M/s. Kamlesh Gandhi Infrastructure, Baroda V. The Dy.CIT, Circle-1(2), Vadodara

ITA 554/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6221 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 04-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CHANDRESH SHAH
• Keywords: Income from undisclosed sources; Principle of natural justice
• Section: 143(3)

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD .. , , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ! ' ./ I.T.A. NO.554/AHD/2016 ( / ASSESSMENT YEAR : 2012-13) M/S KAMLESH GANDHI INFRASTRUCTURE, 3&4, VADIK FLATS, OPP. PF OFFICE, AKOTA, VADODARA. / VS. THE DCIT, CIRCLE-1(2), VADODARA $ ./ %!&! ./ PAN/GIR NO. : AAKFK0103G ( ' $' / APPELLANT ) .. ( ($' / RESPONDENT ) ' $' ) / APPELLANT BY : SHRI CHANDRESH SHAH, A.R ($' * ) / RESPONDENT BY : SHRI V.K. SINGH, SR.DR + , * - / DATE OF HEARING 25/01/2018 ./0 * - / DATE OF PRONOUNCEMENT 29/01/2018 ! 1 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5, VADODARA [CIT(A) IN SHORT] DATED 30/12/2015 ARISING IN THE ASSESSMENT ORDER DATED 14.02.2015 PASSED UNDER SECTION 143(3) OF THE ACT RELEVANT TO ASSESSMENT YEAR 2012-13. ITA NO.554/AHD/ 2016 KAMLESH GANDHI INFRASTRUCTURE VS. DCIT,CIR-1(2) ASST.YEAR 2012-13 - 2 - 2. THE ASSESSEE BY WAY OF ITS GROUNDS OF APPEAL HAS ASSAILED THE ACTION OF THE CIT(A) IN DISMISSING THE APPEAL EX-PA RTE AND IN CONFIRMING ADDITION OF RS. 86,38,803/- ARISING IN ASSESSMENT P ROCEEDINGS PURSUANT TO SURVEY UNDER SECTION 133A. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE MR. CHANDRESH SHAH SUBMITTED AT THE OUTSET THAT THE CIT(A) HAS WRONGLY PASSED THE APPEL LATE ORDER EX-PARTE DISREGARDING THE WRITTEN SUBMISSIONS MADE BY THE AS SESSEE ON 28.12.2015 IN TRANSGRESSION PRINCIPLES OF NATURAL JUSTICE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE, ON THE OTHER HAND, VEHEMENTLY SUBMITTED THAT THE OBJECTION OF THE ASSESSEE IS NOT VALID AS IT FAILED TO APPEAR BEFORE THE CIT(A) AT I TS OWN PERIL IN SPITE OF SEVERAL OPPORTUNITIES GIVEN IN THIS REGARD. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS ON THE LIMITED ASPECT OF DISPOSAL OF APPEAL SUMMARILY BY WAY OF EX -PARTE ORDER. ON PERUSAL OF THE ASSESSMENT ORDER, WE NOTE THAT A SUR VEY PROCEEDINGS WERE CONDUCTED IN THE CASE OF THE ASSESSEE ON 18.10.2011 . PURSUANT TO SURVEY, A DECLARATION OF ABOUT RS. 8.50 CRORE AS UNACCOUNTE D INCOME WAS ALLEGEDLY DISCLOSED BY THE ASSESSEE. HOWEVER, THE A SSESSEE WHILE FILING THE RETURN OF INCOME, HAS ALLEGEDLY UNDERSTATED THE ALLEGED DISCLOSURE. ITA NO.554/AHD/ 2016 KAMLESH GANDHI INFRASTRUCTURE VS. DCIT,CIR-1(2) ASST.YEAR 2012-13 - 3 - CONSEQUENTLY ADDITIONS OF RS. 86,38,803/- TOWARDS D IFFERENTIAL FIGURE WAS MADE BY THE AO AS UNACCOUNTED INCOME. THE ASSESSEE APPARENTLY FAILED TO APPEAR BEFORE THE CIT(A) IN ITS APPEAL. THE CIT( A) HAS PROCEEDED TO DISPOSED OFF THE APPEAL EX-PARTE IN THE ABSENCE OF ANY REPRESENTATION FROM THE ASSESSEE. IN THE EX-PARTE DISPOSAL, THE CI T(A) SUMMARILY CONFIRMED THE AFORESAID DIFFERENCE IN THE DISCLOSUR E PEGGED AT RS. 86,38,803/-. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE BEFORE US CLAIMED THAT A CORRECT DISCLOSURE HAS BEEN MADE AFTER MAKING DEDUCTION TOWARDS EXPENDITURE ATTRIBUTABLE TO SUCH ALLEGED UNACCOUNTED INCOME. WITHOUT GOING INTO THE MERITS OF THE CASE, WE NOTE THAT THE CIT(A) HAS NOT RENDERED DECISION ON MERITS HAVING R EGARD TO THE WRITTEN SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE CIT(A) AND THE AO. 6. IN OUR VIEW, IT IS INCUMBENT UPON THE CIT(A) TO DEAL WITH THE GROUNDS ON MERITS AFTER GIVING REASONABLE OPPORTUNI TY TO THE ASSESSEE. NEEDLESS TO SAY, THE CIT(A) PLAY THE ROLE OF BOTH A DJUDICATING AUTHORITY AS WELL AS APPELLATE AUTHORITY. THUS, SUMMARY DISPO SAL BY CIT(A) EX- PARTE TOWARDS THE ISSUE RAISED BEFORE IT DO NOT ADV ANCE CAUSE OF JUSTICE HAVING REGARD TO THE FACTS AND CIRCUMSTANCE OF THE CASE. HOWEVER IN THE SAME VAIN, WE APPRECIATE THE CONCERN OF THE REVENUE ON LACKADAISICAL AND NON-COOPERATIVE ATTITUDE OF THE ASSESSEE TOWARD S THE APPELLATE PROCEEDINGS. ITA NO.554/AHD/ 2016 KAMLESH GANDHI INFRASTRUCTURE VS. DCIT,CIR-1(2) ASST.YEAR 2012-13 - 4 - 7. IN THE TOTALITY OF CIRCUMSTANCES, WE CONSIDER IT JUST AND EXPEDIENT TO RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A ) IN THE LARGER INTEREST OF JUSTICE WITH A VIEW TO UNABLE THE ASSESSEE TO AVAIL OPPORTUNITY ONCE MORE. NEEDLESS TO SAY, THE ASSESSEE SHALL FULLY COOPERATI VE WITH THE PROCEEDINGS BEFORE CIT(A) WITHOUT ANY DEMUR FAILING WHICH THE CIT(A) SHALL BE AT LIBERTY TO CONCLUDE THE APPELLATE PROCEEDINGS IN AC CORDANCE WITH LAW. HENCE, THE ORDER OF THE CIT(A) DATED 30.12.2015 IS SET ASIDE AND ALL THE ISSUES RAISED IN THE CAPTAINED APPEAL ARE RESTORED BACK TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LA W AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 29 / 01/2018 SD/- SD/- (.. ) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 29/01/2018