Hema Viral Joshi, Gandhinagar V. The Income Tax Officer, Ward-2, Gandhinagar

ITA 610/AHD/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 0507 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-09-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 06-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Capital Gains
• Section: 144

Judgement Text

ITA Nos.609 to 612/Ahd/2023 Hema Viral Joshi/Viral Vinodchandra Joshi vs. ITO Asst. Years : 2010-11, 2011-12 & 2012-13 8 11. The Ld. CIT(A) has erred in not considering various facts and in not appreciating the facts and law in their proper perspective. 12. The Appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal. 6. During the course of hearing before us, the Authorised Representative (AR) of the assessee stated that the CIT(A) has not decided the issues on merit and not taken into account facts of both the cases. The AR submitted the common paper book containing various correspondence with AO and CIT(A). 6.1. From the details available in the paper book, we observe that there is a Letter from Viral Vinodchandra Joshi to the Income Tax Officer (dated 14-12-2018) responded to a notice under section 142 of the Act for A.Y. 2011-12. In this letter, he raised concerns about the delayed reopening of his assessment, requested copies of materials and documents used in the investigation, and stated that he was not involved in the transactions related to Gandhinagar Hotels Ltd. He explained that his brother, Shri Pritesh Joshi, had misused his bank account, and he denied knowing individuals mentioned in the notice. We also note that the assessee submitted copy of Bank book (in the case of Hema Viral Joshi) and the copy of assessment order of M/s Pragna Auto Services for A.Y. 2011-12 (in which the brother of Viral Joshi – Shri Pritesh Joshi was a partner). In the assessment order of the said firm M/s Pragna Auto Services, there is reference to money received against sale of shares of Gandhinagar Hotels Ltd. which apparently not considered by the lower authorities. ITA Nos.609 to 612/Ahd/2023 Hema Viral Joshi/Viral Vinodchandra Joshi vs. ITO Asst. Years : 2010-11, 2011-12 & 2012-13 9 6.2. We also noted that in her letter dated 15-02-2019, Ms.Hema Viral Joshi submitted that she did not participate in the banking transactions in the joint savings account in question. The transactions were primarily executed by her husband, Viral Joshi. In the same letter, Ms.Hema Joshi claimed that she had no connection or relationship with Shri Hitesh B. Raval, an advocate involved in the share transactions that led to the tax demands. She asserted that she had never interacted with him, which was crucial since the demand was based on share transactions attributed to him. She also stated that the ITO, Ward 3, Gandhinagar, had passed an order adding Rs.28 lakhs as business income and Rs.1.86 crore as short-term capital gains in the case of Shri Hitesh Raval. She also stated that the addition in her case was based on transactions in the joint account at Gandhinagar Nagarik Co-operative Bank Ltd. (A/c No. 118321116009578), which was jointly held with her husband and her husband, Viral Joshi, was also assessed for transactions related to this account, and the Assessing Officer had made an addition of Rs.98,60,537/- for A.Y. 2011-12 in his case. The letter also highlighted that the joint account transactions were managed by her husband, Viral Joshi. She insisted that both the additions in her case and her husband’s case were related to the same bank account and transactions, and any liabilities should be adjusted accordingly. 6.3. Upon careful consideration of the submissions made by the Authorized Representative (AR) of the assessees and the materials placed on record, it is evident that both Hema Viral Joshi and Viral Vinodchandra Joshi were subjected to ex-parte assessment orders framed under sections 144 and 147 of the Act. In the case of Hema Viral Joshi, her appeals were further ITA Nos.609 to 612/Ahd/2023 Hema Viral Joshi/Viral Vinodchandra Joshi vs. ITO Asst. Years : 2010-11, 2011-12 & 2012-13 10 dismissed by the CIT(A) without condoning the delay, and the substantive issues were not adjudicated on merit. Similarly, in the case of Viral Vinodchandra Joshi, the CIT(A) also failed to appreciate the factual details and passed an ex-parte order upholding the additions made by the Assessing Officer. 6.4. It is further observed that both assessees had provided reasonable explanations for their inability to comply with the assessment proceedings and had placed relevant facts before the lower authorities, which were not properly considered. In particular, Hema Viral Joshi claimed that the cash deposits were redeposits of previously withdrawn amounts, and Viral Vinodchandra Joshi asserted that the transactions related to his bank account were not properly attributed to him but were linked to off-market share dealings, allegedly executed by other family members. These factual submissions, along with supporting documents such as bank books and correspondence with the authorities along with affidavits of both the assessees, have material bearing on the assessments but were overlooked by the CIT(A). 6.5. In light of the above, we find that the orders of the CIT(A) in all four cases are unsustainable as they do not address the merits of the case and have failed to consider the explanations and evidence provided by the assessees. Therefore, in the interest of justice, we hereby set aside the impugned orders passed by the CIT(A) in the cases of both assessees for their respective assessment years and restore the matters to the file of the CIT(A) for fresh adjudication. The CIT(A) is directed to provide a reasonable opportunity to the assessees to present their cases and to decide the issues on merit, after ITA Nos.609 to 612/Ahd/2023 Hema Viral Joshi/Viral Vinodchandra Joshi vs. ITO Asst. Years : 2010-11, 2011-12 & 2012-13 11 considering the relevant facts and evidence. At the same time, we direct the assessees to fully co-operate with the proceedings before the CIT(A) and ensure compliance with all notices and time limits stipulated during the hearing process. Failure to do so, may result in the dismissal of their appeals. Accordingly, these four appeals of the assessee(s) are allowed for statistical purposes. 6.6. In the combined result, the appeals of the assessee (in the case of Hema Viral Joshi) in ITA Nos.609, 610 & 611/Ahd/2023 for AYs 2010-11, 2011-12 & 2012-13 respectively and the appeal of the assessee (in the case of Viral Vinodchandra Joshi) in ITA No.612/Ahd/2023 for AY 2011-12 all are treated as allowed for statistical purposes. Order pronounced in the Open Court on 8 th October, 2024 at Ahmedabad. Sd/- Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER (MAKARAND V. MAHADEOKAR) ACCOUNTANT MEMBER अहमदाबाद/Ahmedabad, िदनांक/Dated 08/10/2024 टी.सी.नायर, व.िन.स./T.C. NAIR, Sr. PS आदेश की ितिलिप अ ेिषत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. थ / The Respondent. 3. संबंिधत आयकर आयु / Concerned CIT 4. आयकर आयु )अपील (/ The CIT(A)/(NFAC), Delhi 5. िवभागीय ितिनिध ,अिधकरण अपीलीय आयकर,राजोकट/DR,ITAT, Ahmedabad, 6. गाड& फाईल / Guard file. आदेशानुसार/ BY ORDER, स ािपत ित //True Copy// सहायक पंजीकार (Asstt. Registrar) आयकर अपीलीय अिधकरण, ITAT, Ahmedabad