Shri Keyur N. Panchani, L/R. of late Shri Narendra G. Panchani, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-5(2), RAJKOT-GUJARAT

ITA 490/RJT/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5198 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 11-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: USHA N SHROTE SR D R
• Assessee Lawyers: MJ RANPURA
• Keywords: Opportunity of being heard; Initiation of penalty proceedings
• Section: 234B; 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT LOZJH LOZJH LOZJH LOZJH OLHE OLHE OLHE OLHE VGEN VGEN VGEN VGEN] YS[KK LNL; , ] YS[KK LNL; , ] YS[KK LNL; , ] YS[KK LNL; ,OA OAOA OA EK/ EK/EK/ EK/KQFERK KQFERK KQFERK KQFERK JKW; JKW;JKW; JKW;] U; ] U;] U; ] U;KF KFKF KF;D LNL; DS LE{KA ;D LNL; DS LE{KA ;D LNL; DS LE{KA ;D LNL; DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO.490/RJT/2014 ( / ASSESSMENT YEAR : 2006-07) SHRI KEYUR N. PANCHANI (IN THE REPRESENTATIVE CAPACITY OF LATE SHRI NARENDRA G. PANCHANI) C/O. SHILPA PROCESS, OPP: MEHTA PETROL PUMP, DHEBAR ROAD, RAJKOT 360 001 / VS. INCOME TAX OFFICE, WARD 5(2), RAJKOT, AAYAKAR BHAVAN, RACE COURSE RING ROAD, RAJKOT 360 001. ./ ./ PAN/GIR NO. : ACGPP 8380 E ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M. J. RANPURA, A.R ! / RESPONDENT BY : SMT. USHA N. SHROTE, SR.D.R. ' #$ % ! & / DATE OF HEARING 03/07/2018 '( ! & / DATE OF PRONOUNCEMENT 13/07/2018 )* / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-IV, RAJKOT [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- IV/0166/2008-09 DATED 11.06.2014 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961 ( HERE-IN-AFTER ITA NO.490/RJT/2014 SHRI KEYUR N. PANCHANI VS. ITO ASST.YEAR 2006-07 - 2 - REFERRED TO AS 'THE ACT') DATED 26.12.2008 RELEVAN T TO ASSESSMENT YEAR (AY) 2006-07. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE TOTAL ADDITION OF RS.551840/- MADE B Y THE ASSESSING OFFICER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.441304/- AS UNACCOUNT ED STOCK U/S.69 OF THE INCOME TAX ACT, 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.110539/- AS UNEXPLAIN ED DEFICIT IN CASH U/S. 69 OF THE INCOME TAX ACT, 1961. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT DISCUSSING GROUNDS OF APPEAL RAISED BY THE APPELLAN T AND NOT RECORDING THEIR INDEPENDENT FINDING ON THE GROUNDS OF APPEAL RAISED BY THE APPELLANT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING THE APPEAL ORDER BY JUST NARRATING AND REPEATING TH E ORDER OF THE ASSESSING OFFICE AND THUS BY PASSING NON-SPEAKING O RDER. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE CHARGING OF INTEREST U/S. 234A, 234B , 234C AND 234D OF THE INCOME TAX ACT, 1961, WHEN DEMAND OF IN COME TAX ITSELF IS NOT SUSTAINABLE. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING INITIATION OF PENALTY PROCEEDINGS U/S. 2 71(1) (C) OF THE INCOME TAX ACT, 1961, WHEN DEMAND OF INCOME TAX ITS ELF IS NOT SUSTAINABLE. ITA NO.490/RJT/2014 SHRI KEYUR N. PANCHANI VS. ITO ASST.YEAR 2006-07 - 3 - YOUR HONOUR'S APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR WITHDRAW ANY ONE OR MORE GROUNDS OF APPEAL ON/OR BE FORE HEARING OF APPEAL. 3. AT THE OUTSET, IT WAS OBSERVED THAT THE LD. CIT( A) DECIDED THE APPEAL EX PARTE VIDE ORDER DATED 11.06.2014 DUE TO NON-APPEARANCE OF THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A) ASSESSEE FILED AN APPEAL BEFORE US PRAYED TO RESTORE THE MATTER TO THE FILE OF LD. CIT(A) FOR FRESH ADJU DICATION IN ACCORDANCE WITH THE LAW. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ALSO FILED THE AFFIDAVIT OF THE LEGAL REPRESENTATIVE OF THE ASSESSEE AS REPR ODUCED BELOW: I, THE UNDERSIGNED, SMT. SHOBHANABEN NARENDRABHAI PANCHANI, WIFE OF LATE SHRI NARENDRA GOKALBHAI PANCHANI AND MOTHER OF LATE SHRI KEYURBHAI NARENDRABHAI PANCHANI HINDU ADULT, RESIDING AT 'KEYUR', SARASWATI SOCIETY-2, NIRMALA ROAD, RAJKOT, SOLEMNLY AFFIRMS AND STATE AS UNDER: 1.0 THAT SHRI KEYURBHAI NARENDRABHAI PANCHANI (DECEASED) [L/R OF LATE SHRI NARENDA G. PANCHANI] WAS MY SON, DIED ON 08.03.2017. 2.0 THAT THE DECEASED HAVE LEFT BEHIND ME AS AN ONLY LE GAL HEIR AND APART FROM ME THE DECEASED DID NOT HAVE ANY OTHER L EGAL HEIRS. 3.0 THAT INCOME TAX APPELLANT PROCEEDINGS / INCOME TAX RELATED PROCEEDINGS WERE PENDING AGAINST THE DECEASED IN TH E CAPACITY OF LEGAL HEIR OF LATE SHRI NARENDRABHAI GOKALBHAI P ANCHANI AT THE TIME OF HIS DEMISE. 5.0 THAT AFTER THE DEATH OF MY SON LATE SHRI KEYURB HAI NARENDRABHAI PANCHANI, I AM AN ONLY LEGAL HEIR OF H IM TO CARRY OUT NECESSARY FORMALITIES RELATED TO THE PENDING IN COME TAX MATTERS INCLUDING FILING AN APPEAL, APPOINTING TAX CONSULTANT / CHARTERED ACCOUNTANT, SIGNING AN APPEAL / OTHER DOC UMENTS, APPEARING BEFORE ANY INCOME TAX AUTHORITY OR APPELL ATE ITA NO.490/RJT/2014 SHRI KEYUR N. PANCHANI VS. ITO ASST.YEAR 2006-07 - 4 - AUTHORITY, GIVE ANY STATEMENT ON OATH ETC. ON BEHAL F OF THE DECEASED. 5.0 THAT I WILL BE WHOLLY AND FULLY RESPONSIBL E FOR ALL THE ACTS DONE IN THE CAPACITY OF A LEGAL HEIR OF THE DECEASED AND OU TCOME ARRIVES FROM SUCH ACTS WILL LEGALLY BINDING TO ME. I DECLARE ON OATH THAT, WHATEVER STATED AS ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. ON THE OTHER HAND THE LD. DR DID NOT OBJECT IF THE MATTER IS REMANDED TO THE LD. CIT(A) FOR FRESH ADJUDICATION AS PER THE PR OVISION OF LAW. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON PERUSAL OF APPELLATE ORDER, WE FIND T HAT LD. CIT(A) AFFIRMED THE ACTION OF ASSESSING OFFICER EX PARTE WITHOUT MENTIONING ANY REASON FOR CONFIRMING THE SAME ON MERITS. THE PROVI SIONS OF SECTION 250(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OFF THE APPEAL IN WRITING WITH REASONING. 4.1 WE ALSO NOTE THAT THE PRESENT CASE IS REPRESENT ED BY THE LEGAL REPRESENTATIVE OF THE ASSESSEE. THUS, IN SUCH CIRCU MSTANCES, WE FIND IN THE INTEREST OF JUSTICE AND FAIR PLAY THAT LD. CIT( A) SHOULD HAVE GIVEN ANOTHER OPPORTUNITY TO THE ASSESSEE TO APPEAR BEFOR E HIM TO EXPLAIN HIS POINTS OF CONTENTIONS. THEREFORE, IN THIS VIEW OF T HE MATTER, WE ARE INCLINED TO REMIT THE MATTER BACK TO THE FILE OF LD . CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE RAISED BY THE ASSESSE E ON MERIT AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. IT IS NEEDLESS TO ITA NO.490/RJT/2014 SHRI KEYUR N. PANCHANI VS. ITO ASST.YEAR 2006-07 - 5 - SAY THAT THE ASSESSEE SHOULD CO-OPERATE IN THE APPE LLATE PROCEEDING AND ATTEND THE HEARING AS AND WHEN REQUIRED BY LD. CIT( A). HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS ALLOWED FOR STAT ISTICAL PURPOSE. 5. IN THE RESULT, FOR STATISTICAL PURPOSE, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/07/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 13/07/2018 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. + & ' ,& / CONCERNED CIT 4. ' ,& ( ) / THE CIT(A)- IV, RAJKOT. 5. -$. / 0&0# , , /DR,ITAT, RAJKOT 6. / 12 3 % / GUARD FILE. / BY ORDER, -& 0& //TRUE COPY// / ! '#$ ( DY./ASSTT.REGISTRAR) ! $%! & , / ITAT, RAJKOT