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLO WED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD/- SD/- ( A. K.GARODIA) ( T. K. SHARMA) # / ACCOUNTANT MEMBER # /JUDICIAL MEMBER +/ ORDER DATE 03-08-2012. /RAJKOT ITA NO. 47/RJT/2012. 4 SRL - - - - .- .- .- .- / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-, 2. / RESPONDENT- 3. 4 / CONCERNED CIT. 4. 4- / CIT (A). 5. - , , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.