Shri Rameshbhai Valjibhai Kothari, Ahmedabad V. The Income Tax Officer, Ward -4(2)4, Ahmedabad

ITA 550/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6692 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 03-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L MEENA
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Assessment record; Set aside
• Section: 250

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO. 550/AHD/2017 / ASSESSMENT YEAR: 2012-13 SHRI RAMESHBHAI VALJIBHAI KOTHARI A-2, PRASAM APARTMENT NR. KARMACHARINAGAR GHATLODIA AHMEDABAD 380 061. PAN : AFEPK 0738 A VS ITO, WARD-4(2)(4) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI MEHUL K. PATEL, DR REVENUE BY : SHRI B.L. MEENA, SR.DR / DATE OF HEARING : 02/05/2019 /DATE OF PRONOUNCEMENT : 07/05/2019 O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-4, AHMEDABAD DATED 1.12.2016 PASSED FOR T HE ASSTT.YEAR 2012- 13. 2. THOUGH THE ASSESSEE HAS TAKEN FOUR GROUNDS OF AP PEAL, BUT HIS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE VIZ. THE L D.CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE EX PARTE WITHOUT CONSIDERING THE ISSUES ON MERIT. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECO RD THAT THE LD.CIT(A) HAS GRANTED NINE OPPORTUNITIES TO THE ASSESSEE FOR PROSECUTING HIS APPEAL. THEREAFTER, THE LD.CIT(A) HAS REPRODUCED A SSESSMENT ORDER FROM ITA NO.550/AHD/2017 - 2 - PARA 4 IN PAGE NO.4 UPTO PAGE NO.13. DECISION OF T HE LD.CIT(A) IS IN PARAGRAPH-5 READS AS UNDER; DECISION : 5. THE GROUNDS OF APPEAL FILED BY THE APPELLANT AND THE ASSESSMENT ORDER HAVE BEEN CONSIDERED CAREFULLY. THE A.O. MADE THE F OLLOWING ADDITIONS TO THE RETURNED INCOME: SR. NO. PARTICULARS AMOUNT 1. UNDISCLOSED STCG FROM HANSPURA(1 2,394) RS.11,77,425/ - 2. UNDISCLOSED STCG HANSPURA(4,025) RS.2,21,436/ - 3. UNEXPLAINED INVESTMENT IN LAND AT MUTHIYA(1 4,751) RS.1,28,400/ - 4. UNEXPLAINED INVESTMENT IN LAND AT MUTHIYA(22,257) RS.1,10,000/ - 5. UNEXPLAINED CASH CREDIT BY THE WAY OF GIFT RS.20,73,417/ - 6. UNEXPLAINED CASH CREDIT BY THE CASH DEPOSIT IN BANK ACCOUNT RS.52,000/ - THE REASONS FOR MAKING THESE ADDITIONS HAVE BEEN CA REFULLY GONE THROUGH. THE A.O. HAS MENTIONED THE REASONS FOR MAKING THESE ADDITIONS IN DETAIL. THE APPELLANT WAS GIVEN SUFFICIENT OPPORTUNITY OF B EING HEARD. IN SPITE OF ALL THE OPPORTUNITIES GIVEN DURING THE ASSESSMENT P ROCEEDINGS AND THE APPELLATE PROCEEDINGS, THE APPELLANT COULD NOT SUBM IT ANY EXPLANATION AGAINST THE ADDITIONS MADE. IN SUCH SITUATION, THE ADDITIONS MADE BY THE A.O., AS MENTIONED ABOVE ARE CONFIRMED. THE APPEAL IS DISMISSED. 4. SUBSECTION (6) OF SECTION 250 OF THE ACT CONTEMP LATES THAT THE LD.CIT(A) SHALL STATE THE POINT OF DISPUTE AND THER EAFTER RECORD REASONS IN SUPPORT OF HIS CONCLUSION ON THOSE POINTS. A PERUS AL OF THE ABOVE ORDER WOULD INDICATE THAT THE LD.CIT(A) FAILED TO FOLLOW THE ABOVE MANDATE ITA NO.550/AHD/2017 - 3 - AND DISMISSED THE APPEAL IN SUMMARY MANNER. HOWEVE R, IT IS EQUALLY IMPORTANT TO NOTE THAT THE ASSESSEE DID NOT RESPOND TO THE NOTICES GIVEN BY THE LD.CIT(A) ON NINE OCCASIONS. IT SUGGEST CAR ELESS ATTITUDE AT THE END OF THE ASSESSEE. IF THIS CARELESS ATTITUDE IS BEING PITTED WITH PUNISHMENT IN THE SHAPE OF TAX LIABILITY ON THE ADD ITION CONFIRMED BY THE LD.CIT(A), THEN IT WOULD REVEAL THAT PUNISHMENT IS DISPROPORTIONATE TO THE NEGLIGENCE. THE LD.CIT(A) SHOULD HAVE CALLED F OR ASSESSMENT RECORD AND ALSO PERUSED THE EXPLANATION GIVEN BY THE ASSES SEE BEFORE THE AO INSTEAD OF VERBATIM REPRODUCING THE ASSESSMENT ORDE R IN THE IMPUGNED ORDER. CONSIDERING NEGLIGENCE OF THE ASSESSEE AND IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) SU BJECT TO PAYMENT OF COST OF RS.5,000/- (FIVE THOUSAND) BY THE ASSESSEE. THE LD.CIT(A) SHALL RE- ADJUDICATE ALL THE ISSUES AND THE ASSESSEE IS DIREC TED TO COOPERATE WITH THE CIT(A) BY SUBMITTING NECESSARY DETAILS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 7 TH MAY, 2019. SD/- (RAJPAL YADAV) JUDICIAL MEMBER