Shri Harshadkumar M.Patel, Ahmedabad V. The Income tax Officer,Ward-3(4), Ahmedabad

ITA 482/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67868 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: P B SHAH
• Keywords: Principle of natural justice; Source of fund
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO.482/AHD/2013 A.Y. 2009-10 SHRI HARSHAD KUMAR M. PATEL, 2268, MALIWADS SECOND KANCHO, HALIM NI KHADKI, SHAHPUR, AHMEDABAD PAN: AGMPP7021Q VS INCOME TAX OFFICER, WARD 3(4), AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI O.P. BATHEJA, SR.D.R. , ASSESSEE(S) BY : SHRI P.B. SHAH, A.R. / DATE OF HEARING : 22/10/2013 / DATE OF PRONOUNCEMENT: 31/10/2013 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATING F ROM THE ORDER OF LEARNED CIT(A)-VI, AHMEDABAD, DATED 20.12.2012. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND AS PER LAW LEARNED CIT (A) ERRED IN SUSTAINING ADDITIONS OF (A) RS.15,23,6 47/- BEING NON OFFERING OF COMMUNICATION INCOME FOR TAXATION, (B) RS.26,28,700 /- BEING NON OFFERING OF STCG, BY THE APPELLANT, AT THE TIME OF SURVEY PROCE EDINGS . 2. THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN LAW BY NOT ADMITTING EVIDENCES AND EXPLANATIONS FURNISHED BY THE APPELLA NT WHICH COULD NOT BE FURNISHED AT THE TIME OF ASSESSMENT PROCEEDINGS. LEARNED CIT( A) WAS OUGHT TO HAVE CONSIDERED THE FACT THAT ASSESSMENT ORDER WAS PASSED EX-PARTY WITHOUT AFFORDING ADEQUATE OPPORTUNITY TO THE APPELLANT. HENCE, EVIDENCES AND EXPLANATIONS FURNISHED DURING THE APPELLANT PROCEEDINGS SHOULD HAVE BEEN ADMITTED BY THE CIT(A). 2. AT THE OUTSET, WE HAVE NOTED THAT THE ASSESSMENT WAS MADE U/S. 144 R.W.S. 143(3) OF IT ACT FOR A.Y. 2009-10, VIDE ORDE R DATED 22 ND OF ITA NO.482/ AHD/2013 SHRI HARSHAD KUMAR M. PATEL VS. ITO, AHMEDABAD. FOR A.Y. 2009-10 - 2 - DECEMBER, 2011. WE HAVE ALSO NOTED THAT NO ONE HAS APPEARED EVEN BEFORE LEARNED CIT(A). THEREFORE, THE CONDUCT OF TH E ASSESSEE CANNOT BE APPRECIATED. TODAY BEFORE US, THE ASSESSEE HAS SOUG HT AN ADJOURNMENT. ACCORDING TO US CONSIDERING THE PAST HISTORY A REPE ATED ADJOURNMENT SHALL NOT GOING TO SERVE ANY FRUITFUL PURPOSE. RATHER, WE ARE OF THE VIEW THAT IN A SITUATION WHEN THE REVENUE AUTHORITIES HAVE NOT A DJUDICATED THE MERITS OF THE CASE DUE TO NON CO-OPERATION OF THE ASSESSEE THEN THE NATURAL JUSTICE DEMANDS TO RESTORE THE MATTER SO THAT THE ASSESSEE CAN GET AN OPPORTUNITY TO EXPLAIN HIS CASE. SIDE BY SIDE, WE HAVE ALSO NOT ED THAT THIS ASSESSEE HAD NOT RESPONDED TO THE NOTICES OF THE REVENUE DEP ARTMENT. BECAUSE OF THIS CALLOUS BEHAVIOUR OF THE ASSESSEE, WE ARE INCL INED TO IMPOSE A COST ON HIM. IN THE COURT, WE HAVE EXPRESSED THIS VIEW AND AFTER CONSULTATION WITH LEARNED AR, WE HEREBY IMPOSE A COST OF RS.5,00 0/- TO BE PAID BY THE ASSESSEE AS PER LAW; AS A MARK OF DETERRENCE TO CUR B THE PRACTICE OF NON APPEARANCE BEFORE THE LOWER AUTHORITIES. 3. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THIS APPELLANT C AN BE GRANTED AN ANOTHER CHANCE TO REPRESENT HIS CASE. THEREFORE, WE HEREBY RESTORE THE ISSUE RAISED IN THE GROUNDS OF APPEAL BACK TO THE FILE OF AO TO BE DECIDED DE NOVO AS PER LAW. WE HEREBY GIVE DIRECTION TO THIS APPELLANT TO BE PR ESENT BEFORE AO WITHIN 30 DAYS ON RECEIPT OF THIS ORDER OF THE TRIBUNAL EITHE R IN PERSON OR THROUGH LEGAL REPRESENTATIVE WITHOUT WAITING FOR ANY NOTICE OF HE ARING FROM THE OFFICE OF AO SO THAT THIS CASE CAN BE DECIDED AT AN EARLY DATE. HOWEVER, AO IS AT LIBERTY TO TAKE PROPER LEGAL ACTION AS REQUIRED UNDER LAW FOR THE DISPOSAL OF THIS CASE. 4. THE ASSESS HAD FILED THE RETURN OF INCOME, HENCE , HE IS AWARE ABOUT THE SOURCES OF INCOME AS WELL AS THE CORRECTNESS OF THE SHORT TERM CAPITAL ITA NO.482/ AHD/2013 SHRI HARSHAD KUMAR M. PATEL VS. ITO, AHMEDABAD. FOR A.Y. 2009-10 - 3 - GAIN, INTEREST INCOME AND THE COMMISSION INCOME AS DECLARED IN THE SAID RETURN OF INCOME. THE ASSESSEE IS, THEREFORE, DIREC TED TO PLACE THE REQUISITE INFORMATION BEFORE THE AO WITHIN THE TIME NOW GRANTED BY US AND SHALL NOT ASK FOR ADJOURNMENT; UNLESS AND UNTIL THERE SHALL BE A COMPELLING PROBLEM. THE AO IS OTHERWISE AUTHORIZED TO COMPLETE THE ASSESSMENT AS PER LAW. 5. SINCE, THE MATTER HAS BEEN RESTORED BACK TO THE STAGE OF THE ASSESSMENT, THEREFORE, THE GROUNDS RAISED BY THE AS SESSEE MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSE ONLY; TO BE ADJUDICATED DE NOVO AS PER LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE ONLY. SD/- SD/- (N.S. SAINI) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 31/10/2013 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD