Ajit Sripati Ghosale, Pune V. Income-tax Officer,

ITA 600/PUN/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1148 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 04-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR CHAWARE
• Assessee Lawyers: K SRINIVASAN
• Keywords: Business income; Additional evidence
• Section: 143(3); 54B; 54

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 599 /PN/201 6 / ASSESSM ENT YEAR : 20 0 7 - 08 SHRI SANTOSH SRIPATI GHOSALE, GARWA BUNGALOW, NEAR HILLVIEW RESIDENCY, MUMBAI - BANGALORE HIGHWAY, S.NO.112/1/1, WARJE - MALWADI, PUNE 411045 . / APPELLANT PAN: ADLPG0868L VS. THE INCOME TAX OFFICER, THE INCOME TAX OFFICER, WARD 3( 4 ) , PUNE . / RESPONDENT . / ITA NO. 600 /PN/201 6 / ASSESSMENT YEAR : 20 07 - 08 SHRI AJIT SRIPATI GHOSALE, GARWA BUNGALOW, NEAR HILLVIEW RESIDENCY, MUMBAI - BANGALORE HIGHWAY, S.NO.112/1/1, WARJE - MALWADI, PUNE 411045 . / APPELLANT PAN: AHTPG2103N VS. THE INCOME TAX OFFICER, WARD 3(4), PUNE . / RESPONDENT ITA NO S . 599 TO 60 1 /PN/20 1 6 SANTOSH SRIPATI GHOSALE & ORS 2 . / ITA NO. 601 /PN/201 6 / ASSESSMENT YEAR : 20 07 - 08 SHRI RADHABAI SRIPATI GHOSALE, GARWA BUNGALOW, N EAR HILLVIEW RESIDENCY, MUMBAI - BANGALORE HIGHWAY, S.NO.112/1/1, WARJE - MALWADI, PUNE 411045 . / APPELLANT PAN: A LRPG7049M VS. THE INCOME TAX OFFICER, WARD 3(4), PUNE . / RESPONDENT / APPELLANT BY : SHRI K. SRINIVASAN / RESPONDENT BY : SHRI ANIL KUMAR CHAWARE / / / DATE OF HEARING : 08 . 0 8 .201 6 / DATE OF PRONOUNCEMENT: 08 . 0 8 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH I S BUNCH OF APPEAL S FI LED BY RELATED ASSESSEE S ARE AGAINST SEPARATE ORDER S OF CIT (A) - 3 , PUNE , ALL DATED 2 3 . 12 .20 1 5 RELATING TO SAME ASSESSMENT YEAR 20 0 7 - 0 8 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 14 3(3) R.W.S. 147 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) , RESPECT IVELY . 2 . T HE CAPTIONED APPEALS RELATING TO DIFFERENT ASSESSEE S ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR ITA NO S . 599 TO 60 1 /PN/20 1 6 SANTOSH SRIPATI GHOSALE & ORS 3 THE SAKE OF CONVENIENCE. HOWEVER, REFERENCE IS BEING MADE TO THE FACTS IN ITA NO. 599 /PN/201 6 TO ADJUDICATE THE ISSUE. 3. THE ASSESSEE IN ITA NO. 599 /PN/201 6 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT(A) HAS ERRED BY NOT EXTENDING THE PROPER OPPORTUNITY TO THE APPELLANT. IN THE APPELLATE ORDER NAME OF ONE CA SUMIT GHODKE IS STATE D AS APPEARED ON BEHALF OF THE APPELLANT. THE APPELLANT HAS NEVER AUTHORIZED SUCH A PERSON AND AS SUCH NO SUBMISSION OR REPRESENTATION WAS MADE IN THE APPEAL PROCEEDINGS AT ALL. THEREFORE, IT IS PRAYED TO SET ASIDE THE CASE TO THE FILE OF CIT(APPEALS), P UNE. 2. ON THE FACT AND CIRCUMSTANCES OF THE CASE: A. THE LEARNED ASSESSING OFFICER HAS ERRED IN ALLOWING THE CLAIM OF DEDUCTION U/S 54B TO RS.NIL AS AGAINST RS.8,82,665/ - AS CLAIMED BY THE APPELLANT. B. THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE DIS ALLOWANCE OF DEDUCTION U/S 54B AS CLAIMED BY THE APPELLANT. C. THAT THE LEARNED A.O. HAS ALLOWED THE INAPPROPRIATE DEDUCTION U/S 54 TOTALLY BASED ON THE ESTIMATION AND SURMISES AND HENCE IS BAD IN LAW. THEREFORE, THE DEDUCTION WITHDRAWN AND UPHELD BY THE LEARNED CIT(A) U/S 54 NEEDS CANCELLATION. U/S 54 NEEDS CANCELLATION. 3. THE APPELLANT REQUEST FOR ADDITION OF ADDITIONAL EVIDENCES IF ANY, REQUIRED IN RESPECT OF THE GROUNDS OF APPEAL. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PRESSED THE ISSUE RAISED VIDE GROUND OF APPEAL NO.1, WHEREIN HE ALLEGED THAT NO PROPER OPPORTUNITY WAS GIVEN BY THE CIT(A) BEFORE DECIDING THE PRESENT APPEAL. THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IS THUS, ADJUDICATED BEFORE GOING INTO MERITS OF THE APPEAL. 5. THE ASSESSMENT IN TH E CASE OF ASSESSEE WAS COMPLETED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. THE ASSESSING OFFICER HAD COMPUTED THE INCOME FROM LONG TERM CAPITAL GAINS ON SALE OF LAND AND HAD ALSO MADE ADDITION ON ACCOUNT OF BUSINESS INCOME. AGAINST THE ORDER PASSED BY THE ASSESSING ITA NO S . 599 TO 60 1 /PN/20 1 6 SANTOSH SRIPATI GHOSALE & ORS 4 OFFICER, THE ASSESSEE HAS FILED AN APPEAL BEFORE THE CIT(A). THE CIT(A) IN THE ORDER DATED 23.12.2015 MENTIONS THAT THE JURISDICTION OF THE CASE WAS WITH HER W.E.F. 15.11.2014. IT IS FURTHER ALLEGED THAT IN RESPONSE TO NOTICE ISSUED, SHRI S UMIT GHODKE, C.A. ATTENDED ON BEHALF OF THE ASSESSEE. VIDE PARA 3.2 AT PAGE 4 OF THE APPELLATE ORDER, THE CIT(A) OBSERVED THAT THE ASSESSEE HAD NOT MADE ANY SUBMISSIONS IN RESPECT OF GROUNDS OF APPEAL RAISED IN APPEAL. HOWEVER, IT IS FURTHER OBSERVED THA T THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE DURING THE APPELLATE PROCEEDINGS, EXPRESSED HIS INABILITY TO PRODUCE / SUBMIT ANY PAPERS / DOCUMENTS IN SUPPORT OF THE CONTENTIONS RAISED. IN VIEW THEREOF, THE ORDER OF ASSESSING OFFICER WAS UPHELD ON MERI TS. 6. THE CONTENTION OF THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE THE TRIBUNAL WAS THAT NO AUTHORIZATION OR ANY POWER OF ATTORNEY HAS BEEN GIVEN TO ANY SUCH PERSON SHRI SUMIT GHODKE. HE FURTHER STRESSED THAT THE ASSESSEE VID E GROUND OF APPEAL NO.1 RAISED BEFORE THE TRIBUNAL HAS VEHEMENTLY STRESSED THAT SUCH A PERSON WAS NEVER AUTHORIZED BY THE ASSESSEE AND ALSO NO SUBMISSION OR REPRESENTATION WAS MADE IN THE APPELLATE PROCEEDINGS AT ALL. HE FURTHER CONTENDED THAT IN SUCH CIR CUMSTANCES, NO PROPER OPPORTUNITY HAS BEEN GRANTED BY THE CIT(A) BEFORE DECIDING THE APPEAL. HE ALSO MENTION THAT THE CIT(A) HAD ENHANCED THE INCOME WITHOUT GIVING ANY ENHANCEMENT NOTICE TO THE ASSESSEE IN ITA NO .601/PN/2016 7. THE LEARNED DEPARTMENTAL R EPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON THE ORDER OF CIT(A). 8. ON PERUSAL OF RECORD AND APPELLATE ORDER PASSED BY THE CIT(A), IT TRANSPIRES THAT THERE IS MENTION OF VESTING OF JURISDICTION WITH CIT(A) - 3, PUNE. ITA NO S . 599 TO 60 1 /PN/20 1 6 SANTOSH SRIPATI GHOSALE & ORS 5 THOUGH, THERE I S MENTION IN THE APPELLATE ORDER THAT IN RESPONSE TO NOTICE ISSUED, SHRI SUMIT GHODKE, C.A. ATTENDED ON BEHALF OF THE ASSESSEE, BUT THERE IS NO MENTION ABOUT THE DATES OF HEARING FIXED BEFORE THE APPELLATE AUTHORITY. FURTHER, VIDE PARA 3.2, THE CIT(A) OBS ERVED THAT THE ASSESSEE HAD NOT MADE ANY SUBMISSIONS IN RESPECT OF GROUNDS OF APPEAL RAISED AND IN THE NEXT SENTENCE, IT IS POINTED OUT THAT THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAD EXPRESSED HIS INABILITY TO PRODUCE / SUBMIT ANY PAPERS / DOCUMENTS IN SUPPORT OF THE CONTENTIONS RAISED. IN CASE, NO SUBMISSIONS WERE MADE BY THE ASSESSEE, THEN WHERE IS THE OCCASION OF INABILITY TO PRODUCE / SUBMIT ANY PAPERS / DOCUMENTS IN SUPPORT OF THE CONTENTIONS RAISED. IT SEEMS THAT THE ORDER OF CIT(A) SUFFERS FROM INFIRMITY. THE PLEA OF THE ASSESSEE BEFORE THE TRIBUNAL IS THAT NO OPPORTUNITY HAS BEEN ALLOWED TO THE ASSESSEE. FURTHER, HE HAS NOT AUTHORIZED ANY PERSON TO APPEAR BEFORE THE CIT(A) AND HE W AS ALSO NOT AWARE OF ANY SUCH PERSON SHRI SUMIT G HODKE. IN ITA NO.601/PN/2016, THE CIT(A) HAS FAILED TO ISSUE ENHANCEMENT NOTICE BEFORE COMPLETING THE APPELLATE PROCEEDINGS. 9. IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, I AM OF THE VIEW THAT THE CIT(A) HAS NOT PROVIDED REASONABLE OPPORT UNITY OF HEARING TO THE ASSESSEE BEFORE COMPLETING APPELLATE PROCEEDINGS. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ISSUE IS SET - ASIDE TO THE FILE OF CIT(A), WHO SHALL D ECIDE THE SAME AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY WITH NOTICES ISSUED BY THE CIT(A) IN THIS REGARD. THE MATTER IS THUS, SET - ASIDE TO THE FILE OF CIT(A) FOR DE NOVO PROCEEDINGS. THE GROUND OF APPEAL NO.1 RAISED BY THE ASSESSEE IN ALL THE ITA NO S . 599 TO 60 1 /PN/20 1 6 SANTOSH SRIPATI GHOSALE & ORS 6 APPEALS IS THUS, ALLOWED. SINCE THE MATTER HAS BEEN SET - ASIDE TO THE FILE OF CIT(A), THE ISSUE RAISED IN THE APPEAL S ON MERITS HAS NOT BEEN ADJUDICATED. 1 0 . IN THE RESULT, ALL THE APPEALS OF ASSES SEE ARE ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF AUGUST , 201 6 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 8 TH AUGUST , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 3 , PUNE ; 4. / THE CIT - 2 , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE