Sanjay Bhawani, Indore V. ITO-5(1), Indore

ITA 481/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8770 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 18-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R.P.MOURYA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Bogus
• Section: 154

Judgement Text

SMC SANJAY BHAWANI ITA NO.481 OF 2019 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO. 481/IND/2019 A.Y. 2015-16 SANJAY BHAWANI, INDORE PAN AGLPB 1722 F :: APPELLANT VS ITO-5(1), INDORE :: RESPONDENT ASSESSEE BY NONE (WRITTEN SUBMISSION) RESPONDENT BY SHRI R.P. MOURYA, SR. DR DATE OF HEARING 23.07.2020 DATE OF PRONOUNCEMENT 24.07.2020 O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. CIT(A)-II, INDORE, DATED 07.1.2019. THE SUM & SUBSTANCE OF THE GROUNDS OF APPEALS IS THAT THE ORDER PASSED BY THE LD. CIT(A) IS ERRONEOU S WITHOUT GIVING OPPORTUNITY OF BEING HEARD AND BY CONFIRMING THE ADDITION AT RS .17,10,425/- ON ACCOUNT OF LONG TERM CAPITAL GAIN. 2. FACTS, IN BRIEF, ARE THAT THE ASSESSEE FILED RET URN OF INCOME DECLARING INCOME AT RS.2,67,820/-. THE ASSESSING OFFICER FRAM ED THE ASSESSMENT AT RS.19,78,250/- BY MAKING ADDITIONS OF RS.17,10,425/ - HOLDING THAT THE TRANSACTION OF LONG TERM CAPITAL GAIN SHOWN BY THE ASSESSEE FROM SALE OF SHARES OF M/S. VISHVJYOTI TRADING LIMITED IS A FABR ICATED AND BOGUS SMC SANJAY BHAWANI ITA NO.481 OF 2019 2 TRANSACTION. ACCORDINGLY, THE ASSESSING OFFICER TRE ATED THE ENTIRE AMOUNT OF CAPITAL GAIN AS INCOME FROM UNDISCLOSED SOURCE OF T HE ASSESSEE. AGGRIEVED WITH THE ACTION OF THE ASSESSING OFFICER, THE ASSES SEE APPROACHED LD. CIT(A), WHO ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFI CER. THEREFORE, THE ASSESSEE IS BEFORE THIS TRIBUNAL. 3. NO ONE APPEARED ON BEHALF OF THE ASSESSEE, HOWEV ER, WRITTEN SUBMISSION HAS BEEN FILED WHEREIN IT IS CONTENDED T HAT THE LD. CIT(A) PASSED EXPARTE ORDER DESPITE THE FACT THAT THE ASSESSEE HA D FILED ADJOURNMENT APPLICATION BEFORE THE LD. CIT(A) STATING THAT APPE AL OF THE ASSESSEE CANNOT BE REPRESENTED AS ASSESSEES APPLICATION BEFORE THE AS SESSING OFFICER FOR OBTAINING DOCUMENTS SUCH AS, CERTIFIED COPIES OF OR DER SHEET AND STATEMENT RECORDED, ON THE BASIS OF WHICH, DISALLOWANCE OF TH E EXEMPTION OF LONG TERM CAPITAL GAIN HAS BEEN MADE BY THE ASSESSING OFFICER , IS PENDING. THESE DOCUMENTS WERE NEVER CONFRONTED TO THE ASSESSEE, TH EREFORE, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL WITHOUT PROVIDING SUFF ICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FURTHER, IT IS ALSO CONTENDE D THAT AN APPLICATION U/S 154 HAS BEEN FILED BEFORE THE LD. CIT(A) ON 01.5.2019 T O THIS EFFECT AND IS PENDING FOR DISPOSAL. ON THE OTHER HAND, LD. SR. DR RELIED ON THE ORDER OF THE LD. REVENUE AUTHORITIES BUT COULD NOT CONTROVERT THE SU BMISSION OF THE ASSESSEE THAT AFORESAID DOCUMENTS WERE NOT CONFRONTED TO THE ASSESSEE. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS OF LOWER AUTHORITIES. BEFORE ME, THE ASSESSEE HAS AGITATED T HAT THE DISALLOWANCE HAS BEEN MADE ON THE BASIS OF AFORESAID DOCUMENTS WHICH WERE NEVER CONFRONTED SMC SANJAY BHAWANI ITA NO.481 OF 2019 3 TO THE ASSESSEE. CONSIDERING THE FACTS AND CIRCUMST ANCES OF THE CASE, I AM OF THE VIEW THAT IN ORDER TO PROVIDE NATURAL JUSTICE, THE REQUISITE DOCUMENTS SHOULD HAVE BEEN PROVIDED TO THE ASSESSEE BY THE AS SESSING OFFICER SO AS TO ENABLE THE ASSESSEE TO CONFRONT THE SAME. BUT, THE LD. CIT(A) FAILED TO CONSIDER THE SAME. THEREFORE, THE MATTER REQUIRES R ECONSIDERATION AT THE LEVEL OF THE LD. CIT(A) AND THE LD. CIT(A) WOULD ALLOW TH E ASSESSEE TO OBTAIN THE AFORESAID DOCUMENTS FROM THE ASSESSING OFFICER AND THEREAFTER PASS THE ORDER AFRESH. ACCORDINGLY, THE ORDER OF LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF THE LD. CIT(A). THE LD . CIT(A) WOULD DECIDE THE GROUNDS OF APPEAL AFRESH IN TERMS AS INDICATED HERE INABOVE AFTER AFFORDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER L AW AND THE ASSESSEE IS ALSO DIRECTED TO COOPERATE/APPEAR BEFORE LD. CIT(A) IN THIS REGARD BY FURNISHING EVIDENCE, IF ANY. 5. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 24.7.2020 . SD/- (KUL BHARAT) JUDICIAL MEMBER DATED : 24.7.2020 ! VYAS ! COPY TO: APPELLANT/RESPONDENT/PR.CIT(A)/PR.CIT/DR, INDORE