Smt. Sadhana Subhash Dhole, Akola V. Income Tax Officer,Ward-1, Akola

ITA 57/NAG/2011

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3080 (ITAT-NAGPUR)
• Duration Of Justice: 8 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 24-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: H WANARE
• Assessee Lawyers: S B HAJARE
• Section: 143(3); 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR E-BENCH, NAGPUR (THROUGH VIDEO CONFERENCE AT MUMBAI) . . , . / BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER / AND , . . SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 57/NAG/2011 / ASSESSMENT YEAR 2003-04 SMT. SADHANA SUBHASH DHOLE, C/O. S.B. HAJARE & CO., CHARTERED ACCOUNTANTS, 678, HAJARE HOUSE, KARNEWAR MARG, SITABULDI, NAGPUR PAN: AHDPD 6217 E VS. INCOME TAX OFFICER WARD-1, AKOLA. ( / APPELLANT ) ( / RESPONDENT ) APPELLANT BY : SHRI S.B. HAJARE RESPONDENT BY : SHRI H. WANARE ! '#$ / DATE OF HEARING : 18-12-2012 %& ! '#$ / DATE OF PRONOUNCEMENT : 18-12-2012 '( / O R D E R PER RAJENDRA, AM THIS APPEAL IS FILED AGAINST THE ORDER DT. 03-11-20 10 OF THE CIT(A)-I, NAGPUR, APPELLANT HAS RAISED THE FOLLOWING GROUNDS OF APPEA L: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, FAILED TO APPRECIATE THE FA CT HAT THE OMITTED GROUNDS OF APPEAL WAS EXTENSIVELY NARRATED IN THE STATEMENT OF FACTS, AS SUCH FORMING ESSENTIAL PART OF THE GROUND OF APPEAL. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, NAG PUR WAS NOT JUSTIFIED IN APPRECIATING THE APPLICATION U/S. 154(1A) R.W. SEC. 250(5) R.W. SEC. 251(1)( C ) WITH EXPLANATION RELATING TO THE ADDITION OF RS. 1, 65,000/- AS NARRATED IN DETAIL VIDE PARA 9 OF STATEMENT OF FACTS FORMING PART OF A PPEAL. ITA NO. 57/NAG/2011 SMT. SADHANA SUBHASH DHOLE 2 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-1 FAIL ED TO APPRECIATE THE STATEMENT OF FACTS AND WRITTEN SUBMISSIONS AND ARGU MENT PLEADED DURING THE HEARING OF APPEAL RELATING TO THE ADDITION OF RS. 1 ,65,000/- U/S. 69 AS DISCUSSED BY AO VIDE PARA 18 TO 20 RELATING TO DEPOSIT IN S.B. A /C. NO. 14 WITH GNSPS. 4. WITHOUT PREJUDICE TO ABOVE GROUNDS, ON THE FACTS AN D CIRCUMSTANCES OF THE CASE, THE LD. INCOME TAX OFFICER, WARD-1, AKOLA, WAS NOT JUSTIFIED IN MAKING THE ADDITION OF RS. 1,65,000/- U/S. 69 VIDE PARA 18 TO 20 RELATING TO DEPOSIT IN S.B. A/C NO. 14 WITH GNSPS WHICH IS IMPROPER, ILLEGAL, H IGH AND ARBITRARY. 2. APPELLANT-ASSESSEE, AN INDIVIDUAL, FILED HER RETURN OF INCOME ON 18-06-2004 DECLARING A TOTAL INCOME OF RS. 77,910/-. A NOTIC E U/S. 148 OF THE INCOME TAX ACT, 1961 (ACT) WAS ISSUED TO THE ASSESSEE BY THE ASSESS ING OFFICER (AO) ON 24-12-2008. HE FINALISED THE ASSESSMENT U/S. 143(3) R.W.S. 147 OF THE ACT ON 30-03-2009 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 4.82 LAKHS. AO MADE FIVE ADDITIONS; INCLUDING AN ADDITION OF RS. 1.65 LAKHS RELATING TO DEPOSIT IN ONE OF THE CREDIT SOCIETIES; TO THE INCOME RETURNED BY THE ASS ESSEE. CHALLENGING THE ORDER OF THE AO, ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST A PPELLATE AUTHORITY (FAA). WHILE FILING THE GROUNDS OF APPEALS IN THE FORM NO. 35, A SSESSEE DID NOT RAISE THE GROUND OF APPEAL ABOUT ADDITION OF RS. 1.65 LAKHS, WHERE AS I N THE STATEMENT OF FACTS FILED BY HER, ISSUE OF ADDITION OF RS. 1.65 LAKHS WAS RAISED IN PARA NO. 9. WHILE DECIDING THE APPEAL, FAA DID NOT ADJUDICATE UPON THE ISSUE OF AD DITION AMOUNTING TO RS. 1.65 LAKS. ASSESSEE FILED AN APPLICATION U/S. 154 OF TH E ACT RAISING THE ISSUE OF THE SAID ADDITION. 2.1 FAA VIDE HIS ORDER DT. 03-11-2010 REJECTED THE APP LICATION FILED BY THE ASSESSEE HOLDING THAT THERE WAS NO MISTAKE OF THE F ACTS OR LAW ARISING OUT OF THE ORIGINAL ORDER PASSED ON 29-01-2010. ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE SAID ORDER OF THE FAA. 3. BEFORE US, IT WAS SUBMITTED BY THE AUTHORISED REPR ESENTATIVE (AR) THAT IN THE STATEMENT OF FACTS VIDE PARA NO. 9, ISSUE OF ADDITI ON OF RS. 1.65 LAKHS WAS RAISED BEFORE THE FAA, THAT APPELLANT COMMITTED A MISTAKE OF OMISSION OF NOT INCORPORATING THE GROUND OF ADDITION IN THE GROUNDS OF APPEAL, TH AT STATEMENT OF FACTS WAS AN INTEGRAL PART OF THE GROUNDS OF APPEAL, THAT OMISSI ON OF GROUNDS OF APPEAL WAS A HUMAN ERROR, THAT THE GROUND WAS EXPRESSLY CHALLENG ED IN THE APPEAL AND ARGUED DURING THE COURSE OF HEARING, THAT THE ISSUE OF THE SAID ADDITION WAS EXPRESSLY EXPLAINED IN THE WRITTEN SUBMISSIONS AND GIST OF AR GUMENT DT. 4 TH SEPT 2009, THAT DURING THE APPELLATE PROCEEDINGS, APPELLANT HAD EXP LAINED THE ABOVE DEPOSITS FROM THE PASS BOOK, SUPPORTING CASH BOOK, BALANCE SHEET, FUN DS FLOW STATEMENTS. AR RELIED UPON THE CASES OF JUTE CORPORATION OF INDIA LTD., VS. CIT AND ANOTHER (SUP REME COURT) [187 ITR 688]; CIT VS. GOKULDASS AND CO (RAJ . HC) [253 ITR 633]; MANJUSHREE PLANTATIONS LTD., VS. CIT (MADRAS HC) [1 31 ITR 307]; CIT VS. PLASTIC DELA FOOT WEAR (RAJ HC) [203 ITR 759]; UGAR SUGAR W ORKS LTD., VS. CIT, POONA (BOMBAY HC) [141 ITR 326]; CIT VS. NELLIAPPAN (66 I TR 722 (SC)]; AMHEDABAD ELECTRICITY CO. LTD., VS. CIT [199 ITR 413 (BOM)(FB )] AND NATIONAL THERMAL POWER CORPORATION VS. CIT [229 ITR 383 (SC)]. HE REQUESTED THAT MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE FAA FOR DECIDING THE ISSUE ON MERITS. ITA NO. 57/NAG/2011 SMT. SADHANA SUBHASH DHOLE 3 DEPARTMENTAL REPRESENTATIVE (DR) SUBMITTED THAT THE RE WAS NO MISTAKE APPARENT FROM THE RECORD, THAT SUBSEQUENT ORDER OF THE FAA SHOULD BE UPHELD. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. IT IS A FACT THAT ASSESSEE DID NOT CHALLEN GE THE ADDITION OF RS. 1.65 LAKHS IN THE GROUNDS OF APPEAL. FROM THE STATEMENT OF FACTS FIL ED BEFORE THE FAA, IT IS CLEAR THAT ISSUE WAS EXPRESSLY CHALLENGED BEFORE HIM. WE HAVE PERUSED THE SUBMISSIONS MADE BEFORE THE FAA DURING THE APPELLATE PROCEEDINGS. T HE ASSESSEE HAD MADE A LENGTHY SUBMISSION WITH REGARD TO ADDITION OF RS. 1.65 LAKH S. IN THESE CIRCUMSTANCES, IN OUR OPINION, FAA SHOULD HAVE DECIDED THE ISSUE ON MERIT S. SO, IN THE INTEREST OF JUSTICE, WE RESTORE BACK THE ISSUE OF ADDITION OF RS. 1.65 L AKHS, MADE BY THE AO, TO THE FILE OF THE FAA WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. AS A RESULT, APPEAL FILED BY THE ASSESSEE STANDS P ARTLY ALLOWED. ORDER PRONOUNCED BY E-BENCH AT MUMBAI ON THIS 18 TH DAY OF DECEMBER, 2012. SD/- SD/- ( . . / R.K. GUPTA ) ( / RAJENDRA ) ') / JUDICIAL MEMBER $ ') / ACCOUNTANT MEMBER *+ MUMBAI, ,' DATE: 18 TH DECEMBER, 2012 TNMM COPY TO: 1. APP EL LANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR, ITAT, NAGPUR 6. GUARD FILE -' ' //TRUE COPY// BY ORDER, ASST. REGISTRAR, ITAT