Tushar Vilas Gondkar, Ahmednagar V. Income tax Officer, Ahmednagar

ITA 629/PUN/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9169 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 15-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DIRAJ DANDGAVAL
• Keywords: Unexplained cash credit; Unexplained investment; Opportunity of being heard; Principle of natural justice; Application of stay
• Section: 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO , AM . / ITA NO. 629 /P U N/201 7 / ASSESSMENT YEAR : 20 13 - 14 TUSHAR VILAS GONDKAR, M/S. SAI RAJE FOOD BHANDAR, A/P SHIRDI, TAL. RAHATA, AHMEDNAGAR . / APPELLANT PAN:ANMPG2169F VS. THE INCOME TAX OFFICER, WARD 1, AHMEDNAGAR . / RESPONDENT SA NO.10/PUN/2018 ARISING OUT OF ITA NO. 629 /P U N/201 7 ASSESSMENT YEAR : 2013 - 14 TUSHAR VILAS GONDKAR, M/S. SAI RAJE FOOD BHANDAR, A/P SHIRDI, TAL. RAHATA, AHMEDNAGAR . APP LICANT PAN:ANMPG2169F VS. THE INCOME T AX OFFICER, WARD 1, AHMEDNAGAR . RESPONDENT . / ITA NO. 1024 /P U N/201 7 / ASSESSMENT YEAR : 20 13 - 14 GAVHANE SANJAY DAGADU, A/P SHIRDI, TAL. RAHATA, AHMEDNAGAR . / APPELLANT PAN:AHYPG9848F VS. THE INCOME TAX OFFICER, WARD 1, AHMEDNAGAR . / RESPONDENT ITA NO S . 629 & 1024 /P U N/20 1 7 SA NOS.10 & 09/PUN/2018 2 SA NO.09/PUN/2018 ARISING OUT OF ITA NO. 1024 /P U N/201 7 ASSESSMENT YEAR : 2013 - 14 GAVHANE SANJAY DAGADU, A/P SHIRDI, TAL. RAHATA, AHMEDNAGAR . APP LICANT PAN:AHYPG9848F VS. THE I NCOME TAX OFFICER, WARD 1, AHMEDNAGAR . RESPONDENT ASSESSEE BY : SHRI DIRAJ DANDGAVAL RESPONDENT BY : SHRI AJAY MODI, JCIT / DATE OF HEARING : 2 0 .0 3 . 201 8 / DATE OF PRONOUNCEMENT: 23 . 0 3 .201 8 / ORDER PER SUSHMA CHOWLA, J M : BOTH THE APPEALS FILED BY TWO DIFFERENT ASSESSEE ARE AGAINST SEPARATE ORDER S OF CIT (A) - 2, PUNE , BOTH DATED 07 . 11 .201 6 RELATING TO ASSESSMENT YEAR 20 13 - 14 AGAINST RESPECTIVE ORDERS PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . BOTH THE ASSESSEES HAVE ALSO FILED THE CAPTIONED STAY APPLICATIONS. 2. BOTH THE APPEALS OF TWO DIFFERENT ASSESSEES AND STAY APPLICATIONS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. IN ORDER TO ADJUDICATE THE ISSUE, WE MAKE REFERENCE TO FACTS IN ITA NO.629/PUN/2016. 3 . THE ASSESSEE IN ITA NO. 629 /PUN/201 6 HAS RAISED THE FOLLOWING GROUND S OF APPEAL : - ITA NO S . 629 & 1024 /P U N/20 1 7 SA NOS.10 & 09/PUN/2018 3 1 WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS E RRED IN ADDING RS.8,20,000/ - ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN BANK ACCOUNT, THOUGH THE SAME WAS EXPLAINED DURING THE COURSE OF PROCEEDINGS. 2 WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN ADDING RS.6,00,000/ - ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN BANK ACCOUNT, THOUGH THE SAME WAS EXPLAINED DURING THE COURSE OF PROCEEDINGS. 3 WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN ADDING RS.15,00.000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT, THOUGH THE SAME WA S PAID BY ASSESSEE IN COURT AS DEPOSIT AND NOTHING WAS ASKED FOR BY THE LD. A.O. IN THIS REGARD, THUS VIOLATING PRINCIPLES OF NATURAL JUSTICE. 4 WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN ADDING RS . 10,00,000/ - ON ACCOUNT OF UNEX PLAINED INVESTMENT, THOUGH THE SAME WAS PAID BY ASSESSEE IN COURT AS DEPOSIT AND THOUGH NOTHING WAS ASKED FOR BY THE LD. A.O. IN THIS REGARD THUS VIOLATING PRINCIPLES OF NATURAL JUSTICE. 5 WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRE D IN ADDING RS . 45,23,980/ - ON ACCOUNT OF BEING UNEXPLAINED, THOUGH THE SAME IS JUST THE OPENING BALANCE OF CAPITAL ACCOUNT OF THE ASSESSEE AND HAS NO IMPLICATIONS FOR THE YEAR UNDER CONSIDERATION 6 WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT GRANTING REQUISITE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE - APPELLANT . 4. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEAL AGAINST MERITS OF ADDITION BUT BY WAY OF GROUND OF APPEAL NO.6, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF CIT(A) IN NOT GRANTING REQUISITE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD POINTS OUT THAT ONLY TWO DATES OF HEARING ARE REFERRED IN THE ORDER OF CIT(A) AND THE FIRST NOTICE OF HEARING WAS N OT SERVED UPON THE ASSESSEE. THE CIT(A) ACKNOWLEDGES THAT THE SAME WAS UNSERVED UPON THE ASSESSEE AND NOTICE CAME BACK. THEREAFTER, ANOTHER NOTICE WAS SERVED UPON THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE. HOWEVER, NONE APPEARED IN RESPONSE TO THE SAID NOTICE AND THE APPEAL OF ASSESSEE WAS DISMISSED ITA NO S . 629 & 1024 /P U N/20 1 7 SA NOS.10 & 09/PUN/2018 4 UPHOLDING THE ORDER OF ASSESSING OFFICER ON THE GROUND THAT DURING APPELLATE PROCEEDINGS, NO SUBMISSIONS OR COUNTER ARGUMENTS WERE MADE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN STAY PROCEEDINGS HAS FILED AN AFFIDAVIT EXPLAINING THE REASONS FOR NON APPEARANCE BEFORE THE CIT(A). THE ASSESSEE IS AGGRIEVED BY EXPARTE ORDER PASSED BY CIT(A). 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT T HAT THE ASSESSEE FAILED TO RESPOND TO NOTICE S OF HEARING SENT BY THE CIT(A) AND HENCE, DISMISSAL OF APPEAL. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE JURISDICTIONAL ISSUE WHICH IS RAISED BEFORE US IS AGAINST EXPARTE ORDER PASSED BY THE CIT(A) WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE FIRST NOTICE ISSUED BY THE CIT(A) HAS ADMITTEDLY NOT BEEN SERVED UPON THE ASSESSEE AND THE SAME HAS BEEN RETURNED. THE SECOND NOTICE OF HEARING WAS ISSUED TO THE LEARN ED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE, AGAINST WHICH ALSO, THERE WAS NON - COMPLIANCE. HOWEVER, PRINCIPLES OF NATURAL JUSTICE DEMAND THAT PROPER OPPORTUNITY OF HEARING SHOULD BE ALLOWED TO THE ASSESSEE AND FURTHER ALSO REQUIRES THE ADJUDICATING AUTH ORITY TO DISPOSE OF THE MATTER AFTER DUE CONSIDERATION OF ISSUES AND NOT SIMPLY UPHOLD THE ORDER OF ASSESSING OFFICER. THE CIT(A) HAS FAILED NOT ONLY TO GIVE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BUT HAS FAILED TO DISCUSS THE ISSUE ON MERITS. IN VIEW THEREOF, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF CIT(A), WHO SHALL AFFORD REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO - OPERATE AND FILE THE REQUISITE DETAILS BEFORE THE CIT(A), WHO IN TUR N, SHALL DECIDE THE ISSUES ON MERITS, IN ACCORDANCE WITH LAW. THE GROUND OF APPEAL NO.6 RAISED BY THE ASSESSEE IS THUS, ALLOWED FOR STATISTICAL PURPOSES AND ITA NO S . 629 & 1024 /P U N/20 1 7 SA NOS.10 & 09/PUN/2018 5 IN VIEW OF OUR DECISION OF SETTING ASIDE THE ORDER OF CIT(A), BALANCE GROUNDS OF APPEAL BECOME ACA DEMIC IN NATURE. THUS , THE STAY APPLICATION MOVED BY THE APPLICANT IS DISMISSED. 8. IN ITA NO.1024/PUN/2016, THOUGH THE ASSESSEE HAS RAISED THE ISSUE AGAINST MERITS OF ADDITION BUT IN THE AFFIDAVIT FILED DURING STAY PROCEEDINGS, THE MAIN PLEA OF ASSESSEE WAS THAT IT WAS NOT GIVEN PROPER OPPORTUNITY OF HEARING BY THE CIT(A) BEFORE PASSING EXPARTE ORDER. DURING THE COURSE OF HEARING , THE ASSESSEE CAN RAISE AN ISSUE OTHER THAN ISSUE RAISED IN GROUNDS OF APPEAL . WE ADMIT THE SAME AND IN VIEW OF OUR DECISION IN THE PARAS HEREINABOVE ON SIMILAR FACTS, WE SET ASIDE THE ORDER OF CIT(A) . ACCORDINGLY, THE CIT(A) IS DIRECTED TO ALLOW REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THE ASSESSEE IS ALSO DIRECTED TO CO - OPERATE AND FILE THE REQUISITE DETAILS BEFORE THE CIT(A), WHO IN TURN, SHALL DECIDE THE ISSUES ON MERITS, IN ACCORDANCE WITH LAW. THUS , THE STAY APPLICATION MOVED BY THE APPLICANT IS DISMISSED. 9 . IN THE RESULT, BOTH THE A PPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND BOTH THE STAY APPLICATIONS ARE DISMISSED. ORDER PRONOUNCED ON THIS 23 RD DAY OF MARCH , 201 8 . SD/ - SD/ - ( D.KARUNAKARA RAO ) (SUSH MA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 23 RD M ARCH , 201 8 . GCVSR ITA NO S . 629 & 1024 /P U N/20 1 7 SA NOS.10 & 09/PUN/2018 6 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 2 , PUNE ; 4. THE PR. CIT 1 , PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY OR DER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE