Kalas Shivajirao Shirole, Pune V. ITO wd- 3 [2] Pune., Pune

ITA 584/PUN/2012

• Counselvise Citation: 58424514 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 20-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K SRINIVASAN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER, AND SHRI R.S.PADVEKAR, JUDICIAL MEMBER. ITA.NO.584/PN/2012 (ASSTT. YEAR : 2008-09) SHRI KAILAS SHIVAJIRAO SHIROLE, 1099, MODEL COLONY, SHIVAJI NAGAR, PUNE 411016. .. APPELLANT PAN: ADHPS1502P VS. ITO, WARD-3(2), PUNE. .. RESPONDENT ASSESSEE BY : SHRI K.SRINIVASAN DEPARTMENT BY : SHRI ACHAL SHARMA DATE OF HEARING : 16.04.2013 DATE OF PRONOUNCEMENT : 26.04.2013 ORDER PER R.S.PADVEKAR, JM : IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMP UGNED ORDER OF THE CIT(A)-II, PUNE, DATED 02.12.2011 FOR THE A. Y. 2008-09. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APP EAL: 1. THE LEARNED CIT(A)-II ERRED IN CONFIRMING THE ADDIT ION OF RS.43,54,000/- MADE BY THE LEARNED AO IN HIS ASSESS MENT ORDER PASSED U/S.144 R.W.S. 143(3) OF THE INCOME TA X ACT, 1961. THE APPELLANT THEREFORE PRAYS YOUR HONOR TO KINDLY GIVE SUITABLE DIRECTION TO THE LEARNED AO IN THIS REGARD FOR GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELL ANT. 2. THE GRIEVANCE OF THE ASSESSEE IS THAT REASONABLE OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE. THE FACTS WHICH ARE REVEALED FROM THE RECORD ARE AS UNDER. THE ASSESSEE FILED THE RE TURN OF INCOME DECLARING THE TOTAL INCOME OF RS.2,82,378/- FOR THE A.Y. 2008-09. 2 THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY BY IS SUING THE NOTICE U/S.143(2) OF THE ACT. THE ASSESSEE HAS DECLARED T HE INCOME FROM HOUSE PROPERTY. THE ASSESSING OFFICER HAS NOTED TH AT AS PER AIR INFORMATION IN THE CASE OF THE ASSESSEE, IT WAS NOT ICED THAT THE ASSESSEE HAS DEPOSITED RS.43,54,400/- IN HIS SAVING S ACCOUNT WITH MAHESH SAHAKARI BANK, LAXMI ROAD, PUNE. THE ASSESS ING OFFICER ISSUED THE NOTICE TO THE ASSESSEE TO EXPLAIN THE SO URCE OF CASH DEPOSIT. AS NOTED BY THE ASSESSING OFFICER, NO DET AILS HAVE BEEN FILED BY THE ASSESSEE. HE THEREFORE TREATED THE EN TIRE DEPOSITS OF RS.43,54,000/- AS INCOME FROM UNEXPLAINED SOURCES A ND MADE THE ADDITION AND ACCORDINGLY PASSED VERY HIGH PITCHED A SSESSMENT TO THE EXTENT OF RS.46,36,378/-. THE ASSESSEE FILED A PPEAL BEFORE THE LD. CIT(A) RAISING THE GRIEVANCE THAT ASSESSING OFF ICER ERRED IN PASSING EX PARTE ORDER U/S.144 OF THE ACT WITHOUT G IVING REASONABLE OPPORTUNITY AND THERE WAS DENIAL OF NATURAL JUSTICE . THE CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 3. WE FIND THAT THE ASSESSEE PLEADED BEFORE THE CIT (A) THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN PASSING THE EX PARTE ASSESSMENT AS THE ASSESSEE HAS INFORMED THE ASSESSI NG OFFICER THAT HE WAS UNABLE TO ATTEND THE HEARING DUE TO HIS ILL HEALTH AND HE WAS UNDERGOING MEDICAL TREATMENT. IT WAS FURTHER PLEAD ED THAT THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER AS ASSESSEE WAS PREVENTED FROM REPRESENTING HIS CASE AND THERE WAS GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. THE CIT(A) H AS DISCUSSED HOW THE NOTICES WERE SENT TO THE ASSESSEE, ETC., BUT IS SILENT IN RESPECT OF THE MEDICAL CERTIFICATE FILED BY THE ASSESSEE. THE CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE CONFIRMING THE ACT ION OF THE ASSESSING OFFICER FOR DECIDING THE ASSESSMENT EX PA RE U/S.144 OF THE ACT. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW, MORE PARTICULARLY THE IMPUGNED O RDER. SO FAR AS THE ASSESSMENT ORDER IS CONCERNED, THE ASSESSING OF FICER MADE THE BLANK ADDITION AND MADE HIGH PITCHED ASSESSMENT. T HE CIT(A) HAS 3 DISCUSSED WHY THE ASSESSING OFFICER WAS FORCED TO P ASS THE EX PARTE ORDER. IN OUR OPINION, THE SIMPLE PRAYER OF THE AS SESSEE WAS TO RESTORE THE MATTER TO THE ASSESSING OFFICER. INSTE AD OF ACCEPTING THE SAID PRAYER CONSIDERING THE REASONS GIVEN BY THE AS SESSEE THAT ON THE MEDICAL GROUND HE COULD NOT ATTEND BEFORE THE A SSESSING OFFICER, BUT DISMISSED THE ASSESSEES APPEAL. ANOT HER ASPECT WE FIND THAT AS OBSERVED BY THE ASSESSING OFFICER IN T HE ASSESSMENT ORDER ITSELF, ASSESSEE DERIVES INCOME FROM HOUSE PR OPERTY. UNDER THIS SITUATION IN OUR OPINION, THE ASSESSEE NEEDS T O HAVE BEEN GIVEN REASONABLE OPPORTUNITY TO REPRESENT HIS CASE AND TO EXPLAIN THE SOURCE OF DEPOSIT IN MAHESH SAHAKARI BANK. WE ACCO RDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTE R BACK TO THE FILE OF THE ASSESSING OFFICER TO FRAME THE ASSESSMENT DE NOVO AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD AS PER THE PRINCIPLES OF NATURAL JUSTICE AND NOT TO PASS THE ORDER IN UNDUE HASTE. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 26 TH DAY OF APRIL, 2013. SD/- SD/- ( G.S.PANNU ) ( R.S.PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 26 TH APRIL, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ITO, WARD-3(2), PUNE. 3. THE CIT(A)-II, PUNE. 4. THE CIT-II, PUNE. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.